INDIANA CRIMINAL PROCEDURE RULE 24
CAPITAL CASES (As of April 1, 2008)
(A) Supreme Court Cause Number. Whenever a prosecuting attorney seeks the death sentence
by filing a request pursuant to Ind.Code § 35-50-2-9, the prosecuting attorney shall file that request with the trial court
and with the Court Administrator, Indiana Supreme Court, 315 State House, Indianapolis, Indiana 46204.
Upon receipt of same, the Court Administrator shall open a cause number in the Supreme Court and notify counsel.
(B) Appointment of Qualified Trial Counsel. Upon a finding of indigence, it shall be the duty of the judge
presiding in a capital case to enter a written order specifically naming two (2) qualified attorneys to represent an
individual in a trial proceeding where a death sentence is sought. The provisions for the appointment of counsel
set forth in this section do not apply in cases wherein counsel is employed at the expense of the defendant.
(1) Lead Counsel; Qualifications. One (1) of the attorneys appointed by the court shall be designated
as lead counsel. To be eligible to serve as lead counsel, an attorney shall:
(a) be an experienced and active trial practitioner with at least five (5) years of criminal litigation experience;
(b) have prior experience as lead or co-counsel in no fewer than five (5) felony jury trials which were tried to
completion;
(c) have prior experience as lead or co-counsel in at least one (1) case in which the death penalty was sought;
and
(d) have completed within two (2) years prior to appointment at least twelve (12) hours of training in the defense of capital cases in a course approved by the Indiana
Public Defender Commission.
(2) Co-Counsel, Qualifications. The remaining attorney shall be designated as co-counsel.
To be eligible to serve as co-counsel, an attorney shall:
(a) be an experienced and active trial practitioner with at least three (3) years of criminal litigation experience;
(b) have prior experience as lead or co-counsel in no fewer than three (3) felony jury trials which were tried to
completion; and
(c) have completed within two (2) years prior to appointment at least twelve (12) hours of training in
the defense of capital cases in a course approved by the Indiana Public Defender Commission.
(3) Workload of Appointed and Salaried Capital Counsel. In the appointment of counsel, the nature
and volume of the workload of appointed counsel must be considered to assure that counsel can direct sufficient
attention to the defense of a capital case.
(a) Attorneys accepting appointments pursuant to this rule shall provide each client with quality representation
in accordance with constitutional and professional standards. Appointed counsel shall not accept workloads which,
by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of
professional obligations.
(b) A judge shall not make an appointment of counsel in a capital case without assessing the impact
of the appointment on the attorney's workload.
(c) Salaried or contractual public defenders may be appointed as trial counsel in a capital case, if:
(i) the public defender's caseload will not exceed twenty (20) open felony cases while the capital case is
pending in the trial court;
(ii) no new cases will be assigned to the public defender within thirty (30) days of the trial setting in the capital
case;
(iii) none of the public defender's cases will be set for trial within fifteen (15) days of the trial setting in the
capital case; and
(iv) compensation is provided as specified in paragraph (C).
(d) The workload of full-time salaried capital public defenders will be limited consistent with subsection
(B)(3)(a) of this rule. The head of the local public defender agency or office, or in the event there is no agency or office,
the trial judge, shall not make an appointment of a full-time capital public defender in a capital case without
assessing the impact of the appointment on the attorney's workload. In assessing an attorney's workload, the head
of the local public defender agency or office, or in the event there is no agency or office, the trial judge shall be guided
by Standard J of the Standards for Indigent Defense Services in Non-Capital cases as adopted by the Indiana Public
Defender Commission, effective January 1, 1995, and shall treat each capital case as the equivalent of forty (40)
felonies under the Commission's "all felonies" category. Appointment of counsel shall also be subject to subsections
(B)(3)(c)(ii), (iii) and (iv) of this rule.
(C) Compensation of Appointed Trial Counsel. All hourly rate trial defense counsel appointed
in a capital case shall be compensated under subsection (1) of this provision upon presentment and approval
of a claim for services detailing the date, activity, and time duration for which compensation is sought. Hourly
rate counsel shall submit periodic billings not less than once every thirty (30) days after the date of appointment
by the trial court. All salaried capital public defenders compensated under subsection (4) of this provision shall
present a monthly report detailing the date, activity, and time duration of services rendered after the date of
appointment. Periodic payment during the course of counsel's representation shall be made.
(1) Hours and Hourly Rate. Defense counsel appointed at an hourly rate in capital cases filed or remanded
after appeal on or after January 1, 2001, shall be compensated for time and services performed at the hourly rate
of ninety dollars ($90.00) only for that time and those services determined by the trial judge to be reasonable
and necessary for the defense of the defendant. The trial judge's determination shall be made within thirty (30)
days after submission of billings by counsel. Counsel may seek advance authorization from the trial judge,
ex parte, for specific activities or expenditures of counsel's time.
