Tuesday, May 13th, 2008

Two For The Price Of One

United States v. Douglas, No. 06-0581-cr (2d Cir. May 13, 2008) (Kearse, Katzmann, CJJ, Rakoff, DJ)

Douglas was convicted of killing a Brink’s employee while attempting to steal money from Citibank ATMS that were serviced by Brink’s. He was sentenced to life in prison.

Douglas had originally been appointed a federal defender. But, once he was indicted on a death-eligible charge, the federal defender requested the appointment of a second attorney, “learned counsel” under 18 U.S.C. § 3005, and the court granted the request. About six months later, the government announced that it would not seek the death penalty, but Douglas asked the court to keep both attorneys on the case. The court rejected the request, but allowed Douglas to choose the attorney he wanted. On appeal, he renewed the claim that he was entitled to two attorneys under 18 U.S.C. § 3005.

The circuit disagreed. The statute, which provides for the appointment of death-qualified counsel once the defendant is indicted for a capital crime, does not say whether the appointment must continue once the government decides not to seek the death penalty. Nonetheless, the court, in a decision of first impression here, joined the First, Third, Ninth and Eleventh Circuits and concluded that, once the government decides not to seek the death penalty, the case is no longer a capital case. The court chose not to follow the Fourth Circuit, which, surprisingly, has a different rule.

It concluded, however, by noting that its holding was only that a district court was not required to continue with two attorneys once the case is no longer capital. This does not preclude the court, in its discretion, from maintaining the dual appointment in a future case.

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