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Virginia Indigent Defense Commission


Statutory Authority and Qualifications

Virginia Code §§ 19.2-163.01 and 19.2-163.8 require the Virginia Indigent Defense Commission, and for capital defense counsel, the Supreme Court of Virginia, to compile and maintain a list of attorneys qualified to represent accused persons who are in need of criminal indigent defense services.

STATUTORY AUTHORITY:

Under Code of Virginia, §19.2-163.01, the Commission shall have the following powers and duties:

  1. To publicize and enforce the qualification standards for attorneys seeking eligibility to serve as court-appointed counsel for indigent defendants pursuant to § 19.2-159.
  2. To develop initial training courses for attorneys who wish to begin serving as court-appointed counsel, and to review and certify legal education courses that satisfy the continuing requirements for attorneys to maintain their eligibility for receiving court appointments.
  3. To maintain a list of attorneys admitted to practice law in Virginia who are qualified to serve as court-appointed counsel for indigent defendants based upon the official standards and to disseminate the list by July 1 of each year and updates throughout the year to the Office of the Executive Secretary of the Supreme Court for distribution to the courts. In establishing and updating the list, the Commission shall consider all relevant factors, including but not limited to, the attorney's background, experience, and training and the Commission's assessment of whether the attorney is competent to provide quality legal representation.
  4. To establish official standards of practice for court-appointed counsel and public defenders to follow in representing their clients, and guidelines for the removal of an attorney from the official list of those qualified to receive court appointments and to notify the Office of the Executive Secretary of the Supreme Court of any attorney whose name has been removed from the list.
  5. To develop initial training courses for public defenders and to review and certify legal education courses that satisfy the continuing requirements for public defenders to maintain their eligibility.

Code of Virginia, §19.2-163.8, provides authority to maintain a list of attorneys who are qualified to represent defendants charged with capital murder or sentenced to death as follows: 

A. The Supreme Court and the Indigent Defense Commission, in conjunction with the Virginia State Bar, shall adopt standards for attorneys admitted to practice law in Virginia who are qualified to represent defendants charged with capital murder or sentenced to death, which take into consideration, to the extent practicable, the following criteria: (i) license or permission to practice law in Virginia; (ii) general background in criminal litigation; (iii) demonstrated experience in felony practice at trial and appeal; (iv) experience in death penalty litigation; (v) familiarity with the requisite court system; (vi) current training in death penalty litigation; (vii) current training in the analysis and introduction of forensic evidence, including deoxyribonucleic acid (DNA) testing and the evidence of a DNA profile comparison to prove or disprove the identity of any person; and (viii) demonstrated proficiency and commitment to quality representation.

B. The Supreme Court and the Indigent Defense Commission shall maintain a list of attorneys admitted to practice law in Virginia who are qualified to represent defendants charged with capital murder or sentenced to death. In establishing such a list, the Court and the Commission shall consider all relevant factors, including but not limited to, the attorney's background, experience, and training and the Court's and the Commission's assessment of whether the attorney is competent to provide quality legal representation.

C. Notwithstanding the requirements of § 19.2-163.7, the judge of the circuit court may appoint counsel who is not included on the list, but who otherwise qualifies under the standards established and maintained by the Court and the Commission.

D. Noncompliance with the requirements of this article shall not form the basis for a claim of error at trial, on appeal, or in any habeas corpus proceeding. The performance of habeas corpus counsel appointed pursuant to this article shall not form a basis for relief in any subsequent habeas corpus proceeding.

E. The Supreme Court and the Indigent Defense Commission shall, in conjunction with the Virginia State Bar, promulgate and thereafter maintain standards for the qualifications of counsel who shall be considered eligible to be placed on the list of qualified attorneys.

