United States District Court, E.D. Michigan, Southern Division
IN RE APPOINTMENT OF FEDERAL COMMUNITY DEFENDER - ALEX CASTRO
ORDER OF APPOINTMENT OF SECOND COUNSEL
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
Counsel
has been appointed to represent Alex Castro pre-indictment
under the Criminal Justice Act. He has exposure to being
charge with an offense for which an authorized punishment is
death.
Where a
defendant has been indicted in a death-eligible case, he or
she is entitled to the appointment of two attorneys, at least
one of whom is “learned in the law applicable to
capital cases.” 18 U.S.C. § 3005. The statute does
not mandate the appointment of learned counsel
pre-indictment, nor does the Sixth Amendment require that a
defendant be provided with counsel in pre-indictment plea
negotiations. See United States v. Moody,
206 F.3d 609 (6th Cir. 2000), citing United States v.
Gouveia, 467 U.S. 180 (1984)(establishing a bright line
rule that the Sixth Amendment right to counsel does not
attach until the initiation of adversary judicial
proceedings).
However,
while neither the statute nor the Constitution
requires the appointment of counsel before the
initiation of formal charges, the Court nevertheless retains
the discretion to appoint counsel pre-indictment in
appropriate cases, in the interests of justice. Indeed, this
district's decision to do so in numerous non-capital
cases has been uncontroversial, and CJA counsel has been
appointed in this case. Given the complexities of capital
cases, including the formal authorization process adopted by
the Department of Justice and the necessary presentation to
the Justice Department and to the local United States
Attorney of factors that would militate against a death
sentence, pre-indictment appointment of learned counsel to
assist in, for example, preliminary mitigation investigation,
would be of immense benefit to not only the defendant but to
the government and the Court. In a declaration submitted to
this Court, Kevin McNally, director of the Federal Death
Penalty Resource Counsel Project, frames the issue this way:
“Delay in appointment of learned counsel risks missing
this important opportunity to avoid the high cost of a
capital prosecution. since an early decision not to seek
death is the least costly way to resolve a potential capital
charge, a prompt preliminary mitigation investigation leading
to effective advocacy with the local U.S. Attorney and with
the Justice Department is critical both to a defendant's
interests and to sound fiscal management of public funds.
And, since the local prosecutor's recommendation nearly
always prevails with the Attorney general, the opportunity to
persuade the U.S. Attorney not to request capital
authorization is extremely important.”
Although
in Moody, the Sixth Circuit declined to
require the pre-indictment appointment of counsel
based on Supreme Court precedent, the Court felt constrained
to add that “logic, justice, and fundamental fairness
favor” the position that counsel should be appointed
before formal charges are brought. 206 F.3d at 615. And in
his concurring opinion in Moody, 206 F.3d at 618,
Judge Wiseman stated:
“The criminal justice system has and is changing so
that defendants now face critical stages of their
prosecutions prior to indictment. The Sixth Amendment's
underlying purpose is to protect defendants in critical
stages of their prosecution. Thus, the Sixth Amendment should
guarantee the right to counsel during preindictment plea
negotiations. Precedent, however, prevents me from endorsing
this position which logic demands.”
If, as
the Sixth Circuit has thus recognized, the pre-indictment
appointment of counsel in a non-capital case serves important
interests, then similar appointment of learned counsel in a
potential capital case is all the more important. And again,
while the Sixth Amendment, the Criminal Justice Act, and 18
U.S.C. § 3005 establish when and when not counsel
must be appointed, nothing in those provisions, or
in the case law interpreting those provisions, circumscribes
or restrains the Court's discretion to appoint counsel in
an appropriate case in the interests of justice. I will
therefore appoint second, learned counsel to represent Mr.
Castro preindictment.
Attorney
Nathan Chambers has been represented to this Court by the
Federal Defender Office of Detroit to possess the learning
and experience required by 18 U.S.C. § 3005.
Accordingly, IT IS ORDERED that attorney Nathan Chambers,
30316th Street, Suite 200, Denver, CO, 80202,
telephone number (303) 825-2222, be appointed to represent
Alex Castro in this case at the prevailing hourly rate.
See Vol. 7, Chapter 6, Guide to Judiciary Policies
and Procedures, § 630.10.10.
Attorney
Chambers is not yet a member of the bar in the Eastern
District of Michigan, and is directed to complete the
attorney admission process and file a formal appearance as
soon as practicable. Information regarding attorney admission
is available on this court's website:
www.mied.uscourts.gov. Additional questions ...