Background

Every person accused of a felony (or of certain misdemeanors, not addressed in this article) in the United States, including California, has the right to representation by an attorney at all significant stages of the trial. This right is guaranteed by the Sixth Amendment to the U.S. Constitution. A person who cannot afford an attorney—called an “indigent” defendant—is still entitled to representation, and a court will appoint an attorney to represent such a defendant. These trial attorneys are known as public defenders and are paid by the state.

The right to representation does not stop at the end of a trial. In 1963, the Supreme Court of the United States held that a criminal defendant has the constitutional right to an attorney for the purposes of a first appeal from a conviction at the trial court level. After that decision, the California appellate courts began appointing attorneys for indigent defendants’ appeals.

However, the system for appointing attorneys was piecemeal; no statewide regulations existed for appointments and appointment procedure varied from court to court. This system had little supervision over which attorney would be appointed to which case or over the quality of the representation. In 1976, the State Public Defenders Office opened in California and was thought to be a solution to the piecemeal approach to appointments. But the Office concentrated more and more on death penalty cases and currently represents only death-penalty defendants in post-conviction proceedings.

In 1983, at the request of the Chief Justice of the California Supreme Court, the California State Bar Association created a committee to address representation of indigent defendants on appeal. This committee was called the California Appellate Project (“CAP”). The CAP ultimately established, for each judicial district in California, a main office to serve as a resource for attorneys appointed to represent defendants on appeal and to monitor the quality of the representation.

  1. Background
  2. California Rule of Court 8.300 and the CAP
  3. The Appellate Project in California Appellate Districts
  4. Representation by the California Appellate Project

California Rule of Court 8.300 and the CAP

California Rule of Court 8.300 (formerly Rule 76.5) requires each court of appeals to:

  • adopt procedures for appointing appellate counsel for indigents who have a right to counsel;
  • evaluate the attorney’s qualifications for appointment and, if the attorney is qualified, place the attorney’s name on a list to receive appointments in appropriate cases;
  • match counsel with the demands of the case, considering:
    • the length of the sentence,
    • the complexity or novelty of the issues,
    • the length of the trial and transcript, and
    • questions concerning the competence of trial counsel;
  • review and evaluate the performance of each appointed counsel to determine whether counsel should remain on the list at the same level, be placed on a different level, or be deleted from the list.

The rule permits the court to meet its obligations by contracting with a private non-profit administrator to coordinate the assignment and evaluation of appointed counsel in indigent appeals. The CAP is that administrator.

  1. Background
  2. California Rule of Court 8.300 and the CAP
  3. The Appellate Project in California Appellate Districts
  4. Representation by the California Appellate Project

The Appellate Project in California Appellate Districts

The CAP has five offices serving the six appellate districts in California: The First District Appellate Project; the California Appellate Project, Los Angeles (covering the second district); the Central California Appellate Project (covering the third and fifth districts); Appellate Defenders, Inc. (covering the fourth district); and the Sixth District Appellate Program. Another office, the California Appellate Project, San Francisco, is the administrator for appointment of private appellate counsel in death penalty appeals.

  1. Background
  2. California Rule of Court 8.300 and the CAP
  3. The Appellate Project in California Appellate Districts
  4. Representation by the California Appellate Project

Representation by the California Appellate Project

If a defendant was represented by appointed counsel at trial, he or she is automatically contacted by the CAP to determine entitlement to representation on appeal. Otherwise, a defendant who wants to be represented by a CAP attorney must apply to the appellate court for such an appointment. In either case, a defendant establishes indigency by filling out a form with the appellate court listing income, assets, and liabilities, such as living expenses and pre-existing debt. Each application is considered on a case-by-case basis, and there is no established dollar amount that qualifies a defendant as indigent.

Once indigency is established, the court will refer the case to the appropriate CAP office. The office will contact the defendant and assign an attorney to the case. The appointed attorneys are private attorneys who are members of the CAP and whose experience, expertise and skills match the needs of the case.