By Ruth Brown, Idaho Reports
The Idaho State Public Defender’s Office has adopted a policy on minimum qualifications to be a capital qualified death penalty attorney, after a change in state law may increase the number of death penalty cases in Idaho.
Prior to the transition to the statewide system, the state followed the now-closed Public Defense Commission’s guidelines on what qualifications an attorney must have to defend a person facing the death penalty.
Because the PDC is closed, the new office was operating without an official policy until recently.
All defendants will be assigned a death penalty qualified counsel and co-counsel upon being charged with a capital crime, which in Idaho includes first-degree murder and aggravated lewd conduct with child younger than 12.
Lead counsel must have 10 or more years of criminal defense litigation, 10 or more felony jury trials tried to verdict, and been first or second counsel in one or more capital cases where a death notice was filed and tried to verdict, capital sentencing, or included significant pretrial litigation, among other requirements.
Co-counsel must have five or more years of experience in criminal defense litigation and five or more felony jury trials tried to verdict, among other criteria.
“We are currently accepting applications from SPD and external attorneys who want to achieve capital counsel certification,” said Patrick Orr, spokesperson for SPD.
Attorneys must also meet training requirements from nationally recognized programs every two years.
Capital trial teams will include attorneys who have no more than two capital cases at a time, a fact investigator, a mitigation specialist and a person qualified to screen for mental or psychological conditions, among other people.
Currently, Idaho only has 13 attorneys who are qualified to be lead counsel on a capital case under the PDC’s prior guidelines. Five are employees of the State Public Defender’s Office and eight are private attorneys. There are an additional 18 Idaho attorneys who qualify to be second chair on a capital case under the old guidelines. The SPD’s Office is working to improve those numbers to meet the needs of defendants, and will pay for biannual training for attorneys.
Last session, Idaho Legislators passed a bill to allow some cases of lewd conduct with child under age 12 with aggravating circumstances to be punishable by death, despite knowing the U.S. Supreme Court had ruled a similar law unconstitutional.
The bill did not allocate any additional money or resources for the Idaho State Public Defender’s Office.
That law went into effect on July 1. According to the Idaho Supreme Court, as of Wednesday, no one has been charged with aggravated lewd conduct with a child younger than 12 since the harsher penalties went into effect, so the SPD’s office does not have any capital cases for that specific crime.
Ruth Brown | Producer
Ruth Brown grew up in South Dakota and her first job out of college was covering the South Dakota Legislature. She’s since moved on to Idaho lawmakers. Brown spent 10 years working in print journalism, including newspapers such as the Idaho Statesman and Idaho Press, where she’s covered everything from the correctional system to health care issues. She joined Idaho Reports in 2021 and looks forward to telling stories about how state policy can impact the lives of regular Idahoans.