MISDEMEANOR, FELONY AND JUVENILE CERTIFICATION QUALIFICATIONS:

Code of Virginia, §19.2-163.03:

A.        Initial qualification requirements. An attorney seeking to represent an indigent accused in a criminal case, in addition to being a member in good standing of the Virginia State Bar, shall meet the specific criteria required for each type or level of case. The following criteria shall be met for qualification and subsequent court appointment:

1.         Misdemeanor cases. To initially qualify to serve as counsel appointed pursuant to § 19.2-159 for an indigent defendant charged with a misdemeanor, the attorney shall: (i) if an active member of the Virginia State Bar for less than one year, have completed six hours of MCLE-approved continuing legal education developed by the Indigent Defense Commission, or (ii) if an active member of the Virginia State Bar for one year or more, either complete the six hours of approved continuing legal education developed by the Commission, or certify to the Commission that he has represented, in a district court within the past year, four or more defendants charged with misdemeanors, or (iii) be qualified pursuant to this section to serve as counsel for an indigent defendant charged with a felony.

2.         Felony cases. a.To initially qualify to serve as counsel appointed pursuant to § 19.2-159 for an indigent defendant charged with a felony, the attorney shall (i) have completed the six hours of MCLE-approved continuing legal education developed by the Commission, and (ii) certify that he has participated as either lead counsel or co-counsel in four felony cases from their beginning through to their final resolution, including appeals, if any.


b. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past year, as lead counsel in four felony cases through to their final resolution, including appeals, if any, the requirement to complete six hours of continuing legal education and the requirement to participate as co-counsel shall be waived.


c. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past five years, as lead counsel in five felony cases through to their final resolution, including appeals, if any, the requirement to participate as either lead counsel or co-counsel in four felony cases within the past year shall be waived.

NOTE:  For felony case requirements, VIDC will only approve cases for which the attorney was involved from the beginning of the case in district court to its final resolution.  Representing juveniles charged with felonies in J&DR will not qualify unless the juvenile was transferred to circuit court to be tried as an adult.  Probation violations do not qualify.  Cases involving direct indictments will be considered on a case by case basis.
 
NOTE: For the purposes of the certification requirements, “Co-Counsel” participates with lead counsel in every critical aspect of the representation of the defendant.  Co-counsel is not necessarily counsel of record.

3.         Juvenile and Domestic Relations cases. a. To initially qualify to serve as appointed counsel in a juvenile and domestic relations district court pursuant to subdivision C 2 of § 16.1-266, the attorney shall (i) have completed the six hours of MCLE-approved continuing legal education developed by the Commission, (ii) have completed four additional hours of MCLE-approved continuing legal education on representing juveniles developed by the Commission, and (iii) certify that he has participated as either lead counsel or co-counsel in four cases involving juveniles in a juvenile and domestic relations district court.


b. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has, within the past year, been lead counsel in four cases involving juveniles in juvenile and domestic relations district court, the requirement to complete the 10 hours of continuing legal education shall be waived.


c. If the attorney has been an active member of the Virginia State Bar for more than one year and certifies that he has participated, within the past five years in five cases involving juveniles in a juvenile and domestic relations district court, the requirement to participate as either lead counsel or co-counsel in four juvenile cases shall be waived.

NOTE:  For juvenile case requirements, VIDC will only approve cases in which the attorney was involved from the beginning of the case to its final resolution.  The attorney must represent a juvenile defendant.  A case may be deemed to be concluded for purpose of certification once deferred disposition is entered.  Post trial matters such as probation violations and failing to comply will not qualify. 
  
NOTE: For the purposes of the certification requirements, “Co-Counsel” participates with lead counsel in every critical aspect of the representation of the defendant.  Co-counsel is not necessarily counsel of record.

B.        Requalification requirements. After initially qualifying as provided in subsection A, an attorney shall maintain his eligibility for certification biennially by notifying the Commission of completion of at least six hours of Commission and MCLE-approved continuing legal education. The Commission shall provide information on continuing legal education programs that have been approved.

In addition, to maintain eligibility to accept court appointments under subdivision C 2 of § 16.1-266, an attorney shall complete biennially thereafter four additional hours of MCLE-approved continuing legal education on representing juveniles, certified by the Commission.

CAPITAL CERTIFICATION QUALIFICATIONS:

An attorney whose application is approved will be included in the capital appointment list required by Va. Code Sec. 19.2-163.8(B) for a period of four years.  The expiration of an attorney’s membership on the capital appointments list will not affect the validity of that attorney’s prior appointment in any pending case.

