No more Anders Briefs?
I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and made all the required findings. That leaves me with only the argument that the record clearly and convincingly demonstrates that consecutive sentences are not supported.
Good luck with that: the defendant, in three separate situations, cased out a house, waited until the mother left for work, then broke in and raped her teenage daughter.
I took an extension to sort through all this, but I've heard a rumor that the 8th District is not going to accept Anders briefs any more. Last week, the 4th District, in State v. Wilson, decided not to do that, either.
First of all, let's review what an Anders brief is. It got its name from a Supreme Court case, Anders v. California. Anders had been convicted of felony possession of marijuana, and counsel was appointed for him for appeal. That attorney sent a letter to the court stating that he would not file an appeal because it would be frivolous. Anders requested that another attorney be appointed, which was denied. He filed a pro se appeal, which -- surprise, surprise -- was unsuccessful.
Anders asked that his case be reopened, arguing that he had been denied his right to counsel. The California courts denied his request, but the Supreme Court took the case and ruled that the attorney's letter was not enough. It held that while an attorney could withdraw if he found the appeal frivolous, but had to follow certain steps in doing so. Specifically, he had to accompany the motion to withdraw with a brief outlining the potential assignments of error, even though he deemed them frivolous. The defendant had to be given a copy of the brief, and time to either file a pro se brief or obtain other counsel.
The appellate court then had to independently review the record and determine whether the appeal was truly frivolous. If it decided it was, it had to allow the attorney to withdraw, but if it found a meritorious potential assignment of error, it had to appoint a new attorney to argue it.
As Wilson points out, there are all kinds of problems with that, not the least of which is that it violates counsel's fundamental duty to represent his client: it's the appellate equivalent of a trial attorney standing up at opening statement, telling the jury, "I got nothing," and walking out. It also switches the roles of the court and counsel: counsel is tasked with determining if there's any merit to the appeal, normally the appellate panel's job, while the panel is given the chore of deciding whether there are any issues worth arguing on the defendant' behalf.
And that's hardly in keeping with judicial economy. Normally, it's the attorney's responsibility to look through the record, research the law, and formulate arguments on the client's behalf. Now that becomes the job of the appellate court.
There's no question that Anders briefs are abused. I pointed out in a post last March that in the past two years, over a quarter of the criminal appeals in Butler County have been resolved on Anders briefs. One lawyer in the 12th District, which includes Butler County, has handled forty-seven criminal appeals in the past six years. He's filed Anders briefs in fifteen of them, nearly a third. He was a piker compared to another attorney, who'd filed Anders briefs in nineteen of the thirty-seven cases she'd been assigned to handle. And in Wilson, the attorney sought to file an Anders brief in an appeal from a trial where the defendant had been convicted of aggravated murder. Really? You have a trial, and you can't come up with anything? Even manifest weight?
To be sure, there's another side to the story. The first time I filed an Anders brief, and one of the few times I have, came in a case where the defendant was an employee of Sears, back when they had stores and employees. She'd been stealing clothes from them for her daughter, and the security people were on to her. They followed her out to the parking lot one night, and she hopped in her car and took off, hitting one of the security officers with her car door as she did so. She failed to negotiate a turn, hitting another car and injuring the driver. All this led to charges of aggravated robbery, felonious assault on a peace officer, aggravated vehicular assault, and theft.
The jury convicted her of the theft, and acquitted her of everything else. I called up the lawyer, congratulated her on the job she'd done, and asked her if she thought there were any appealable issues. One, she said; she didn't think that the State had presented evidence on the value of the stolen items, and maybe it was only a misdemeanor. I checked the transcript. The State had introduced evidence that the value was felony level. So what was I going to do? Argue ineffective assistance of counsel?
And there's another lawyer I know, who routinely got assigned appeals from a particular judge. This particular judge is about as thorough as they get; a plea hearing in his room takes half an hour, and a sentencing forty-five minutes. He'd assign her for an appeal of a fifth degree felony where he'd given the defendant two years of community control sanctions. She eventually begged off on any further assignments from the judge, deciding that it wouldn't advance her career to become known as the Anders Queen.
Still, I'll come up with something for my appeal. If the court wants to say that the record supports the sentence, that's fine. It's not my job to do that.
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