2017 Arkansas Code
Title 16 - Practice, Procedure, and Courts
Subtitle 6 - Criminal Procedure Generally
Chapter 91 - Appeal and Post-Conviction
Subchapter 2 - Arkansas Effective Death Penalty Act of 1997
§ 16-91-202. Capital cases

Universal Citation: AR Code § 16-91-202 (2017)
  • (a) (1) (A) (i) If a capital conviction and sentence are affirmed on direct appeal, the circuit court in which the conviction was obtained shall, within two (2) weeks after the affirmance, conduct a hearing and enter a written order appointing counsel to represent the petitioner in a post-conviction proceeding upon issuance of the mandate by the appellate court, should the petitioner desire to pursue such a post-conviction proceeding.
    • (ii) Counsel's appointment shall remain effective through any appeal of the post-conviction proceeding in state court.
      • (B) Counsel shall be appointed only after a finding by the circuit court that the petitioner is indigent and that he or she either accepts the appointment of counsel or is unable to make a competent decision whether to accept or reject the appointment of counsel.
      • (C) The circuit court may decline to appoint counsel for the petitioner only upon a written finding that the petitioner rejects the appointment of counsel and understands the legal consequences of that decision or upon a finding that the petitioner is not indigent.
        • (2)
          • (A) The circuit court may not appoint an attorney as counsel under this subsection if the attorney represented the petitioner at trial or on direct appeal of the conviction under attack unless the petitioner and the attorney request appointment on the record.
          • (B) If counsel is the same attorney who represented the petitioner at trial or on direct appeal, the circuit court shall appoint a second counsel to assist in the preparation of the petition for post-conviction relief.
          • (C) If the petitioner elects to proceed pro se, the waiver of the assistance of counsel shall be made in open court on the record.
  • (b) (1) (A) Upon the filing of a post-conviction petition, the clerk of the circuit court in which the petition is filed shall immediately forward a copy of the petition to the prosecuting attorney of the county in which the petition was filed, the Attorney General, and the Executive Director of the Arkansas Public Defender Commission.
    • (B)
      • (i) The filing of the petition does not automatically stay any sentence of death.
      • (ii) Upon the entry of an order pursuant to this subsection, a stay of execution shall be granted upon application to the circuit court wherein the motion for appointment of counsel was filed.
        • (2) The stay granted pursuant to this subsection shall automatically expire if:
          • (A) The petitioner fails to file a timely petition for post-conviction relief; or
          • (B) The petitioner is denied relief in his or her post-conviction proceeding in circuit court in the manner set forth in subsection (h) of this section.
  • (c)
    • (1) The following standards are the exclusive criteria which counsel must satisfy in order to be appointed under subsection (a) of this section.
    • (2) At least one (1) of the attorneys appointed to represent the applicant:
      • (A) Shall have:
        • (i) Previously represented a death-sentenced inmate in state or federal post-conviction relief proceedings within the five (5) years immediately preceding the appointment for which he or she is under consideration; or
        • (ii) Acted, within the five (5) years immediately preceding the appointment for which he or she is under consideration, as defense counsel in no fewer than three (3) state or federal post-conviction relief proceedings arising from felony convictions, at least two (2) of which involved violent crimes, including one (1) murder case;
      • (B) Shall have, within the five (5) years immediately preceding the appointment for which he or she is under consideration, conducted at least two (2) evidentiary hearings in state or federal post-conviction relief proceedings, which may include any proceeding which satisfies subdivision (c)(2)(A)(i) of this section or subdivision (c)(2)(A)(ii) of this section;
      • (C) Shall have been licensed to practice law for no fewer than five (5) years, and for at least three (3) of those five (5) years shall have been licensed to practice in Arkansas courts; and
      • (D) Shall have successfully completed, within the two (2) years immediately preceding the appointment for which he or she is under consideration, not less than six (6) hours of Arkansas Continuing Legal Education Board-approved continuing legal education or professional training primarily involving advocacy in the field of capital trial, capital appellate, or capital post-conviction litigation.
