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The California Judicial Council on Friday established minimum standards for appointed counsel in capital cases at the trial court level. Chief Justice Ronald George called the new standards a “significant development,” noting that similar standards are in place for appeals and habeas corpus petitions. But California Attorneys for Criminal Justice had a decidedly less rosy view. “What is the point here?” said Michael Ogul, co-chair of the group’s death penalty committee. “It’s got nothing to do with providing effective assistance of counsel.” Ogul, an Alameda County assistant public defender, said there’s no real teeth to the rules, which expressly state that they cannot form the basis of an appeal or habeas case. Ogul had submitted a letter on behalf of CACJ that also criticized a provision that allows counties to opt out of the minimum standards, provided they put their reasons on the record. The new standards require, among other things, that lead counsel: have at least 10 years’ experience in criminal law, have tried 10 serious or violent felonies, including two murder cases, and be experienced with expert, psychiatric and forensic evidence. Most of the discussion Friday dealt with the issue of whether the new rules could be interpreted as setting standards for effective assistance of counsel. Several council members, including Supreme Court Justice Marvin Baxter, suggested the language in the first paragraph of the new regulations be changed to ensure the rules cannot be used as the basis for those types of appeals. The regulations passed unanimously after that change was made. “So the test in appellate review will always be based on the performance of an attorney in a particular case,” George said after the meeting. According to the Judicial Council’s staff report, the new standards are designed to help avoid the delays and high expenses that accompany capital cases. George said he also expects the rules to reduce the number of appeals that are filed on the basis of ineffective assistance. On Friday, Ogul said he believes the new standards are intended only to allow California cases to qualify for fast-track review under the 1996 Anti-Terrorism and Effective Death Penalty Act. Joshua Weinstein, counsel to the Judicial Council’s Criminal Law Advisory Committee, which drafted the rules, said the committee did not ask him to look into whether the rules would satisfy the federal law, commonly called AEDPA. “We did not consider that at all,” Weinstein said. “I don’t even know what the qualifications are for fast track.” Although several large counties already have their own rules for capital appointments, now even the smallest county will have guidance in selecting attorneys for the sensitive cases, Weinstein said. The regulations are not mandatory for public defenders because the Judicial Council does not have purview over county PD offices. Still, the Judicial Council “suggests” public defenders use the qualifications, Weinstein said. The recent death penalty controversy in Illinois hung over much of Friday’s discussion. Weinstein said his committee would explore the formation of a statewide board to certify capital counsel, as has been suggested in Illinois. Asked his gut feeling on that, George said: “I don’t know, only that it merits study.” In other business, the council also approved minimum requirements for court commissioners and other subordinate judicial officers. In a 9-8 vote, the council approved a rule requiring that they have at least 10 years with the State Bar, or five years if the presiding judge finds good cause to lower the standard. All current judicial officers are grandfathered in and will not lose their seats.

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