The hourly rate set forth in this rule shall be subject to review and adjustment on a biennial basis by the
Executive Director of the Division of State Court Administration. Beginning July 1, 2002, and July 1st of each even
year thereafter, the Executive Director shall announce the hourly rate for defense counsel appointed in capital
cases filed or remanded after appeal on or after January 1, of the years following the announcement. The
hourly rate will be calculated using the Gross Domestic Product Implicit Price Deflator, as announced by the
United States Department of Commerce in its May report, for the last two years ending December 31st preceding
the announcement. The calculation by the Executive Director shall be rounded to the next closest whole dollar.
In the event the appointing judge determines that the rate of compensation is not representative of practice
in the community, the appointing judge may request the Executive Director of the Division of State Court
Administration to authorize payment of a different hourly rate of compensation in a specific case.
(2) Support Services and Incidental Expenses. Counsel appointed at an hourly rate in a capital case
shall be provided, upon an ex parte showing to the trial court of reasonableness and necessity, with adequate funds
for investigative, expert, and other services necessary to prepare and present an adequate defense at every stage
of the proceeding, including the sentencing phase. In addition to the hourly rate provided in this rule, all counsel
shall be reimbursed for reasonable and necessary incidental expenses approved by the trial judge. Counsel may
seek advance authorization from the trial judge, ex parte, for specific incidental expenses.
Full-time salaried capital public defenders shall be provided with adequate funds for investigative, expert,
and other services necessary to prepare and present an adequate defense at every stage of the proceeding,
including the sentencing phase, as determined by the head of the local public defender agency or office, or in the
event there is no agency or office, by the trial judge as set forth above.
(3) Contract Employees. In the event counsel is generally employed by the court of appointment to perform
other defense services, the rate of compensation set for such other defense services may be adjusted during the
pendency of the death penalty case to reflect the limitations of case assignment established by this rule.
(4) Salaried Capital Public Defenders. In those counties having adopted a Comprehensive Plan as set forth
in I.C. 33-9-15 et. seq., which has been approved by the Indiana Public Defender Commission, and who are in
compliance with Commission standards authorized by I.C. 33-9-13-3(2), a full-time salaried capital public defender
meeting the requirements of this rule may be assigned in a capital case by the head of the local public defender
agency or office, or in the event there is no agency or office, by the trial judge. Salaried capital public defenders
may be designated as either lead counsel or co-counsel. Salaried capital lead counsel and co-counsel must be
paid salary and benefits equivalent to the average of the salary and benefits paid to lead prosecuting attorneys
and prosecuting attorneys serving as co-counsel, respectively, assigned to capital cases in the county.
Each year, by July 1, those counties wishing to utilize full-time salaried capital public defenders for capital
cases shall submit to the Executive Director of the Division of State Court Administration the salary and benefits
proposed to be paid the capital public defenders for the upcoming year along with the salaries and benefits paid
to lead prosecutors and prosecutors serving as co-counsel assigned capital cases in the county in the thirty-six
(36) months prior to July 1, or a certification that no such prosecutor assignments were made. The Executive
Director shall verify and confirm to the Indiana Public Defender Commission and the requesting county that the
proposed salary and benefits are in compliance with this rule. In the event a county determines that the rate of
compensation set forth herein is not representative of practice in the community, the county may request the
Executive Director to authorize a different salary for a specific year.
(D) Transcription of Capital Cases. The trial or post-conviction court in which a capital case is
pending shall provide for stenographic reporting with computer-aided transcription of any and all oral testimony,
argument, or other matters required to be reported under Criminal Rule 5.
(E) Imposition of Sentence. Whenever a court sentences a defendant to death, the court shall
pronounce said sentence and issue its order to the Department of Correction for the defendant to be held in an
appropriate facility. A copy of the order of conviction, order sentencing the defendant to death, and order committing
the death-sentence inmate to the Department of Correction shall be forwarded by the court imposing sentence to
the Indiana Supreme Court Administrator's Office. When a trial court imposes a death sentence, it shall, on the
same day sentence is imposed, order the court reporter and clerk to begin immediate preparation of the record
on appeal.
(F) Setting of Initial Execution Date - Notice. In the sentencing order, the trial court shall set an
execution date one (1) year from the date of judgment of conviction. Copies of said order shall be sent by the
trial court to:
(i) the prosecuting attorney of record;
(ii) the defendant;
(iii) the defendant's attorney of record;
(iv) the appellate counsel, if such has been appointed;
(v) the Attorney General;
(vi) the Commissioner of the Department of Correction;
(vii) the Warden of the institution where the defendant is confined; and
(viii) the State Public Defender.
