Saturday, February 5, 2011

BECAUSE, DAMMIT, IT'S THE RIGHT THING TO DO - The Resource Allocation Edition

In the most recent of my continuing, albeit occasional, series of posts titled "Selling Out the Client," I wrote about Anders briefs.  An Anders brief is what a lawyer is supposed to file on behalf of a convicted (ordinarily) client pursuing an appeal when the lawyer can't find any issue of "arguable merit," anything that isn't frivolous, to file on the client's behalf.  Here's a snippet of what I wrote.
Of course, the problem with a lawyer filing an Anders brief isn't that the client will lose, it's that the lawyer is, ultimately, abandoning the client.  And really, despite what the courts say, those of us who fundamentally believe in criminal defense know that our first obligation is to the client.  Within the bounds of the law, but to the client.  Anders is a betrayal of that.  (Yes, I understand that there may be a few peculiar circumstances in which Anders actually serves the client's interest.  They are, if they exist at all, exceedingly rare.)
The post received two comments (which is two more than usual).  I'd started to write a response in the comments but decided that I'd put off, for the moment, blogging about the latest Ohio voice against the death penalty and instead respond with a full post. So although I haven't called this "Selling Out the Client - Part VI (Further Thoughts)," that's really what it is.  And it is further thoughts, not second thoughts.  There's no change in position.
Like I said, there were two comments.  emerson (and what's with the abandonment of uppercase letters, by the way?  Yeah, I get the problem with typing ALL IN CAPS, but initial capitals, properly used, serve an actual purpose; as did their purposeful abandonment by e.e. cummings, who "emerson" is not) wrote of his time as an intern in an appellate office when he asked his supervisor what you do when you can't find an issue to write about that isn't frivolous.
"You always find something," she told me. "Even when you can't find anything, you find something."
Seems to me that anyone who files an Anders brief doesn't belong in appellate advocacy.
That's basically right, but it's also too facile.  Like life itself, and certainly like law, appellate advocacy doesn't lend itself so easily to one-size-fits-all, easy answer glibness. Which is perhaps why I wasn't initially moved to respond to emerson.  I mean, he was basically right and all.
But then came the more thoughtful response and question from Jonathan Edelstein.  And I realized that in responding to him I need to respond to emerson, too.  Here's what Edelstein wrote, and it's worth, for my purposes now, reproducing in full.
Jeff, I hate Anders briefs as much as you do, and it's a point of honor with me that I've never filed one. And yet...
What if you have a CJA client who pled guilty and waived his right to appeal, and there's nothing in the record that could possibly cast doubt on the validity of the waiver? Guilty pleas are different from an appellate standpoint: the client has admitted guilt, the record is far less developed than at a trial, waivers are very hard to get around, and the facts that might overcome a waiver (e.g., ineffective assistance of counsel) are often not part of whatever meager record exists.
Like I said, I've never filed an Anders brief. I've always found some way to argue against the waiver, even if it was a hell of a stretch. But sometimes I wonder whether I _should_ try so hard for clients who have waived their rights, because all the time the courts spend adjudicating waived appeals is time they don't have for my other clients with real issues.
There's arguably a freeloading problem with indigent appeals, where defendants who have validly waived their rights say "what the hell, it's free, I'll appeal anyway." And absent some kind of a pre-vetting process for appeals from guilty pleas, this will inevitably pose a resource-allocation problem for courts and indigent-defense attorneys. We both don't like Anders, but what's your solution? 
As I say, it's a thoughtful response, but it's a false question, or maybe I should say a misguided one.
I need to start with a moment of history.
When I was in law school I worked some for a very good criminal defense lawyer.  He'd tried a case as appointed counsel in federal court and lost.  It was a tough case.  The whole thing from jury selection to verdict took less than two days, as I recall.  The defense had no witnesses, simply argued that the government didn't prove it, which was, as I recall, silly.  The judge had given the defense every pre-trial motion and ruled in its favor on every even marginally significant objection.  The AUSA trying the case didn't cheat or press his points; he didn't have to.  Now the same lawyer was to do the appeal to the 5th Circuit.  He asked me to read the record and find something.
