Friday, February 4, 2011

Selling Out the Client - Part VI

Your client was convicted of a crime.  You're doing the direct appeal.  Maybe you've been retained; maybe you were appointed; maybe you're a public defender.  Whatever.  It's your case.
You represent the convicted guy or gal.
You know that on appeal you're limited to the record from the trial court.  You don't get to call new witnesses or do a better cross-examination.  You can't ask the judge to tell the jury to disregard.  You don't get to have the drugs reweighed or to have your own arson expert.  You can't get another set of DNA tests done in the hope that they'll show it wasn't your client's semen.  No new psychologist will be able to tell the court of appeals that your guy was crazy as a bedbug and when he shot up the pancake house he actually thought he was playing badminton with some 8-legged-6-armed-14-eyed creature from Tau Centauri with the winner getting to star opposite Angelina Jolie in a remake of Love Story.
But you're stuck with the record from the trial court, and the record from the trial court sucks.  You read the pre-trial motions.  All losers.  You read the trial transcript.  Sure the prosecutor cheated some and the judge blew a ruling of two.  And there was that time when your client's lawyer didn't bother to object to the Confrontation Clause violation, but who knew that SCOTUS was going to decide Crawford that way?  Hell, you probably wouldn't have objected, either.  Anyhow, your client would probably have been found guilty regardless of all that.  And you sure aren't likely to win an appeal on this stuff.  All those issues will be losers.
And if you can't win, if all your issues lose, why then, really, it's just silly to appeal.  I mean, the whole thing's frivolous.  Right?
Now what do you do?  You look at Anders v. California from back in 1967 when the Supreme Court addressed just that question.
We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.
The answer, as I've explained before, is that you acknowledge that your primary duty isn't to the client.  Your primary duty is to the court and the system.  You can't win.  It's hopeless.  So you don't fight.  You tell the client you're throwing in the towel and then you file and Anders brief telling the court that the appeal is frivolous and asking to withdraw.  
Stop the train.  I want to get off.
Oh, you're supposed to point to anything in the record you can find that might be arguable error and explain why it's not.  (Yep.  You're supposed to explain why the client should lose.)  The client can then file a pro se brief.  And the court is supposed to scour the record itself looking for arguable error, something that isn't frivolous.  (And occasionally it finds something.  See State v. Robinson.) But the client rarely has anything useful to add.  (Which is how it's supposed to be.  Lawyers are, at least in theory, trained advocates while appellate clients are, well, convicts.)  And really appellate judges and their staff attorneys aren't criminal defense lawyers or appellate specialists or even advocates for the criminally convicted.  'Tain't their job.*
So, in the ordinary course of things, you've abandoned the client whose left without any meaningful representation.  With nothing.  Zip.  Zilch.
The lawyer who files Anders may do it out of laziness.  May do it from lack of interest.  May do it because, 
darn it, there just aren't any real issues here.
Still, as Justice Souter recognized in a footnote to his dissent in Smith v. Robbins, lawyers aren't fungible.  Some will have
[A] keener eye for arguable issues or a duller nose for frivolous ones.
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 appellate judges I've spoken with about it don't like Anders cases.  Anders is, after all, a breakdown in the system.  The judges don't want to scour the record looking for error.  They hate doing it (or, more precisely, having their law clerks/staff attorneys do it).  They didn't become judges so that they could be replacement advocates for our clients.  And while Anders makes it easy for the client to lose, the judges know perfectly well that the client will probably lose anyway, and Anders leaves a bad taste.  It's not really how the system is supposed to work.  They get that.
But if the judges don't like it, they're OK with it, too.  Because they don't really want to have to deal with worthless appeals
Let's just have a system to shut them off.
Good idea!
Some courts have gone farther, which brings me, at last, to where I'm going.  The other day, the 5th Circuit decided two Anders cases.  In United States v. Garland, an appeal from a guilty plea, Garland's lawyer filed what purported to be an Anders brief but didn't adequately (or even at all) address potential appellate issues or explain in any detail why there weren't any.  Not enough, said the court.  In fact, we have a checklist on our website, the court explained, telling you what to look for in an appeal and guidelines for what to put into an Anders brief.  You didn't obey, so we're not letting you withdraw.  You have to represent the client you tried to sell down the river.
Accordingly, we ORDER counsel for Garland to file within 30 days a supplemental brief that comports with Anders following the guidelines set forth above or, in the alternative, a brief on the merits addressing any nonfrivolous issues that counsel deems appropriate. If counsel files a supplemental Anders brief, he should demonstrate that he has addressed the issues listed on the Anders checklist found on this court’s website at insofar as it applies to his case, to assist the court in its review.
And then there's this.
[I]f counsel submits a brief meeting this standard, we will no longer independently scour the record looking for nonfrivolous issues.
B.W. Barnett at Liberty and Justice for Y'all put it,
Use the court’s template and you can’t go wrong.
The court's we-won't-be-bothered rule, that if a lawyer files a brief satisfying the guidelines and checklist the court won't bother to look at the record to see if there are issues the lawyer missed or ignored or abandoned, is the guts of the court's other Anders decision, United States v. Flores.
Flores gets there by adopting the holding of a United States v. Wagner, a 1996 case from the 7th Circuit.  (The 3rd Circuit seems to have adopted the same rule.)  Writing for a panel of the court in Wagner, Judge Posner lays out the new rule.
The intermediate position, which we now adopt, is for the appellate court to be guided in reviewing the record by the Anders brief itself, provided that the brief is adequate on its face. (If it is not, we shall deny the Anders motion and either direct counsel to file a new brief or discharge counsel and appoint a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer's discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court's decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer's competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research.
There's a logic to this if you buy the underlying principle that a criminal appellant is entitled only to a marginally competent lawyer doing a marginally competent job.  After all, if the lawyer can convince the court of his marginal competence and the marginal competence of his review of the record for appeal, then why should the court engage in its own review?  Make it look good, and we're done.
Like I say, there's a logic.  But it's bullshit.
The court's assumption is that if the lawyer turns in something that purports to address all the issues in its checklist, then the lawyer must diligently and as an advocate examined the record and researched the potential issues.  But the assumption is nonsense.  Oh, it might be true.  Just as easily, it might be that the lawyer files some seemingly-compliant BS.
Keener eye or number nose.
It's really all about selling out the client.

*Here's what Anders actually says (with a footnote silently omitted and a sentence referring to the facts that led to the Supreme Court's decision omitted with ellipsis).
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. . . . Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.


  1. I think you're right on the money here, Jeff. I interned in an appellate office a few summers ago and I asked my supervisor what happens when you can't find anything in the record to support a non-frivolous argument.

    "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.

  2. 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?

  3. Jonathan, I agree that guilty pleas will more likely deserve an Anders brief, because direct appeal is not the proper method to attack ineffective assistance of counsel, or jury tampering, or other issues outside the record. Because these cases are mostly appointed there is no system to sift out the free riders. I refuse many cases because they aren't good cases, but on appeal I don't have that choice. An Anders brief gets the client a second look by the judge, and by an additional attorney. How can this be against the clients interest?

  4. Who is that "additional attorney"?

    That "second look" is ordinarily very cursory. On the incredibly rare instances when the court finds an issue, it's ordinarily one that any lawyer who's been paying attention to the case law or actually reading the record should have found. The result isn't that a new and hitherto unforeseen issue is raised but that the lawyer filing the Anders is embarrassed.