Contemporaneously with the service of the order setting the date of execution to the parties listed in this section,
the trial court shall forward to the Supreme Court Administrator's Office a copy of the order, with a certification
by the clerk of the court that the parties listed in this section were served a copy of the order setting the date of
execution.
(G) Stay of Execution Date. This section governs the stay of execution for defendants sentenced
to death.
(1) Stay of Execution--General. The Supreme Court shall have exclusive jurisdiction to stay the execution
of a death sentence. In the event the Supreme Court stays the execution of a death sentence, the Supreme Court
shall order the new execution date when the stay is lifted. A copy of an order to stay an execution or set a new date
for execution will be sent to the persons set forth in section (F) of this rule.
(2) Stay of Initial Execution Date. Upon petition or on its own motion, the Supreme Court shall stay the initial
execution date set by the trial court. On the thirtieth (30th) day following completion of rehearing, the Supreme Court
shall enter an order setting an execution date, unless counsel has appeared and requested a stay in accordance
with section (H) of this rule. A copy of any order entered under this provision will be sent to the persons set forth in
section (F) of this rule.
(H) Post-Conviction Relief - Stay - Duty of Counsel. Within thirty (30) days following completion of
rehearing, private counsel retained by the inmate or the State Public Defender (by deputy or by special assistant in
the event of a conflict of interest) shall enter an appearance in the trial court, advise the trial court of the intent to
petition for post-conviction relief, and request the Supreme Court to extend the stay of execution of the death
sentence. A copy of said appearance and notice of intent to file a petition for post- conviction relief shall be served
by counsel on the Supreme Court Administrator. When the request to extend the stay is received, the Supreme
Court will direct the trial court to submit a case management schedule consistent with Ind.Code § 35-50-2-9(i) for
approval. On the thirtieth (30th) day following completion of any appellate review of the decision in the post-conviction
proceeding, the Supreme Court shall enter an order setting the execution date. It shall be the duty of counsel of
record to provide notice to the Supreme Court Administrator of any action filed with or decision rendered by a
federal court that relate to defendants sentenced to death by a court in Indiana.
(I) Initiation of Appeal. When a trial court imposes a death sentence, it shall on the same day
sentence is imposed order the court reporter and clerk to begin immediate preparation of the record of proceedings.
(J) Appointment of Appellate Counsel. Upon a finding of indigence, the trial court imposing a
sentence of death shall immediately enter a written order specifically naming counsel under this provision for
appeal. If qualified to serve as appellate counsel under this rule, trial counsel shall be appointed as sole or
co-counsel for appeal.
(1) Qualifications of Appellate Counsel. An attorney appointed to serve as appellate counsel for an
individual sentenced to die, shall:
(a) be an experienced and active trial or appellate practitioner with at least three (3) years experience in
criminal litigation;
(b) have prior experience within the last five (5) years as appellate counsel in no fewer than three (3) felony
convictions in federal or state court; and
(c) have completed within two (2) years prior to appointment at least twelve (12) hours of training in the
defense of capital cases in a course approved by the Indiana Public Defender Commission.
(2) Workload of Appointed Appellate Counsel. In the appointment of Appellate Counsel, the judge shall
assess the nature and volume of the workload of appointed appellate counsel to assure that counsel can direct
sufficient attention to the appeal of the capital case. In the event the appointed appellate counsel is under a
contract to perform other defense or appellate services for the court of appointment, no new cases for appeal
shall be assigned to such counsel until the Appellant's Brief in the death penalty case is filed.
(K) Compensation of Appellate Counsel. Appellate counsel appointed to represent an individual
sentenced to die shall be compensated under this provision upon presentment and approval of a claim for services
detailing the date, activity, and time duration for which compensation is sought. Counsel shall submit periodic
billings not less than once every thirty (30) days after the date of appointment. Attorneys employed by appellate
counsel for consultation shall be compensated at the same rate as appellate counsel.
(1) Hours and Hourly Rate. Appellate defense counsel appointed on or after January 1, 2001, to represent
an individual sentenced to die shall be compensated for time and services performed at the hourly rate of ninety
dollars only for that time and those services determined by the trial judge to be reasonable and necessary for the
defense of the defendant. The trial judge's determination shall be made within thirty (30) days after submission of
billings by counsel. Counsel may seek advance authorization from the trial judge, ex parte, for specific activities or
expenditures of counsel's time. The hourly rate set forth above shall be subject to review and adjustment as set
forth in section (C)(1) of this rule. In the event the appointing judge determines that this rate of compensation is not
representative of practice in the community, the appointing judge may request the Executive Director of the Division
of State Court Administration to authorize payment of a different hourly rate of compensation in a specific case.
