THE MEANINGLESSNESS OF DELAYED APPOINTMENTS AND DISCRETIONARY GRANTS OF CAPITAL POSTCONVICTION COUNSEL

Indigent capital inmates in Alabama who wish to pursue state postconviction remedies will receive court-appointed counsel only if a court, in its discretion, 1 determines "that counsel is necessary to assert or protect the rights of the petitioner.' 2 To satisfy this standard, one would think that Alabama courts would make the appointment determination, as well as the appointment, well before the postconviction petition must be filed so that counsel could actually assist the capital inmate with investigating, discovering, and properly raising all known and knowable claims.Indeed, for precisely these reasons, capital inmates seeking federal habeas relief may invoke their mandatory statutory right to counsel before filing their petitions.3 Unfortunately, Alabama does not follow this practice, and instead delays the appointment determination until after the capital inmate has filed a capital habeas petition 4 and survived summary dismissal 5 -two very difficult tasks, to say the least.Even a disinterested observer would appreciate the potential problems posed by Alabama's system, especially for