Appointment of Counsel
If a case is proceeding non-capitally, does the Office of Capital Defender still appoint counsel?
Yes, as long as the defendant is indigent, the charge is first-degree murder or undesignated murder, and s/he was 18 or older at the time of the offense. See IDS Rule 2A.2.
If the defendant is initially charged with a lesser offense, but is later indicted on first-degree murder or undesignated murder, who appoints counsel on the upgraded charge?
As long as the defendant was 18 or older at the time of the offense, the Office of Capital Defender appoints counsel from the capital roster as soon as notice is received of the new charge, even if the court has previously appointed counsel.
If counsel in a potentially-capital case withdraws, who appoints counsel?
The Office of Capital Defender appoints new counsel once an order allowing the original counsel to withdraw is provided.
If counsel is initially retained, but the defendant is later determined to be indigent, can that attorney be appointed by the Office of Capital Defender?
No, the Office of Capital Defender may not make a subsequent appointment of retained counsel. See IDS Rule 2A.2(e).
If the Office of Capital Defender appoints a public defender as counsel for the defendant and that attorney leaves the public defender’s office or the case otherwise needs to be reassigned, who appoints the new attorney?
The Office of Capital Defender, not the Public Defender, appoints new counsel even if the case will remain in the public defender’s office.
If a case is declared capital, how is the appointment of co-counsel made?
Initial counsel must submit the Outcome of Rule 24 Hearing Form (IDS-026) to the Office of Capital Defender. The Capital Defender will then consult with initial counsel prior to the appointment of second counsel pursuant to IDS Rule 2A.2(d).
Can second counsel be appointed prior to a Rule 24 hearing?
Yes, but only upon request by counsel and where the IDS Director finds good cause justifying the earlier appointment of second counsel. See IDS Rule 2A.2(d).
Who authorizes funds for experts?
The Office of Capital Defender authorizes funds for experts in all cases in which they have appointed counsel and in potentially capital cases in which the court has declared the client of a retained attorney indigent for purposes of retaining experts.
How do I request expert funds?
Submit Form IDS-028, Ex Parte Request for Expert Funding, to the Office of Capital Defender.
What if the defendant retained counsel but cannot afford experts?
If there has been a court Order finding the defendant indigent for purposes of expert assistance, submit the Order along with Form IDS-028 to request experts.
What if the case is subsequently declared non-capital or indicted on a lesser offense?
The Office of Capital Defender still authorizes expert funds in these cases.
What information should be included on the ex parte request form?
Counsel is required to make at least as specific an application to retain experts as would be required by a trial judge applying G.S. 7A-450(a) and Ake v. Oklahoma and its progeny. A summary of the case and the specific need for the type of expert requested must be sufficiently detailed in the request.
What if I need help finding experts?
Consult the Office of Capital Defender, Forensic Resource Counsel, the forensic expert database, or the Mitigation Specialist Coordinator.
What things should I consider when retaining an expert?
Please consider the specific needs of the case, the location of experts and witnesses, and the experts’ willingness to work at the standard IDS/AOC hourly rates.
What do I need to do to request an out-of-state expert?
Counsel must first consult with IDS’ Forensic Resource Counsel, and the ex parte request must include a detailed explanation as to why a North Carolina expert cannot be used.
What are the licensing requirements for private investigators?
Private investigators must be in compliance with Chapter 74C of the General Statutes. They must be licensed with the following two exceptions: 1) An investigator who is a direct employee of an attorney does not have to be licensed. Direct employment means either as a W-2 or 1099 employee. Receipt of a 1099 from IDS does not constitute being an employee of an attorney. An unlicensed investigator who is working as an employee of an attorney may only work on that attorney’s cases. 2) An investigator trainee who is attempting to gain the requisite hours to become a licensed private investigator must work under the supervision of a licensed private investigator. An attorney cannot provide the statutorily mandated supervision to a private investigator trainee.
What are the requirements for being a mitigation specialist?
Mitigation specialists must meet certain educational and experience criteria in order to be retained on capital cases. The Office of Capital Defender maintains rosters of mitigation specialists who have met the required standards. The standards are available on the IDS website under the “Information for Experts” link. For assistance in selecting a mitigation specialist in your case, consult the Trial Resource Unit Mitigation Specialist Coordinator.
How much money should be requested initially?
Please request only as much funding as is needed for initial work on the case.
Can the expert start work prior to funds being authorized?
No. In order for experts to be paid their funding must be preauthorized before the start of any work.
In exceptional cases, can the expert work without preauthorization?
No. All funding must be preauthorized. Absent truly exceptional circumstances, IDS will not compensate experts for amounts in excess of the prior authorization.