    • (3) Consistent with § 16-87-204(b)(9), the executive director shall offer annually, to any attorney wishing to attend, no fewer than two (2) in-state conferences or seminars at each of which no less than six (6) hours of board-approved credit, as described in this subsection, is available.
  • (d)
    • (1) Notwithstanding any statutory provision to the contrary, appointments of counsel in capital post-conviction proceedings and in appeals therefrom shall be made from counsel who qualify for appointment under subsection (c) of this section or subsection (e) of this section.
    • (2) The presiding circuit judge may contact the Arkansas Public Defender Commission for a list of counsel who meet the criteria of subsection (c) of this section and may appoint counsel from that list.
    • (3) Neither the commission nor any of its components shall possess any supervisory authority over counsel appointed to represent a petitioner in capital post-conviction proceedings or in appeals therefrom.
    • (4) Nothing in this section shall preclude the circuit court from appointing an out-of-state attorney pro hac vice as co-counsel, provided that in-state counsel is appointed consistent with the provisions of this subchapter.
    • (5) Once counsel has been appointed, the presiding circuit judge shall enter a written order specifying the appointed counsel's qualifications which satisfy subsection (c) of this section.
  • (e)
    • (1) The circuit court may appoint counsel who does not satisfy all of the criteria of subsection (c) of this section only upon a written finding that the attorney is clearly competent and qualified because of his or her unique training, experience, or background to represent an indigent petitioner in a capital post-conviction proceeding.
    • (2)
      • (A) In all such cases, the attorney shall have been admitted to practice law for not less than five (5) years and shall have had no fewer than three (3) years' experience in the actual handling of capital murder prosecutions or capital murder post-conviction proceedings in Arkansas courts.
      • (B) In addition, such counsel shall have successfully completed, within the two (2) years immediately preceding the appointment for which he or she is under consideration, not less than six (6) hours of board-approved continuing legal education or professional training primarily involving advocacy in the field of capital trial, capital appellate, or capital post-conviction litigation.
    • (3) Prior to appointing such counsel, the circuit court shall conduct a hearing at which the attorney shall demonstrate that his or her experience or other qualifications meet the requirements of this subsection, and the circuit court shall make written findings specifying what unique training, experience, or background qualifies the attorney for appointment under this subsection.
  • (f)
    • (1) Notwithstanding any other provision of law, the circuit court shall fix the compensation to be paid to attorneys appointed under this subchapter, as well as the fees and expenses to be paid for investigative, expert, and other reasonably necessary services authorized by the circuit court at such rates or amounts as the circuit court determines to be reasonably necessary.
    • (2) All compensation and reasonable expenses authorized by the circuit court pursuant to this subchapter shall be paid by the commission.
  • (g)
    • (1) Not later than fifty (50) days after the filing of the petition, the circuit judge shall convene a status conference to schedule a hearing on the petition for post-conviction relief if a hearing is deemed necessary.
    • (2) The hearing must be conducted within one hundred eighty (180) days from the date of the status conference, unless good cause is shown to justify a continuance.
  • (h)
    • (1) Within thirty (30) days from the receipt of the transcript from the post-conviction hearing, if a hearing was held, or, if the circuit judge requests post-trial briefs, within thirty (30) days from the receipt of the post-trial briefs, the circuit judge shall make specific written findings of fact and shall expressly state the circuit judge's conclusions of law relating to each issue raised in the petition for post-conviction relief.
    • (2) In the event no hearing was held, the circuit judge shall, within one hundred twenty (120) days after the filing of the petition for post-conviction relief, make specific written findings of fact and conclusions of law relating to each issue presented in the petition for post-conviction relief.
  • (i) The transcription of the testimony and record in capital post-conviction proceedings shall be completed within sixty (60) days of the conclusion of the post-conviction hearing and shall immediately be provided to the parties and the Clerk of the Supreme Court.
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