MEMORANDUM

JAMES K. BREDAR, Chief District Judge.

Defendant Marquise McCants is charged with use of a firearm resulting in death during and in relation to a drug trafficking crime, a death eligible offense pursuant to 18 U.S.C. § 924(j). (ECF No. 32.) His trial is scheduled to begin on May 20, 2019, with an expected duration of three weeks. (ECF No. 50.) Attorney Gary Proctor, counsel for McCants, has moved to withdraw and has asked the Court to appoint alternate counsel.1 (ECF No. 52.) For the reasons set forth below, the Court grants Proctor's motion in part.

Under 18 U.S.C. § 3005, indictment of a death eligible offense triggers a defendant's right to two attorneys, at least one of whom "shall be learned in the law applicable to capital cases." Id. Thus, in accordance with this statute, the Court previously appointed two attorneys to represent McCants: Gary Proctor as learned counsel and Jennifer Wicks as co-counsel. (See ECF Nos. 35, 45.) Since their appointment, however, two developments have arisen that call into question the contours of McCants' right to counsel under 18 U.S.C. § 3005. First, on January 25, 2019, the Government announced its intention not to seek the death penalty against either McCants or his co-defendant, Jonathan Edges. (ECF No. 49.) Then, on February 8, 2019, Proctor developed an irresolvable conflict and asked the Court to appoint alternate counsel to represent McCants alongside Wicks. (ECF No. 52.) Proctor qualifies as learned counsel but Wicks does not. Thus, the issue before the Court is whether the attorney appointed to replace Proctor must be "learned in the law applicable to capital cases," given that this is no longer a capital case. 18 U.S.C. § 3005.

The Court is mindful of the Fourth Circuit's holding in United States v. Boone, 245 F.3d 352 (4th Cir. 2001), that a defendant charged with a death eligible crime is entitled, under 18 U.S.C. § 3005, to representation by two attorneys regardless of whether the death penalty is actually sought.2 Id. at 360-61. See also United States v. Robinson, 275 F.3d 371, 384 (4th Cir. 2001) ("Under Boone, the failure to provide Robinson with two attorneys throughout trial was plain error even though the Government withdrew its notice of intent to seek the death penalty."). Accordingly, the Court will appoint a second attorney to represent McCants.

However, the Court sees no purpose in requiring the newly appointed lawyer be "learned in the law applicable to capital cases," as this is no longer a capital case. 18 U.S.C. § 3005. Defendants in capital cases are appointed learned counsel because "death is different in kind from any other punishment," Gregg v. Georgia, 428 U.S. 153, 188 (1976), and because such cases involve unique procedural aspects. For instance, prior to the government's decision to seek or not to seek the death penalty, defense counsel may present mitigating factors counseling against the imposition of death. Then, if the government decides to seek the death penalty, the bifurcated nature of a death penalty trial requires that defense counsel understand the impact of the sentencing process on the guilt phase. When a defendant is no longer facing death, however, the requirement that an attorney be "learned in the law applicable to capital cases," rather than simply being an able practitioner adept at trying serious felonies, serves no function. 18 U.S.C. § 3005. See also Robinson, 275 F.3d at 384 (declining to reverse the defendant's conviction because, although the trial court erred in relieving one of the defendant's two attorneys from his duties after the government elected not to seek the death penalty, "the failure to provide a non-capital defendant with the benefit of a provision designed to provide additional protection to capital defendants . . . did not affect the fairness, integrity, or public reputation of judicial proceedings.").

In addition, mandating the appointment of learned counsel in this instance would disrupt the proceedings against McCants and Edges. The Court inquired into the availability of learned counsel with the Criminal Justice Act coordinators in this district and learned that, at this time, there are three attorneys designated as learned counsel that are sufficiently free of conflicts as to make them available to represent McCants. See Maureen Essex, 02/08/19 CJA Memorandum. Two of these attorneys, however, have scheduling conflicts that would require this Court to continue the trial, and the other attorney is unable to take on an additional case at this time. Id. Weighing the delays that would be associated with continuing the trial until learned counsel becomes available against the harm to McCants of proceeding to trial without learned counsel in this non-capital case, and not interpreting Boone to specifically require the appointment of learned counsel in the peculiar circumstances of this case, the Court concludes that replacement counsel for Proctor need not be "learned in the law applicable to capital cases." 18 U.S.C. § 3005. Accordingly, in an accompanying order, the Clerk will be directed to nominate a member of the Court's CJA felony panel to replace Proctor, without regard to whether that lawyer is learned in the law applicable to capital cases.

TO: Chief Judge James K. Bredar

FROM: Maureen Essex, CJA Coordinating Attorney for the United States District Court of the District of Maryland

DATE: February 8, 2019

RE: Availability of learned counsel to represent Defendant McCants

MEMORANDUM

In anticipation of Gary Proctor's motion to withdraw as appointed learned counsel for Mr. McCants being granted, I researched the availability of learned counsel in this District for his trial set to begin on May 20, 2019. Only three learned counsel are able to represent Mr. McCants. Two of those lawyers, however, are scheduled to be in trial in another case, United States v. Dante Bailey et al., from March 18, 2019 to May 6, 2019. Given the short period of time between the anticipated conclusion of the Bailey trial and the beginning of Mr. McCants' trial on May 20, 2019, they would not be able to adequately prepare to represent him. The remaining learned counsel is not suitable to appointment as substitute counsel because his case load is already too high.