Ind. Criminal Rule 6.1

Effective January 1, 2024

(A) Supreme Court Case Number.

Whenever a prosecuting attorney seeks the death sentence by filing a request pursuant to

Ind. Code § 35-50-2-9, the prosecuting attorney must file that request with the trial court and

with Supreme Court Services, Indiana Supreme Court, 315 State House, Indianapolis, Indiana

46204. Upon receipt of same, Supreme Court Services must open a case number in the

Supreme Court and notify counsel.

(B) Appointment of Qualified Trial Counsel.

Upon a finding of indigence, it is the duty of the judge presiding in a capital case to enter a

written order specifically naming two 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 of the attorneys appointed by the court must be designated as lead counsel. To be eligible to serve as lead counsel, an attorney must:

(a) be an experienced and active trial practitioner with at least five years of criminal litigation experience;

(b) have prior experience as lead or co-counsel in no fewer than five felony jury trials

which were tried to completion;

(c) have prior experience as lead or co-counsel in at least one case in which the death penalty was sought; and

(d) have completed within two years prior to appointment at least twelve 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 must be designated as co-counsel. To be eligible to serve as co-counsel, an attorney must:

(a) be an experienced and active trial practitioner with at least three years of criminal litigation experience;

(b) have prior experience as lead or co-counsel in no fewer than three felony jury trials

which were tried to completion; and

(c) have completed within two years prior to appointment at least twelve 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 must provide each client with

quality representation in accordance with constitutional and professional standards.

Appointed counsel must 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 must not make an appointment of counsel in a capital case without assessing

the impact of the appointment on the attorney's workload, including the administrative

duties of a chief or managing public defender.

(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 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 days of the trial

setting in the capital case;

(iii) none of the public defender's cases will be set for trial within fifteen 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). The head of the local public defender agency or office, or in the

event there is no agency or office, the trial judge, must 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, including the administrative duties of a chief or managing public defender. 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 must

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 must treat each capital case as the equivalent of forty felonies under the Commission's “all felonies” category. Appointment of counsel is also subject to subsections (B)

(3)(c)(ii), (iii) and (iv).

(C) Compensation of Appointed Trial Counsel.

All hourly rate trial defense counsel appointed in a capital case must 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 must submit periodic billings not less than once every thirty days after the date of

appointment by the trial court. All salaried capital public defenders compensated under subsection (4) of this provision must 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 must 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, must 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 must be made within thirty 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 is subject to review and adjustment on a biennial basis by

the Chief Administrative Officer (CAO) of the Indiana Office of Judicial Administration (IOJA).

Beginning July 1, 2002, and July 1st of each even year thereafter, the CAO will 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, for the last two years ending December 31st preceding the

announcement. The calculation by the CAO must 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 CAO of the

IOJA 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 must be provided, upon an ex parte

showing to the trial court of reasonableness and necessity, with adequate funds for invest-

igative, 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 must 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 must be provided with adequate funds for invest-

igative, 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 Ind. Code § 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 Ind. Code § 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 must submit to the CAO of the IOJA 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 months prior to July 1, or a certification that no such prosecutor

assignments were made. The CAO must 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

CAO 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 must provide for stenographic reporting with computer-aided transcription of all phases of trial and sentencing

and all evidentiary hearings, including both questions and answers, all rulings of the judge in

respect to the admission and rejection of evidence and objections thereto and oral argument.

If the parties agree, on the record, the court may permit electronic recording or stenographic

reporting without computer-aided transcription of pre-trial attorney conferences and pre-trial or post-trial non-evidentiary hearings and arguments.

(E) Imposition of Sentence.

Whenever a court sentences a defendant to death, the court must 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 must be forwarded by the court imposing sentence to Supreme Court Services. When a trial court

imposes a death sentence, it must, 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 must set an execution date one year from the date of

judgment of conviction. The trial court must send copies of the order to:

(1) the prosecuting attorney of record;

(2) the defendant;

(3) the defendant's attorney of record;

(4) the appellate counsel, if such has been appointed;

(5) the Attorney General;

(6) the commissioner of the Department of Correction;

(7) the warden of the institution where the defendant is confined; and

(8) 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 must forward to Supreme Court Services 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 has 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 must

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).

(2) Stay of Initial Execution Date.

Upon petition or on its own motion, the Supreme Court must stay the initial execution date

set by the trial court. On the thirtieth day following completion of rehearing, the Supreme

Court must enter an order setting an execution date, unless counsel has appeared and

requested a stay in accordance with section (H). A copy of any order entered under this provision will be sent to the persons set forth in section (F).

(H) Post-Conviction Relief—Stay—Duty of Counsel.

Within thirty 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) must 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 must be served by counsel on Supreme Court Services. 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 day following completion of any appellate review of the decision in the post-conviction proceeding, the Supreme Court must enter an order setting the execution date. It is

the duty of counsel of record to provide notice to Supreme Court Services 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 must on the same day sentence is imposed

order the court reporter and clerk to begin immediate preparation of the record on appeal.

(J) Appointment of Appellate Counsel.

Upon a finding of indigence, the trial court imposing a sentence of death must 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 must 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, must:

(a) be an experienced and active trial or appellate practitioner with at least three years of

experience in criminal litigation;

(b) have prior experience within the last five years as appellate counsel in no fewer than three

(3) felony convictions in federal or state court; and

(c) have completed within two years prior to appointment at least twelve 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 must 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 must 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 must 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 must

submit periodic billings not less than once every thirty days after the date of appointment.

Attorneys employed by appellate counsel for consultation must 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 must 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 must

be made within thirty 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 must be subject to review and adjustment as set forth in section (C)(1).

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 CAO of the

IOJA 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), the county must comply with, and counsel must 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 must be reimbursed for reasonable incidental expenses as approved by the court of appointment.