I looked.  I found one issue worth pursuing that involved a claim of ineffective assistance of counsel. (It would have been a loser, but there was something there.)  He and I argued about my briefing it, but he won the argument on the basis that he had a built-in conflict in claiming his own ineffective assistance.  That would have to be done by habeas, and he'd give the client information on how to do it.  Meanwhile, he directed me to do an Anders brief.  It was, he said, the only one he'd ever filed.
It's also the only one I ever wrote, but as Matt Brown said, when you work for a lawyer who tells you to write one, you do it.  At least, I knew that the lawyer who had me do it was eaten up by it.  He hated, hated doing it but couldn't see an alternative.
The problem with emerson's (and his supervisor's) glib responses is the problem of saying "never."  I've written a couple of hundred appellate briefs as a lawyer.  The only Anders was that one I did as a law student.  I don't expect to be doing another.  But I can't know that.  I can't know that I won't, next week, have a case where there's absolutely nothing I can argue.  I can't know that next month I won't have a situation where it's somehow in my client's best interest for me to file an Anders brief.  I can predict the future, but not with absolute certainty.
So sure, you find something even when you can't.  And if you aren't up for that, you probably shouldn't be doing appeals.  Except who knows.
And that brings me to Edelstein's point.  What in hell do you do when there's nothing to do?  And is it really worth pursuing the dead-bang-loser appeal which eats up judicial and attorney resources.  We have a system that allows any indigent person convicted of a crime an appointed attorney to pursue an appeal.  I mean, why the hell not?  But what to do about the "resource allocation problem."
One answer, of course, is Louisiana's.  No appeals and no appointed counsel for a large swath of the convicted.  I'm told (and I'm probably getting this wrong) that in New Mexico, you have to convince an appellate court that there's a meritorious issue before it will let you pursue an appeal.  And habeas appeals (by the petitioner/convicted guy) require a COA which is basically a finding that there's something worth arguing about on appeal.  There are probably other systems that effectively limit indigent appeals, though Halbert v. Michigan would seem to place severe limits on how they can do that. 
None of those answers are satisfying though, and Edelstein, while raising the question, seems  to get the answer.  We can't pre-judge.  The person who's been convicted has a real and serious interest - at least some of the time - in challenging the conviction.  Sometimes, the interest is greater than the convicted person actually understands.  (Our clients aren't always masters of grasping what's in their own self-interest.)
What Edelstein is really asking is the common appoint-counsel/public-defender and whiny judge question.  
I've got limited resources, so how can I best allocate them?
In every sphere of life, that's probably a fair question.  And as a practical matter, those of us engaged in criminal defense, especially but not exclusively in indigent criminal defense (even the non-indigent have limited resources, and resources include, by the way, the time to do what's necessary) must deal with resource allocation all the time.  But the proper answer to the question isn't to cut back on what we do for the clients.  It's to allocate more resources.
It's that Sixth Amendment thing about the right to counsel and the right to present a defense.  It's that 14th Amendment thing about there should be no deprivation of liberty or property without due process of law and that other 14th Amendment thing about equal protection.  
Equal Justice Under Law
As it says over the front entrance to the Supreme Court (you know, the entrance that the Court forbids the people from using).
Maybe the American idea requires that we actually raise taxes rather than lowering them.  Maybe it requires that we reconfigure how other resources are allocated.  Maybe it means that we're charging too many people with crimes and spending too much money on prosecutors and prisons. . . .  Hell, I don't know.  I'm just a simple country city lawyer with a blog.
But here's what I do know.  We don't advance the system by restricting it.  We don't ensure rights by taking them away.  And we don't give in to the argument that we can't afford to do it properly.
Oh, and since a frivolous argument is one that cannot be supported by an argument made in good faith for the application, modification, or reversal of existing law, and since there are lots of qualifications on when appeal waivers actually count, and since I don't think any law that allows appeal waivers can withstand fair scrutiny (and yes, I know the courts to date don't buy into that, but I'm suggesting the reversal of existing law), I think an appeal waiver doesn't force an Anders.  I think Edelstein's own experience supports most of what I wrote in that last sentence.
And more power to both him, for fighting the good fight, and to emerson for believing in it.


