State Codes and Statutes
Statutes > Utah > Title-78b > Chapter-09 > 78b-9-20278B-9-202. Appointment and payment of counsel in death penalty cases.
(1) A person who has been sentenced to death and whose conviction and sentence hasbeen affirmed on appeal shall be advised in open court, on the record, in a hearing scheduled noless than 30 days prior to the signing of the death warrant, of the provisions of this chapterallowing challenges to the conviction and death sentence and the appointment of counsel forindigent petitioners.
(2) (a) If a petitioner requests the court to appoint counsel, the court shall determinewhether the petitioner is indigent and make findings on the record regarding the petitioner'sindigency. If the court finds that the petitioner is indigent, it shall, subject to the provisions ofSubsection (5), promptly appoint counsel who is qualified to represent petitioners inpost-conviction death penalty cases as required by Rule 8 of the Utah Rules of CriminalProcedure. Counsel who represented the petitioner at trial or on the direct appeal may not beappointed to represent the petitioner under this section.
(b) A petitioner who wishes to reject the offer of counsel shall be advised on the recordby the court of the consequences of the rejection before the court may accept the rejection.
(3) Attorney fees and litigation expenses incurred in providing the representationprovided for in this section and that the court has determined are reasonable shall be paid fromstate funds by the Division of Finance according to rules established pursuant to Title 63G,Chapter 3, Utah Administrative Rulemaking Act.
(a) In determining whether the requested funds are reasonable, the court should consider:
(i) the extent to which the petitioner requests funds to investigate and develop evidenceand legal arguments that duplicate the evidence presented and arguments raised in the criminalproceeding; and
(ii) whether the petitioner has established that the requested funds are necessary todevelop evidence and legal arguments that are reasonably likely to support post-conviction relief.
(b) The court may authorize payment of attorney fees at a rate of $125 per hour up to amaximum of $60,000. The court may exceed the maximum only upon a showing of good causeas established in Subsections (3)(e) and (f).
(c) The court may authorize litigation expenses up to a maximum of $20,000. The courtmay exceed the maximum only upon a showing of good cause as established in Subsections(3)(e) and (f).
(d) The court may authorize the petitioner to apply ex parte for the funds permitted inSubsections (3)(b) and (c) upon a motion to proceed ex parte and if the petitioner establishes theneed for confidentiality. The motion to proceed ex parte must be served on counsel representingthe state, and the court may not grant the motion without giving the state an opportunity torespond.
(e) In determining whether good cause exists to exceed the maximum sums establishedin Subsections (3)(b) and (c), the court shall consider:
(i) the extent to which the work done to date and the further work identified by thepetitioner duplicates work and investigation performed during the criminal case under review;and
(ii) whether the petitioner has established that the work done to date and the further workidentified is reasonably likely to develop evidence or legal arguments that will supportpost-conviction relief.
(f) The court may permit payment in excess of the maximum amounts established in
Subsections (3)(b) and (c) only on the petitioner's motion, provided that:
(i) if the court has granted a motion to file ex parte applications under Subsection (3)(d),the petitioner shall serve the motion to exceed the maximum amounts on an assistant attorneygeneral employed in a division other than the one in which the attorney is employed whorepresents the state in the post-conviction case; if the court has not granted a motion to file exparte applications, then the petitioner must serve the attorney representing the state in thepost-conviction matter with the motion to exceed the maximum funds;
(ii) if the motion proceeds under Subsection (3)(f)(i), the designated assistant attorneygeneral may not disclose to the attorney representing the state in the post-conviction matter anymaterial the petitioner provides in support of the motion except upon a determination by thecourt that the material is not protected by or that the petitioner has waived the attorney clientprivilege or work product doctrine; and
(iii) the court gives the state an opportunity to respond to the request for funds in excessof the maximum amounts provided in Subsections (3)(b) and (c).
(4) Nothing in this chapter shall be construed as creating the right to the effectiveassistance of post-conviction counsel, and relief may not be granted on any claim thatpost-conviction counsel was ineffective.
(5) If within 60 days of the request for counsel the court cannot find counsel willing toaccept the appointment, the court shall notify the petitioner and the state's counsel in writing. Inthat event, the petitioner may elect to proceed pro se by serving written notice of that election onthe court and state's counsel within 30 days of the court's notice that no counsel could be found. If within 30 days of its notice to the petitioner the court receives no notice that the petitionerelects to proceed pro se, the court shall dismiss any pending post-conviction actions and vacateany execution stays, and the state may initiate proceedings under Section 77-19-9 to issue anexecution warrant.
Renumbered and Amended by Chapter 3, 2008 General Session
Amended by Chapter 288, 2008 General Session
