Latta v. State

Robert L. Brown, Justice, dissenting. I disagree with icmajority opinion e, the sole reason that it reaches the merits of the appeal and reverses Latta’s conviction when appellant’s attorney has provided virtually no assistance to this court in the appellate process. Instead, the majority has relied on the State’s brief and its own research to reverse this case. The result of all this is that the principle of decision-making based on the adversary system has gone by the boards. I would expedite this case and require appellant’s counsel to present this court with an appropriate brief, including a discussion of recent case authority directly on point (Holmes v. State, 347 Ark. 530 , 65 S.W.3d 860 (2002)), before I reversed this case. If counsel failed to do so, I would hold him in contempt of court.

Recently, this court has taken to task attorneys who failed in their ethical duty to zealously represent their clients. In those cases, we ordered counsel to refile their opening briefs. See, e.g, Ward v. State, 347 Ark. 515 , 65 S.W.3d 451 (2002) (finding abstract flagrantly deficient and ordering counsel to rebrief the matter); Dansby v. State, 347 Ark. 509 , 65 S.W.3d 448 (2002) (finding abstract deficient and ordering counsel to refile his brief); Brady v. State, 346 Ark. 298 , 57 S.W.3d 691 (2001) (ordering rebriefing in compliance with Ark. Sup. Ct. R. 4-3(j)(l)); Dewberry v. State, 341 Ark. 170 , 15 S.W.3d 671 (2000) (ordering rebriefing in compliance with Ark. Sup. Ct. R. 4-3(j)(l)).

The Supreme Court of California has held that appellate counsel have certain obligations, which I find to be particularly relevant:

We have recently set forth in detail the obligations of appellate counsel, including the duty to prepare a legal brief containing citations to the transcript and appropriate authority, and setting forth all arguable issues, and the further duty not to argue the case against his client.

People v. Lang, 11 Cal. 3d 134, 139 , 520 P.2d 393, 396 , 113 Cal. Rptr. 9, 12 (1974) (citations omitted). It is elementary that appellate counsel should file briefs which adequately present the issues, and more importantly, cite persuasive and controlling authority for a position. See e.g., People v. Scott, 64 Cal. App. 4th 550 , 75 Cal. Rptr. 2d 315 (1998); Smith v. State, 496 So. 2d 971 (Fla. Dist. Ct. App. 1986). In addition, the Model Rules of Professional Conduct state that as an advocate, “a lawyer zealously asserts the client’s position under the rules of the adversary system.” Model Rules of Professional Conduct, Preamble: A Lawyer’s Responsibilities.

In this case, the majority has not only decided an issue which was not sufficiently presented to it, but has also relied on the State’s brief for relevant caselaw (the State, of course, advocates affirmance). The majority then performed its own research in an effort to give the appellant favorable relief. We have said time and again that we will not do research or develop argument for an appellant. See, e.g., Dixon v. State, 260 Ark. 857, 862 , 545 S.W.2d 606, 609 (1977) (stating, “In effect the court is asked to research the law and to hold in favor of the appellant if the result of our labor so demands. We must decline that invitation.”). If we were to continue on the path established today, we would have no need for attorneys to represent appellants before this court, as we would essentially be representing them ourselves. Or, as occurred in this case, we would be allowing the State to present both sides of the argument.

I believe the time has come to remand woefully deficient briefs back to counsel for rebriefing. Appellate counsel must effectively represent their clients under Sixth Amendment guarantees. See Howard v. State, 291 Ark. 633 , 727 S.W.2d 830 (1987). Providing a barebones, conclusory argument and failing to cite recent, controlling caselaw, (in this case, Holmes v. State, supra), falls far short of the standard. Indeed, appellant’s counsel did not even file a reply brief in response to the State’s brief which adduced a case directly on point.

Accordingly, appellant’s counsel, R.S. McCullough, should be made to redo his opening brief and cite this court to authority for each point raised. I would give him fifteen days to do so and expedite the appeal once the brief is resubmitted. If he still failed in his duty, I would support the issuance of a show cause order for why he should not be held in contempt of court. The alternative is to allow abysmal appellate work to continue with a mere slap on the wrist as punishment. We should not allow this to occur, especially when the client has been sentenced to life in prison.

I respectfully dissent.