Let's say you're just about to start a death penalty case and you learn that the lead counsel has met all the qualifications for being capital qualified, but has not yet been put on the list. What happens now? Obviously, the trial should be postponed until they are official. But what happens with all the previous hearings, motions, etc. Do they have to be re-done after the attorney gets the stamp of approval? (My gut says no, that the trial is where it really counts, but I couldn't find anything in my quick, panicked search of the code)

I have not tried researching capital cases but have in general. Our indigent defense plan requires certain qualifications(i.e. years licensed) for each level of offense but have found many attorneys on the list do not meet these qualifications. Speaking to a very reputable judge I was told it would probably be grounds for ineffective assistance of counsel, but the prejudice prong will still need to be met. I assume that this would be true in all cases.

I can't imagine that the lawyer's presence or absence on a formal list makes any difference as to an ineffective assistance claim. The lawyer's actions during trial, assuming he has a license, are what matters for the constitutional claim.

I'd get the attorney added to "the list" AND have the court find ON THE RECORD that the attorney was qualified for inclusion on the list since X date (prior to any hearings, the initial appointment, etc.). AND, ideally, get the Defendant to agree on the record that he is satisfied with the representation of the attorney to date (of course the defendant may see an opportunity for delay, so you might want to skip this last part).

In Hughes v. State, 24 S.W.3d 833 (Tex. Crim. App.), cert. denied, 531 U.S. 1980 (2000), the CCA found that it was harmless error where the defense counsel were not on the list at the time of trial, but met the qualifications for the list, were later added to the list, and were otherwise effective.

There has been some other discussion about Mr. Hughes in the forum this week . . . he is scheduled to depart this world tomorrow at 6 p.m.

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Originally posted by Larry L:
I'd get the attorney added to "the list" AND have the court find ON THE RECORD that the attorney was qualified for inclusion on the list since X date (prior to any hearings, the initial appointment, etc.). AND, ideally, get the Defendant to agree on the record that he is satisfied with the representation of the attorney to date (of course the defendant may see an opportunity for delay, so you might want to skip this last part).

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And good work by Dallas County on the Hughes case, in keeping our state a safer place for my family, friends and I. Despite what MTVU says...

Actually my comment was on the fact that an attorney did not meet the qualifications which is distinguishable from Hughes. Our indigent defense plan requires attorneys to be practicing for 5 yrs to be eligible to be appointed to a 1st degree felony, if the attorney has only been licensed for 3 or 4 years it violates the qualifications set forth by the judges in the plan. That is the reason I said that there could be an ineffective assistance of counsel claim based on violation of the statute that requires attorneys meet the qualifications set forth by the judges. (CCP art. 26.04(d)(2) and (e). That does not mean that the defendant would be able to prove IAC without still showing prejudice, it is just a question that has not been resolved as of yet.

The same arguments should work even for an attorney who does not meet the guidelines. If the record reveals they were, in fact, effective, there is no harm from any statutory violation. It is non-constitutional error. Violations of the qualification statute won't be cognizable in habeas because they are statutory.