  1. Since you need an opposing viewpoint here, I guess I'll take up that baton, not that I've got a real strong opinion one way or the other. Disclosure: I've never done an Anders brief.

    First, I don't think the representation of a client on an appeal has either the same intensity or requires the same degree of devotion to the client from an attorney as representation at the trial level. In fact I would go so far as to say that to display that kind of intensity and devotion would be counterproductive to the client's cause. Appellate courts are different animals entirely. Intensity and devotion would tend to merely convince the court that your arguments were less rational and less worthy.

    Since the intensity and the devotion are properly less, then it is not impermissible to set the obligation of advocacy for a particular client aside to this extent: a) that you do not HARM the particular client's interests; and b) that you have devoted every effort to come up with an argument in his favor and can't see one.

    Under those circumstances your opinion is that the client's appeal is hopeless, so there's no harm to him in simply saying it. The only obligation you can do anything about is the obligation to help the court distinguish between frivolous appeals and meritorious ones. So you may as well do that. This not only helps the court and the system but helps other clients.

    All of this is highly theoretical, I admit. The assumption that the court will do a better job spreading its attention to other non-frivolous appeals is itself risible: since the advent of the Anders briefs, of which there are a not insignificant number, the percentage of appeals won by criminal defendants hasn't improved at all and has probably worsened. This would be impossible if Anders briefs served any genuine purpose in the real world.

    But I thought this was a slightly different argument in their favor from any that were made so I figured I'd make it since you're looking for one.

  2. If you start with a faulty premise (representation on appeal needn't be zealous and you owe the client less than you do at trial), then you reach a faulty conclusion.

    On the other hand, it's clearly true that if the lawyer cannot think of a single argument in the client's favor, the lawyer cannot make an argument in the client's favor (at least, not without assistance from someone who can think of such an argument). But that's a tautology that has nothing to do with whether one ought to make such an argument even if it's weak.

    And anyone who's been at this for a while knows that you sometimes win with the arguments that can't win (just as you sometimes lose with the ones that can't lose).

  3. I love the word tautology. It's a sign of good reasoning in the one who uses it properly.

    Regarding the faulty premise, I don't think I said that representation on appeal needn't be zealous. A fairer characterization would be that in the case of an appeal, the "zeal" is of a more sober, detached and intellectual sort. And I submit that you didn't address the more significant point that to exhibit zeal at the appellate level that would be appropriate at the trial level would actually be harmful to the client's chances.

    Now although I think that is true I'm still having a hard time getting from there to the Anders brief, which is affirmative conduct, and even though it may not be substantively harmful to the client, it is still technically adverse to the client's procedural position, as it were, which is at the very least a weird thing for the client's own lawyer to do.

    I mean, it could really only come up in an assigned situation. If someone tries to retain you and you can't make an argument, you tell that to the client, not the court. But if the court assigns you, silence is not an option, speaking in the client's favor is not possible, and the only thing that's left is an Anders brief.

    So maybe that's the better argument in favor of Anders briefs: it wins by default.

  4. My 2 cents. I've written on, and won a few issues in front of the 9th Circuit, and have certainly lost more than I have won. I'm just about to file my first Anders brief.

    Case in point, client flips before trial, requests more than a few 5k points and a downward departure for time served in a Mexican prison waiting extradition. At sentencing, Client asks trial attorney to argue for double the amount of credit for time served based on the fact the conditions of the foreign prison where he spent awaiting extradition to the United States were inhumane (no evidence was offered on this issue, however). Trial attorney argues for a 40 month departure as requested by Client. Court gives a low end guideline sentence on a Level I Hx. Court then departs 2 levels under 5k1.1 and gives an additional 20 month departure which represents time served in a foreign prison awaiting extradition.

    Client wants to appeal the sentencing on the basis that he didn't get enough credit for the time he endured in a foreign prison awaiting extradition to the U.S - he says double what the BOP allows. The plea colloquy could not have been more thorough. The plea agreement contains a waiver of appellate rights.

    Client has no non frivolous grounds to appeal. Even if he could, however, he would end up breaching the plea agreement and losing his 5k, would potentially lose his downward departure and risks being tied to a 924(c) charge, plus additional weight that the government did not charge as part of the plea deal.

    Sometimes, an Anders brief is in the best interests of a client, even though the client may not think so.

  5. I should mention that, in reference to my above comments, in my district, an Anders brief won't trigger an AUSA into revoking a plea agreement - doggedly pursuing a frivolous appeal will.

    1. Irving Younger said it far better than I can:

      "The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, 'I beseech you, in the bowels of Christ, think it possible that you may be mistaken.' Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers 'correct.' Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.

      "And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised."

      The correct answer to every legal question is "It depends." The correct answer to every significant question of philosophy and perspective is "Perhaps."

      I said that there can be a few circumstances in which an Anders might be in a defendant's interest. I also said that I don't know what case I'll undertake next week that simply has nothing I can argue.

      The only rules of criminal defense are that you represent the client and do what's in her best interest within the bounds of the law. Beyond that, it's all case by case.