Capital Trial Lead Counsel

1.  Be licensed to practice law and in good standing;

2.  Initial Capital Certification Training; and

3.  Describe with particularity the basis of the attorney’s belief that he or she is qualified for such appointment, including:

i.  A listing of each capital and non-capital murder case in which the attorney served as counsel over the previous ten years, naming the client, jurisdiction, judge, prosecuting attorney, and co-counsel if any;

ii.  A listing of all relevant training experiences during the previous five years; and

iii.  Any other experience or employment bearing on the attorney’s qualifications.

Re-Certification: Within two years after being initially certified, complete at least ten hours of specialized training in capital litigation. (The Annual Capital Defense Workshop will meet the re-certification requirement). 

Capital Trial Co-Counsel

1.  Be licensed to practice law and in good standing; 


2.  Initial Capital Certification Training; and


3.  Describe with particularity the basis of the attorney’s belief that he or she is qualified for such appointment, including:

i.  A listing of each capital and non-capital murder case in which the attorney served as counsel over the previous ten years, naming the client, jurisdiction, judge, prosecuting attorney, and co-counsel if any;

ii.  A listing of all relevant training experiences during the previous five years; and

iii.  Any other experience or employment bearing on the attorney’s qualifications.

Re-Certification: Within two years after being initially certified, complete at least ten hours of specialized training in capital litigation. (The Annual Capital Defense Workshop will meet the re-certification requirement). 

Capital Appellate Counsel

1.  Be licensed to practice law and in good standing;


2.  Initial Capital Certification Training;


3.  Be thoroughly familiar with the rules and procedures of appellate practice;


4.  Have experience as counsel in direct appeals of felony convictions; and


5.  Have demonstrated a commitment to providing zealous advocacy and high quality legal representation

Re-certification: Within two years after being initially certified, complete two hours of particularized capital appellate training.

Capital Habeas Counsel

1.  Be licensed to practice law and in good standing;

2. Initial Capital Certification Training;

3.  Six additional hours of particularized training in capital habeas procedure and practice (Attorneys with significant experience in capital habeas litigation may apply for a waiver by calling (804) 662-7249, ext. 139);

4.  Be thoroughly familiar with the rules and procedures related to habeas proceedings; and

5.  Have demonstrated a commitment to providing zealous advocacy and high quality legal representation.

Re-Certification: Within two years after being initially certified, complete six hours of particularized capital habeas training.

Waiver of Initial Capital Certification Training: Qualified and experienced capital attorneys may qualify for a waiver of the initial certification training through the completion of a comprehensive application that demonstrates the attorney’s:

A.  Substantial knowledge and understanding of the following:

1.  Relevant state and federal law, including the representation of foreign nationals;

2.  Pleading and Motions practice;

3.  Pre-trial investigation, preparation, and theory development regarding guilt/innocence and penalty;

4.  Jury selection;

5.  Trial preparation and presentation, including the use of experts;

6.  Investigation, preparation, and presentation of mitigating evidence;

7.  Investigation, preparation, and presentation of mental health evidence including intellectual disability;

8.  Ethical considerations particular to capital defense representation;

9.  Preservation of the record for post-conviction review and capital appellate practice;

10.  Relationship building with the client and the client’s family;

11.  Presentation and rebuttal of scientific evidence.

B.  Experience in providing high quality legal representation to persons charged with capital murder;

C.  Skill in the management and conduct of complex negotiations and capital litigation;

D.  Skill in legal research and drafting of litigation documents;

E.  Skill in oral advocacy;

F.  Skill in the use of expert witnesses and familiarity with forensic science;

G.  Skill in the investigation, preparation, and presentation of mental health evidence;

H.  Skill in the investigation, preparation, and presentation of capital mitigating evidence; and

I.  Skill in the elements of capital trial advocacy, such as jury selection, cross-examination of witnesses, and opening and closing statements.


For approval of comparable capital defense training for initial capital certification, please call (804) 662-7249, ext 139.

 

 

 

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