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

Sigh!

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.