                  IN THE SUPREME COURT OF THE STATE OF MONTANA



IN THE MATTER OF THE PROPOSED ORDER
ESTABLISHING STANDARDS FOR COMPETENCY
OF COUNSEL APPOINTED TO REPRESENT                                        No. 97-326
INDIGENT PERSONS IN PROCEEDINGS UNDER
TITLE 46, CHAPTER 2 1, WHO ARE SENTENCED
TO DEATH

IN THE MATTER OF THE PROPOSED ORDER
ESTABLISHING STANDARDS FOR COMPETENCY
OF TRIAL AND APPELLATE COUNSEL
APPOINTED TO REPRESENT INDIGENT
PERSONS IN CAPITAL CASES


                                          ORDER


       On December 30, 1998, this Court issued an Order granting the bench and bar of this
State, and any other interested persons, 90 days to prepare and file with the Clerk of this
Court written comments, suggestions, or criticisms of the Proposed Standards for
Competency of Counsel for Indigent Persons in Death Penalty Cases. Said comment period
having expired and this Court having deemed this matter submitted for final determination,
we now adopt these standards. Therefore,
       IT IS ORDERED that the attached Standards for Competency of Counsel for Indigent
Persons in Death Penalty Cases shall be effective for appointments of counsel from and after
January 1,200O.
       IT IS FURTHER ORDERED that the Clerk of this Court provide copies of this Order,
together with a copy of the attached standards, to each of the Clerks of the District Courts of
the State of Montana, to each of the District Judges of the State of Montana, to each member
of the Proposed Standards Committee and to the State Bar of Montana, with the request that
a copy of this Order and the attached standards be published in the next possible issue of the
Mofltnnn Lnwyer.
    Chief   Justice
/
         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 file with the district court, within 60 days after arraignment,
         a statement indicating whether the prosecutor believes that sufficient evidence
         exists to establish by the appropriate standard of proof one or more of the
         statutory aggravating factors necessary to impose the death penalty under
         Montana law, and whether the prosecutor intends to seek the death penalty
         upon a conviction in the case.
                b.     The prosecutor shall not identify in the notice the aggravating
         factor or factors believed to be present onthe evidence on which the prosecutor
         will rely to prove an aggravating factor, but upon request by the defense the
         prosecutor shall identify to defense counsel the aggravating factor(s) the
         prosecutor believes are present and the evidence supporting the existence of
         the aggravating factor(s).
                C.     The prosecutor may withdraw the notice provided in this
         standard at any time.
                d.     If the prosecutor does not indicate a belief that the death penalty
         may be appropriate in a notice filed within 60 days after arraignment as
         providqd by this standard, but later acquires evidence that, together with any
         other evidence, leads the prosecutor to conclude that sufficient evidence exists
         to establish, to the appropriate standard of proof, one or more of the statutory
         aggravating factors necessary to impose the death penalty upon a conviction
         in the case, the prosecutor may file the notice provided in this section, only
         with leave of the district court, after consideration of the cause for the delay
         and any prejudice to the defendant.

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       2. Upon establishment of indigency as provided in Title 46, Chapter 8, Part i,
Montana Code Annotated, and identification of a case 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
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 courtpvo hat
              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 capita1 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 capita1 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$hat 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
              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.


II 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 attorneys 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 attorneys, must be members in good standing of the
                 State Bar of Montana or admitted to practice before the district courtpro hat
                 vice.                                     .1
                         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 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

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               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.


III 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
an attorney who has been admitted pro hat 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 hat 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
              author@ 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;

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                          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 defendant or the state in the
               direct appeal of three felony convictions; and
                          d. Experience as counsel for either the petitioner or the state in three
               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 5 46-l 8-102(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 to the
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 II, Section 24 of the Montana Constitution. See Strickland v. Washington (1984), 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       Pursuant to 3 46-21-201(3)(f), 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.
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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
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

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phone number; along with a current resume, curricuhm vitae and statement ofqualifications;
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 the 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.




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