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Anders Briefs

Imagine a defense lawyer getting up in opening statement at a trial and telling the jury:

Ladies and gentlemen, after carefully reviewing all the evidence in this case, I've concluded that my client has no meritorious defenses.  There are a couple of arguments I possibly could make, but they'd be frivolous.  I'll mention them to you, and if my client wants to argue them further, that's up to him.  You give them whatever consideration you deem appropriate.

And with that, the lawyer picks up his briefcase and walks out of the courtroom.

Well, that's the trial equivalent to an Anders brief.

An Anders brief takes its name from the 1967 Supreme Court decision in Anders v. CaliforniaAnders' appointed appellate attorney had simply filed a letter with the court stating that there was no merit to the appeal.  The Court held this was a denial of Anders' Sixth Amendment right to counsel, but left an out:  an attorney could seek to withdraw from a case on the grounds that any appeal would be frivolous, but he had to furnish a brief referring to anything in the record which could possibly support an appeal, and he had to provide a copy of it to his client, who then had the right to file his own brief.  The court itself couldn't take the attorney's word for it, but had to examine the record on its own to determine whether an appeal was wholly frivolous.

Some courts, and some attorneys, take that obligation more seriously than others.  I've filed two Anders briefs in my career -- more on that in a moment -- and all I got in response was a post-card from the 8th District announcing that I'd been given permission to withdraw, and that the appeal was dismissed.  The 8th has been a little more diligent about it recently, as this decision from a couple months back shows.   Still, either lawyers in Cleveland are unduly diligent in ferreting out errors, or the court isn't going overboard in complying with its duty to independently analyze the record:  a Lexis search shows only 11 hits for "Anders w/s brief" in the 8th since 1985, one each in the past four years.

The opposite situation occurs in the 12th District, where the same search reveals an astonishing 588 hits, 31 of them just this year.  That's out of an even 100 criminal cases this year.  You do the math.  It's hard to tell whether judges in the 12th District are incredibly adept at keeping their trials free of error, or if appellate attorneys are unusually inept at finding them, or some combination of the two; virtually all the Anders cases are disposed of by a per curiam decision such as this one reciting nothing more than that counsel has filed such a brief, and that the court, after reviewing the record, agrees that any appeal would be frivolous.  Compare the cursory two-paragraph dismissal with this opinion on an Anders brief from the 6th District, where the court spends 12 pages detailing the seven potential errors identified by appellate counsel, before agreeing that all are frivolous. 

The thought that  just maybe there might have been a winnable, let alone appealable, issue in 31% of the criminal cases in the 12th District is buttressed by what's happened in other districts.  Two weeks ago, in State v. Williams, the 6th Circuit (again) granted leave to withdraw, but found a potentially meritorious error and designated a different attorney to present it, noting pointedly that "an Anders brief is not a substitute for an appellate brief argued on the merits."  Last year, the 2nd District reversed a conviction on a defendant's pro se brief, after his appointed attorney had filed an Anders brief.  The same thing happened two years ago in State v. Kerby:  after counsel filed an Anders brief, the court and determined that there was a potential issue as to the voluntariness of the confession, and appointed new counsel to argue it.  He did, and the court ultimately threw out the defendant's murder conviction.  That's right, the original appellate counsel found "frivolous" an issue which wound up getting his client's murder conviction reversed.

That's not to say that an Anders brief is never appropriate.  I've filed two.  The first was from a plea to an agreed sentence, where the client told me that the attorney "pressured" him into pleading, and didn't talk to his witnesses.  Unfortunately, he didn't mention any of that in the plea hearing. 

The second case was one in which the defendant was suspected of stealing merchandise from her employer, Sears.  The security people spotted her doing it, and chased her to her car.  She got in and sped off, hitting one of the guards with her door, before leading police cars on a chase through the parking lot, ultimately slamming into another car, injuring the driver and passenger.  That netted her charges of felonious assault on a police officer, failure to comply, aggravated vehicular assault, and theft.  The lawyer argued that her client was guilty of theft, and the rest of the charges were BS, and in the biggest case of jury nullification I can remember, the jury bought it, convicting on the theft and acquitting on everything else.  So I filed an Anders brief.  What was I going to do, argue ineffective assistance of counsel for her lawyer admitting she'd committed the theft?

But other than rare occasions, you can just about always find something to argue.  It's unlikely that if you were retained to handle on appeal, you'd call the client in after you'd read the transcript and say, "There's nothing I can do for you.  Here's your money back."  Handle an appointed appeal the same way.

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