Can the investigator and/or mitigation specialist attend hearings or the trial?
These experts may only attend the portions of any hearings or the trial that pertain to their expert work and where their attendance is absolutely necessary. These experts may not attend an entire trial without advance written permission from the Office of Capital Defender.
Should counsel review expert fee applications?
Yes, in order to verify the work and expenses that are the basis of the fee.
Are there any expert expenses that do not require preauthorization?
Paralegal assistance up to $525 (35 hours at $15 per hour) and student assistance up to $500 (50 hours at up to $10 per hour) do not have to be preauthorized. These amounts can only be claimed as an “other expense” on the attorney’s final fee application.
Exceptional Case Policy
When should counsel seek an “exceptional” case designation?
Under IDS’ “Exceptional Capital Cases” policy, an attorney cannot receive more than $10,000 in funds for pre-trial fact investigation or mitigation investigation unless the case is designated “exceptional.” Similarly, an attorney cannot be paid more than $35,000 in fees and expenses prior to trial unless the case has been designated “exceptional.” Counsel should submit an application for exceptional designation as soon as counsel believes that the case meets or will meet requirements for that designation and that the case cannot be adequately prepared without exceeding these limits. In no event should counsel wait beyond the time that investigation or mitigation funding has reached $7,500 and/or the attorney fees have reached $30,000.
Where is the application for “Exceptional Capital Cases?”
Form IDS-024 is located on the IDS website under “Information for Counsel” then “Forms and Applications” and then “Capital Trial Forms.”
Can cases that are proceeding non-capitally be designated as “exceptional?”
Yes, based on the same criteria as cases that are proceeding capitally.
Once a case has been designated as “exceptional,” is pre-authorization from IDS required for expert funds?
Yes. Counsel still must submit all expert funding requests to the Office of Capital Defender on Form IDS-028. These requests will be reviewed by the IDS Director. All expert work still must be pre-authorized and counsel should not assume (or inform an expert) that funds will be authorized simply because the case has been designated “exceptional.”
Are there additional requirements of counsel following an “exceptional” designation?
Yes. Counsel will be required to schedule a telephone consult with the Office of Capital Defender within 60 days and must submit fee applications to IDS on at least a quarterly basis. The quarterly fee application requirement applies even if the case is designated exceptional only for investigation and/or mitigation spending.
Billing and Expense Policies and Procedures
Where can counsel find IDS’ billing policies and procedures and the required forms?
On the IDS website (www.ncids.org) under “Information for Counsel.”
Which form should counsel in potentially capital cases use to submit a payment request?
All attorney fees and expenses should be submitted to IDS on Form AOC-CR-425, Capital Case Fee Application, even when the case is proceeding non-capitally. In all cases with a warrant date on or after January 1, 2011, counsel must also complete and submit Form IDS-037, Case Status Fee Application Addendum.
Where does counsel submit the fee application for payment?
To IDS and not the Office of Capital Defender. Please see the Instructions on Form AOC-CR-425 for the correct mailing information. You may also fax or email the fee application to IDS. (Please note that fee applications must include time sheets with sufficiently detailed information about the work completed by counsel and should avoid generic descriptions such as “reviewed discovery” or “trial prep.”)
Can counsel pay out-of-pocket for some case-related expenses and seek reimbursement from IDS?
Yes. Private assigned counsel in potentially capital cases may pay for many case-related expenses and seek reimbursement (with a receipt or documentation) from IDS without pre-authorization from the Office of Capital Defender. Please refer to the “Private Attorney Fee and Expense Policies for Capital Cases and Appeals” for additional information. This document can be found on the IDS website under “Information for Counsel” and then “Policies and Procedures.” Counsel should never pay an expert, interpreter, translator, or court reporter directly.
Can counsel submit payment directly to an expert?
No, unless the expert is a paralegal (up to 35 hours) or student (up to 50 hours), in which case counsel may pay the expert and seek reimbursement on their final fee application.
How does a public defender appointed in a potentially capitally case seek payment for case-related expenses?
Public defenders and capital defenders should refer to the “Public Defender Miscellaneous (Non-Expert) Expenses” policy on the IDS website. It is located under “Information for Counsel,” then “Policies and Procedures,” and then “Public Defender Office Policies.” If the expense is over $200, prior authorization from the Office of Capital Defender is required. The bill and authorization, if needed, should be submitted to IDS for payment.
How many copies of digital discovery can counsel print?
Counsel may print any documents that will be entered into evidence or used in examining witnesses, or when a hard copy is otherwise needed to prepare the case. However, absent extraordinary circumstances, IDS will not reimburse counsel for printing one or more copies of the entire discovery package.