(2) Contract Employees. In the event appointed appellate counsel is generally employed by the court of
appointment to perform other defense services, the rate of compensation set for such other defense services
may be adjusted during the pendency of the death penalty appeal to reflect the limitations of case assignment
established by this rule.
(3) Salaried Capital Public Defenders. In the event appointed appellate counsel is a salaried capital public
defender, as described in section (C)(4) of this rule, the county must comply with, and counsel shall be
compensated according to, the requirements of section (C)(4).
(4) Incidental Expenses. In addition to the hourly rate or salary provided in this rule, appellate counsel
shall be reimbursed for reasonable incidental expenses as approved by the court of appointment.
(L) Briefing on Appeal. In capital cases, counsel may place the verbatim judgment of the trial court and
verbatim instructions and the verbatim objections thereto required by Appellate Rule 50B in a separately bound
attachment. Such attachment shall not count against the word limit of the brief.
[Adopted Nov. 30, 1989, effective Jan. 1, 1990; amended Oct. 21, 1991, effective Jan. 1, 1992; amended
Jan. 22, 1993, effective Feb. 1, 1993; amended effective March 28, 1996; amended Feb. 4, 2000,
effective Jan. 1, 2001; amended Dec. 22, 2000, effective Jan. 1, 2001; amended effective March 5, 2001; amended December 21, 2001, effective April 1, 2002.]
Amended 12-21-01 (effective 04-01-02)
- Makes minor changes in wording to mirror new wording of Indiana Appellate Rules.
Amended 03-05-01 (effective 03-05-01)
- Rewrote subsection (K), increasing the hourly rate for compensation to appellate defense counsel from $70 to $90, and
authorizing ex parte requests by appellate defense counsel for authorization of specific activities or expenditures of counsel’s
time.
Amended 12-22-00 (effective 01-01-01)
- Added subsection (B) (3) (d), requiring the local PD to take into account caseload when assigning a capital case, with
guidance from Standards for Indigent Defense apopted by Public Defender Commission.
- Added subsection (C) (4), requiring that salaried public defenders who are assigned capital cases for trial must be paid salary
and benefits equal to prosecutors.
- Rewrote subsection (C) (1), increasing the hourly rate for compensation to TRIAL defense counsel from $70 to $90, and
authorizing ex parte requests by TRIAL defense counsel for authorization of specific activities or expenditures of counsel’s time.
Amended 02-04-00 (effective (01-01-01)
- In subsection (A), substituted "315" for "312."
- In subsection (E), added the final sentence requiring the trial court to order immediate preparation of the record following
sentencing.
- In subsection (L), substituted "shall" for "may", "50B" for "8(A)", and "attachment" for "appendix" relating to appellate briefs.
Amended 03-28-96 (effective 03-28-96)
- Rewrote subsections (E), (F), & (G), requiring that an execution date be set within one year from judgment of conviction, and
giving Indiana Supreme Court exclusive jurisdiction to issue stay.
- Rewrote subsection (H), requiring PCR counsel to enter appearance within 30 days of completion of direct appeal and to file
notice of intent to file Petition; and upon completion of PCR appeal to notify Supreme Court Administrator of any federal
court action.
Amended 01-22-93 (effective 02-01-93)
- Rewrote subsection (G), to require that no execution date be set until final decision of Indiana Supreme Court.
Amended 10-21-91 ((effective 01-01-92)
- Added subsections (B), (C), and (K), and rewrote subsection (J).
- Added subsection (B) (1) & (2), requiring that two attorneys be appointed for defendant at trial, with lead counsel having at
least 5 years in criminal litigation, 5 felony jury trials, 1 prior death penalty case, and 12 hours of training; co-counsel to have
3 years in criminal litigation, 3 felony jury trials, and 12 hours of training.
- Added subsection (B) (3), limiting the caseload of appointed trial attorney public defender to 20 open felony cases, with no
new cases assigned within 30 days of trial, and no other trial settings within 15 days of trial.
- Added subsection (C), setting the hourly rate of $70 for appointed trial counsel, with no limits; requiring adequate funds for
investigators and experts, with no limits.
- Added subsection (K), setting similar compensation for appellate counsel.
- Rewrote subsection (J), setting minimum qualifications for appointed appellate counsel, requiring 3 years in criminal litigation,
3 cases as appellate counsel on felony conviction, and 12 hours of training.
Adopted 11-30-89 (effective 01-01-90)
- Prosecutor required to notify Supreme Court Administrator of death penalty filing.
- Trial or PCR Court required to use computer-aided transcription.
- Specific duties given to trial court and parties on the setting of execution dates.
- Trial defense counsel must be appointed sole or co-counsel for appeal.
