             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        NO. 97-326


IN THE MATTER OF AMENDING THIS                                 1
COURT'S STANDARDS FOR COMPETENCY                               1
OF COUNSEL FOR INDIGENT PERSONS W                              1
DEATH PENALTY CASES                                            1

       On June 29, 1999, this Court adopted Standards for Competency of Counsel for

Indigent Persons in Death Penalty Cases.

       By reason of the adoption of $46-1-401, MCA by the 2001 Legislature, it is necessary

that Standard I be amended so as to avoid conflict with the statute.

       Therefore,

       IT IS ORDERED that Standard I of this Court's June 29, 1999, Standards for

Competency of Counsel for Indigent Persons in Death Penalty Cases is AMENDED in those

respects indicated on Exhibit "A" attached hereto and, by this reference, made a part hereof

for all purposes. Underscored material is added; stricken material is deleted.

       IT IS FURTHER ORDERED that the Standards for Competency of Counsel for

Indigent Persons in Death Penalty Cases, as amended, in the form attached hereto as Exhibit

"B" and by this reference made a part hereof for all purposes are ADOPTED.

       IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by

mail with Exhibits "A" and "B" to each of the Judges of the District Courts of the State of

Montana; to the Clerks of the District Courts of the State of Montana; to each attorney who

                                             1
has registered with the Clerk of this Court pursuant to Standard V; to the Attorney General

for the State of Montana; to the Code Commissioner for the State of Montana; to the

Executive Director of the State Bar of Montana with a request that this order and the exhibits

be published in the next available issue of the Montana Lawyer and posted to the State Bar's

website; and to the State Law Librarian with a request that this Order and the exhibits be

posted to the State Law Library website.

       Dated this   &*day of July, 2002.                                     n




                                             2
         STANDARDS FOR COMPETENCY OF COUNSEL FOR
          INDIGENT PERSONS IN DEATH PENALTY CASES




I    TRIAL PHASE

1.


                a.     A   any case in which death is a potential punishment, the

         prosecutor shall complv with 4 46-1-401. MCA, and shall file with the district

         court, within 60 days after arraignment, and serve upon counsel of record




                            a notice stating whether the prosecutor intends to seek the

         death penalty upon a conviction in the case.




                b . c The prosecutor may withdraw the notice of intent to seek the death

                                                                           Exhibit "A"



                                               1
               penaltv provided in this standard at any time by filing with the district court

               and serving counsel of record with a notice of withdrawal of intent to seek the

               death oenalty.
                       3    Tr
                       u.   11




        2. Upon establishment of indigency as provided in Title 46, Chapter 8, Part 1,

Montana Code Annotated, and identification of a cases as one in which the prosecutor

believes sufficient evidence exists to show that one or more statutory aggravating factors

under   3 46-18-303, MCA, can be proved to the appropriate standard of proof, the district
court shall appoint two counsel to represent the defendant.

        3. In selecting appointed counsel, the district court shall secure sufficient information

from counsel to be appointed either in writing or on the record, to satisfy the district court

that counsel possess the following minimum qualifications:


                                                2
                STANDARDS FOR COMPETENCY OF COUNSEL FOR
                 INDIGENT PERSONS IN DEATH PENALTY CASES



I       TRIAL PHASE

1.


                       a.       In any case in which death is a potential punishment, the

               prosecutor shall comply with $ 46-1-401, MCA, and shall file with the district

               court, within 60 days after arraignment, and serve upon counsel of record a

               notice stating whether the prosecutor intends to seek the death penalty upon a

               conviction in the case.

                       b. The prosecutor may withdraw the notice of intent to seek the death

               penalty provided in this standard at any time by filing with the district court

               and serving counsel of record with a notice of withdrawal of intent to seek the

               death penalty.

        2. Upon establishment of indigency as provided in Title 46, Chapter 8, Part 1,

Montana Code Annotated, and identification of a cases as one in which the prosecutor

believes sufficient evidence exists to show that one or more statutory aggravating factors

under   5 46-18-303, MCA, can be proved to the appropriate standard of proof, the district
court shall appoint two counsel to represent the defendant.

        3. In selecting appointed counsel, the district court shall secure sufficient information

from counsel to be appointed either in writing or on the record, to satisfy the district court

                                                                                    Exhibit "B"

                                                1
that counsel possess the following minimum qualifications:

                     a. Both appointed attorneys must be members in good standing of the

             State Bar of Montana or admitted to practice before the district courtpro hac

             vice.

                     b. Both counsel must have completed or taught, in the two-year period

             prior to appointment or within 90 days after the appointment, a continuing

             legal education course or courses, approved for credit by the appropriate

             authority under the rules adopted by the Montana Supreme Court, at least 12

             hours of which deal with subjects related to the defense of persons accused or

             convicted of capital crimes.

                     c. Counsel, either individually or in combination, must have had

             significant experience within the past 5 years in the trial of criminal cases to

             conclusion, including a capital case or a case involving charges of or

             equivalent to deliberate homicide under Montana law.

                     d. The nature and volume of the workload of both appointed counsel

             is such that they will have the ability to spend the time necessary to defend a

             capital case.

                     e. Counsel are familiar with and have a copy of the current American

             Bar Association standards for the defense of capital cases. By adoption of this

             provision, the Montana Supreme Court does not hold that adherence to the


                                                    2
                guidelines is required as a condition of providing effective assistance of

                counsel, or that failure to adhere to the guidelines gives rise to an inference of

                ineffective assistance of counsel.


