Thursday, February 12, 2015

Selling Out the Client - Part VI

The court finds there were reasonable grounds for this appeal.
That's boilerplate language the local intermediate appellate court sticks at the end of just about every opinion.  Because it's boilerplate, we tend to ignore it.  

Stupid argument. 
The court finds there were reasonable grounds for this appeal.
Dead bang loser.
The court finds there were reasonable grounds for this appeal.
Novel argument that results in a dramatic change in the system.
The court finds there were reasonable grounds for this appeal.
Really, who gives a shit.
The court finds there were reasonable grounds for this appeal. 
Or, as in State v. Moses Taylor, a case the court decided last week involving an appeal in which Taylor's lawyer told the court his client hadn't a thing to argue that wasn't wholly frivolous, what's known as an Anders brief, and the court agreed.
The court finds there were reasonable grounds for this appeal. 
Taylor's actually an interesting case.  Not for the court's insightful legal analysis, and certainly not for the discussion of the underlying facts or the substance of his argument or anything having actually to do with Mr. Taylor's situation.  (He'll be doing a year in the pokey and then two years on community control - all that after finishing out some time for another offenses.)  No, Taylor's interesting because the court took it as an opportunity to announce what a lawyer's got to do when he decides to sell out his client and what a court's got to do when the the lawyer makes that decision.

It is, as the court generously notes, a problem.  The lawyer has an absolute ethical duty to represent the client and an absolute ethical duty to not make a frivolous argument.  But when the only argument the lawyer can find is frivolous ???  Well then, the lawyer no longer has a right to represent the client's interest.  And the client, who has a right to a lawyer who will represent her interest, has no right to a new lawyer who will do that.  To put that in formal, legal language,
Not wanting to take all the heat itself, the court quoted the berobed ones in D.C. who laid out the problem.
The United States Supreme Court has acknowledged the dilemma posed by a lawyer’s obligation to represent a client with reasonable diligence yet not bring frivolous actions, noting that “‘an attorney confronted with the Anders situation has to do something that the Code of Professional Responsibility describes as unethical; the only choice is as to which canon he or she prefers to violate.’” 
But, once again, there is no choice.  Faced with irreconcilable imperatives (do the job right v. go along to get along), the courts are clear that the job client loses.  Hell, the language of the ethical rules makes that clear.  Lawyers
shall not bring or defend a proceeding, or assert or controvert an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.
And lawyers should represent their clients with "reasonable diligence."  You know, enough but not too much.  (Yeah, they taught us about zealous representation when we were in law school.  But that's so 20th Century [or maybe 19th Century, or 18th].  Really, close enough for government work is all that's actually required - if that much.)

And so the lawyer must not only tell the court that there's nothing to be done for the client, the lawyer must also explain why anything that might be done for the client should fail.  And, the court says, if the lawyer doesn't do a careful enough of job of explaining not only that the client should lose but also why the client should lose, the court will send the case back to the lawyer to do a better job of explaining why the client should lose.  Really, I'm not making this up.
In cases of de minimis compliance or non-compliance with the standards for Anders briefs, counsel will be ordered to file a conforming brief.
More, if counsel really fucks up, truly fails to explain just how and why it's right and proper that his client got screwed and has to spend the rest of his life in prison, well then the court might appoint new counsel who'll do a better job of selling out the client.  Oh, and the lawyer who was insufficiently zealous at selling out the client might get sanctioned for it. 

There is, of course, good news.  The court itself will scour the record to see if there are meritorious issues counsel missed.  Oh, wait, no it won't.  All it has to do is review the issues that counsel has said are worthless.  After all, it was the lawyer's job to find them.  Russ Bensing, who writes The Briefcase, the must-read blawg for Ohio criminal defense lawyers, explains.
What about the court? It's required to "fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous." How rigorous does that examination have to be? The court doesn't have "to undertake a completely independent examination of the record to determine whether there might be colorable issues on appeal." That's overkill, and essentially makes the appellate court the defendant's counsel. Instead, the requirement for independent review by the court "applies only to the issues or points raised by either the Anders brief or the pro se brief." That sigh you just heard is one of relief by the court's staff attorneys, knowing that when an Anders brief comes in, they will no longer have to scour the transcripts to see what might have been missed.
The US Supreme Court decided Anders v. California, setting forth the basic ground rules for cases where counsel can't find anything of even arguable merit to say for the client, back in 1967.  Clients have been bitching about their lawyers selling them out ever since. But really, they can be comforted.

As long as counsel does a competent job of explaining why the client should lose, the client will be fine.  After all - 
The court finds there were reasonable grounds for this appeal.


  1. Shrug. Idaho doesn't allow Anders briefs, so attorneys will either file an attack on the sentence as "excessive" thinking that can't ever be frivolous, which has lead us to a boilerplate decision denying relief that our court of appeals "un"publishes 10 times a day, or they... no that's about it. Can't say this seems like a great solution. If the client really does have an appealable issue, they still get screwed.

    The more interesting question is: when is appellate counsel deficient? Idaho case law has just recently determined that it's extremely difficult for appellate counsel to be deficient, as compared to trial counsel. Appellate counsel can choose not to pursue what the Court calls a "non-frivolous argument." That to me is pretty stunning. If there's a way to fix the fact that appellate counsel messed up, you'd think it'd be on post-conviction. At least in Idaho, you'd be wr

    1. It's not just Idaho. Courts often say that appellate counsel is expected not to pursue every non-frivolous issue but to winnow things down to focus on the winners. That, they tell us, is part of proper appellate advocacy. And it's true that if I have a really good issue, I don't want to surround it with issues that make it look like I don't trust the one so I hurl every bit of nonsense I can think of at the court.

      But like all those rules, it's not always applicable. In capital cases, for instance, competent advocacy requires raising every even marginally colorable claim. And in other cases, there are times when you raise an issue not because it currently has legs, but because you're building a record or hoping to change the law or . . . . Hell, there are a ton of reasons.

      Of course, courts don't want to hear that. They want to find that there's no such thing as IAC because if trial counsel (or appellate counsel) was constitutionally deficient, then the client gets some sort of relief (which the courts don't want to give) and the system acknowledges that it failed at some level (which the courts really don't want to admit).