The opinion of the court was delivered by: Cote, District Judge.
Defendant Carlos Miranda ("Miranda") was indicted, on April
24, 2001, for the crimes of conspiracy to distribute cocaine and
murder in connection with a narcotics conspiracy, in violation
of 21 U.S.C. § 846 and 848(e)(1)(A). In light of the fact that
the maximum penalty for a conviction of 21 U.S.C. § 848(e)(1)(A)
is death, and pursuant to 18 U.S.C. § 3005 and
21 U.S.C. § 848(q)(4), defendant's counsel, Harold J. Pokel ("Pokel"), has
recommended an attorney for appointment as additional counsel to
assist in Miranda's defense. It is unclear whether this proposed
additional counsel qualifies as "learned" in the law applicable
to capital cases.
A defendant indicted*fn1 for a capital crime is statutorily
entitled, upon his or her request, to representation by two
court-appointed attorneys,*fn2 "of whom at least 1 shall be
learned in the law applicable to capital cases, and who shall
have free access to the accused at all reasonable hours."
18 U.S.C. § 3005 (emphasis supplied). It is also required by
statute that at least one attorney representing a defendant in a
capital case "have been admitted to practice in the court in
which the prosecution is to be tried for not less than five
years, and must have had not less than three years experience in
the actual trial of felony prosecutions in that court."
18 U.S.C. § 848(q)(5). Interpretations of the "learned in the law
applicable to capital cases" phrase suggest, however, that at
least in those cases in which the Government may actually intend
to seek the death penalty, the additional attorney appointed to
represent a defendant in a capital case should ordinarily have
significantly more experience than that described in 18 U.S.C.
The Spencer Committee — a subcommittee of the Defender
Services Committee of the Judicial Conference formed to evaluate
the expense of federal death penalty cases — published a report
("Spencer Report") describing "learned counsel" as counsel with
distinguished prior experience in the trial, appeal,
or post-conviction review of federal death penalty
cases, or distinguished prior experience in state
death penalty trials, appeals, or post-conviction
review that, in combination with cocounsel, will
assure high quality representation.
Spencer Report Recommendation 1(b) (emphasis in
original).*fn4 The commentary accompanying this
Recommendation emphasizes that
the preparation of a death penalty case for trial
requires knowledge, skills and abilities which are
absent in even the most seasoned felony trial
lawyers, if they lack capital experience. An attorney
knowledgeable about the nature of capital pretrial
litigation, the scope of a mitigation investigation
and the impact of the sentencing process on the guilt
phase is indispensable.
Id. David Bruck ("Bruck"), a criminal defense lawyer who
serves as Federal Death Penalty Resource Counsel,*fn5 has
described "learned in the law applicable to capital cases" to
more than a lawyer who has been to some seminars or a
lawyer that is generally conversant with the
law. . . . It means, according to the Spencer
Committee, a lawyer, and this is the Committee's
term, with "distinguished prior experience" in the
trial and appellate representation of death penalty
cases in federal or state court. And as a practical
matter, since there have been so few federal cases,
not only in the Second Circuit, but throughout the
nation that have actually gone to trial, it means
lawyers with distinguished prior experience in state
death penalty cases.
Now, the implication of that for most of the
Second Circuit it obvious. It means out of state
counsel. . . .
Eventually there will, of course, be a cadre of
experienced New York lawyers who have been around
the block in death penalty litigation, but that's
still a few years off. And the federal courts in
New York and in Vermont, and to some degree in
Connecticut, have appointed out-of-state counsel.
Not always from terribly far away. There is a
capital defense bar that is seasoned and available
in New Jersey, right across the river, and that's
where most of the "learned counsel" have been drawn
from in New York State courts. There also have been
appointments made from as far away as D.C. and
Baltimore and other areas where an experienced
death penalty bar can be found.
Judicial Conference, Second Judicial Circuit of the United
States, 196 F.R.D. 79 (1999), WL 196 FEDRDTP 79. According to
the Spencer Report and Bruck's interpretation of its terms,
counsel "learned in the law applicable to capital cases" must
have actually participated in death penalty trials, appeals, or
post-conviction review of death penalty cases in state or
The American Bar Association ("ABA") has published guidelines
for the appointment and performance of counsel in death penalty
cases which describes, in detail, the ...