I1     APPEAL PHASE

          1. If a defendant is sentenced to death and is determined by the district court to be

indigent, the district court shall appoint two attomeys to represent the defendant on direct

appeal.

       2. In selecting appointed counsel for appeal, the district court shall secure sufficient

information from counsel to be appointed, either in writing or on the record, to satisfy the

district court that counsel possess sufficient appellate experience to provide adequate

representation to the defendant on appeal and the following minimum qualifications:

                        a. Both appointed attomeys must be members in good standing of the

                State Bar of Montana or admitted to practice before the district courtpro hac

                vice.

                        b. Both counsel must have completed or taught, in the two-year period

                prior to appointment or within 90 days after the appointment, a continuing

                legal education course or courses, approved for credit by the appropriate

                authority under the rules adopted by the Montana Supreme Court, at least 12

                hours of which deal with subjects related to the defense of persons accused or

                convicted of capital crimes.

                                                       3
                     c. Counsel, either individually or in combination, must have had

              significant experience within the past 5 years in the appeal of criminal cases,

              including a capital case or a case involving charges of or equivalent to

              deliberate homicide under Montana law.

                     d. The nature and volume of the workload of both appointed counsel

              is such that they will have the ability to spend the time necessary to appeal a

              capital case.

                     e. Counsel are familiar with and have a copy of the current American

              Bar Association standards for the defense of capital cases By adoption of this

              provision, the Montana Supreme Court does not hold that adherence to the

              guidelines is required as a condition of providing effective assistance of

              counsel, or that failure to adhere to the guidelines gives rise to an inference of

              ineffective assistance of counsel.


I11    POSTCONVICTION PHASE

       The following standards shall apply to counsel appointed by the district court to

represent indigent petitioners in postconviction proceedings under Title 46, Chapter 21, who

are sentenced to death.

       1. The district court shall follow the procedure set forth in   5 46-21-201, MCA, in
appointing counsel in state postconviction cases.

      2. The district court shall appoint two counsel. One of the appointed counsel may be

                                              4                                                    T
an attorney who has been admitted pro hac vice. Lead counsel shall satisfy all of the

following:

                     a. He or she must be an active member in good standing of the

              Montana State Bar or be admittedpro hac vice.

                     b. He or she must have at least 5 years criminal trial, criminal appellate,

              or state or federal postconviction experience, which experience may have been

              obtained in Montana or in another jurisdiction.

                     c. He or she must have completed or taught, in the two-year period

              prior to appointment or within 90 days after the appointment, a continuing

              legal education course or courses, approved for credit by the appropriate

              authority under the rules adopted by the Montana Supreme Court, at least 12

              hours of which deal with subjects related to the defense of persons accused or

              convicted of capital crimes.

       3. In addition, the appointed counsel, either individually or in combination, shall have

the following qualifications obtained in Montana or another jurisdiction:

                     a. Experience as counsel for either the defendant or the state in the trial

              of one deliberate homicide case;

                     b. Experience as counsel for either the defendant or the state in the trial

              of three felony cases;

                     c. Experience as counsel for either the petitioner or the state in three


                                                      5
              cases involving claims for state postconviction or federal habeas corpus

              review.

       4. As used in this Order, "trial" means a case concluded with a judgment of acquittal

under $46-18-102(2), MCA, or submission to the trial court or jury for decision and verdict.


IV     EFFECT OF FAILURE TO ADHERE TO STANDARDS

       No error or omission in the procedure outlined in the trial or appellate standards shall

constitute a ground for relief from a conviction or sentence unless the defendant shows that

the standards were not followed in a material way and that counsel's performance fell so far

below the standard of reasonably effective counsel, and was sufficiently prejudicial t other

defense of the defendant. as to constitute a denial of effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution or

Article 11, Section 24 of the Montana Constitution. See Strickland v. Wushington (1984), 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

       Pursuant to   5   46-21-201(3)(0, MCA, any failure to adhere to the standards for

appointment of postconviction counsel may not serve as a basis for a claim for

postconviction relief.


V      REGISTRY OF COUNSEL AVAILABLE FOR APPOINTMENT

       1. For the convenience of the district courts, the Clerk of the Supreme Court shall

maintain a registry of counsel who are qualified under these standards, who are available for


                                              6
appointment in capital cases in one or more of the phases referred to, and who desire to have

their names and pertinent data included in this registry. Qualified counsel wishing to be

included in this registry shall submit to the Clerk in writing counsel’s name, address and

phone number; along with a current resume, curriculum vitae and statement of qualifications;

pertinent legal education courses, training, experience in other capital cases or cases

involving charges of or equivalent to deliberate homicide under Montana law; the courts and

jurisdictions in which counsel is admitted to practice and is in good standing; and the phase

or phases for which counsel is qualified for appointment. Counsel are encouraged to update

this data from time to time. For efficiency and convenience, the Clerk may prescribe the use

of a form or forms for purposes of marshaling this data and maintaining this registry.

       2. On request of a district court, the Clerk shall make available to the district court

so much of the data in the registry as the district court may require, provided that ht Clerk

may charge to the district court the reasonable costs of photocopying and mailing or faxing

such data.

       3. Nothing herein shall be deemed to require the Clerk to independently seek, solicit,

gather update or verify the accuracy or currency of names of and data pertaining to counsel

to be included in, furnished for or maintained in this registry. It shall be the sole duty of the

appointing district court to secure sufficient information from counsel to be appointed to

satisfy the district court that counsel possesses the minimum qualifications required by these

standards.


                                               7
