Amicus Curiae Brief — Gilberto Garza, Jr., Petitioner v. Idaho

No. 17-1026

In The

Supreme Court of the United States

-------------------------- ʕ ---------------------------

GILBERTO GARZA JR.,

Petitioner,

v.

STATE OF IDAHO,

Respondent.

-------------------------- ʕ --------------------------

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF IDAHO

-------------------------- ʕ --------------------------

BRIEF OF AMICUS CURIAE

THE ETHICS BUREAU AT YALE

IN SUPPORT OF PETITIONER

-------------------------- ʕ --------------------------

Lawrence J. Fox

Counsel of Record

George W. and Sadella D. Crawford

Visiting Lecturer in Law

YALE LAW SCHOOL

127 Wall Street

New Haven, Connecticut 06511

(203) 432-9358

lawrence.fox@yale.edu

Counsel for Amicus Curiae Dated: February 22, 2018

THE LEX GROUPDC • 1050 Connecticut Avenue, NW • Suite 500, #5190 • Washington, DC

20036 (202) 955-0001 • (800) 856-4419 • www.thelexgroup.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

CONSENT TO FILE AS AMICUS CURIAE ............. 1

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I. Criminal Defendants Have a Right to

Counsel Who Will File a Notice of Appeal

on Their Behalf ................................................ 4

A. Fundamental

Principles

of

Constitutional Law, Legal Ethics,

and Agency Law Vest the Final

Decision to Appeal in the Client ................ 5

B. Counsel Are Required To File a

Notice of Appeal Even When They

Fail To Identify Any Appealable

Issues .......................................................... 8

II. This Court Should Grant Certiorari To

Preserve the Role of Courts as the Final

Arbiter of Appeals .......................................... 12

III.The Decision Below Creates Needless

Confusion and Uncertainty for Criminal

Defense Lawyers ............................................ 16

CONCLUSION ......................................................... 18

ii

TABLE OF AUTHORITIES

CASES

Anders v. California,

386 U.S. 738 (1966) .................................... passim

Blackledge v. Perry,

417 U.S. 21 (1974) .............................................. 10

C.I.R. v. Banks,

543 U.S. 426 (2005) .............................................. 7

Douglas v. California,

372 U.S. 353 (1963) ........................................ 6, 14

Evitts v. Lucey,

469 U.S. 387 (1985) ................................ 13, 14, 16

Faretta v. California

422 U.S. 806 (1975) .............................................. 7

Garza v. State,

405 P.3d 576 (Idaho 2017).................................. 17

Griffin v. Illinois,

351 U.S. 12 (1956) .............................................. 16

Holland v. Florida,

560 U.S. 631 (2010) .............................................. 6

iii

Lafler v. Cooper,

566 U.S. 156 (2012) ............................................ 16

Lane v. Brown,

372 U.S. 477 (1963) ........................................ 3, 12

Maples v. Thomas,

565 U.S. 266 (2012) .............................................. 6

McCoy v. Court of Appeals of Wisconsin, Dist. 1,

486 U.S. 429 (1988) ............................ 8, 10, 11, 14

Menna v. New York,

423 U.S. 61 (1975) .............................................. 10

Missouri v. Frye,

566 U.S. 134 (2012) ............................................ 15

Nix v. Whiteside,

475 U.S. 157 (1986) .............................................. 6

Offutt v. United States,

348 U.S. 11 (1954) .............................................. 15

Penson v. Ohio,

488 U.S. 75 (1988) ........................................ 10, 14

Rodriquez v. United States,

395 U.S. 327 (1969) .......................................... 3, 5

iv

Roe v. Flores-Ortega,

528 U.S. 470 (2000) ................................ 4, 5, 8, 10

Smith v. Robbins,

528 U.S. 259 (2000) ............................................ 11

Suggs v. United States,

391 F.2d 971 (D.C. Cir. 1968) ............................ 13

United States v. Marin,

961 F.2d 493 (4th Cir. 1992) ......................... 10-11

United States v. Sandoval-Lopez,

409 F.3d 1193 (9th Cir. 2005) ............................ 17

Wheat v. United States,

486 U.S. 153 (1988) ............................................ 15

CONSTITUTIONAL PROVISION

U.S. Const. amend. VI ...................................... passim

RULES

Model Rules of Prof’l Conduct pmbl.

(Am. Bar Ass’n 1983).......................................... 13

Model Rules of Prof’l Conduct r. 1.2(a)

(Am. Bar Ass’n 1983)............................................ 8

v

Model Rules of Prof’l Conduct r. 1.7 cmt. 1

(Am. Bar Ass’n 1983).......................................... 13

Model Rules of Prof’l Conduct r. 3.1

(Am. Bar Ass’n 1983)............................................ 9

OTHER AUTHORITIES

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

4-5.2(a)(v) (3d ed. 1993) ......................................... 7

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

4-8.2 cmt (3d ed. 1993) .................................... 6, 11

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

4-8.2(a) (3d ed. 1993) ............................................. 6

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

4-8.2(b) (3d ed. 1993) ............................................. 7

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

4-8.3 cmt. (3d ed. 1993) ................................... 6, 15

vi

ABA Standards for Criminal Justice Prosecution

Function and Defense Function Standard

4-8.3(c) (3d ed. 1993) ........................................... 10

Editorial, Trial Judge to Appeals Court: Review Me,

N.Y. Times (July 16, 2012),

http://www.nytimes.com/2012/07/17/opinion/trialjudge-to-appeals-court-review-me.html.............. 16

Jacob Szewczyk, Comment, Following Orders:

Campbell v. United States, The Waiver of

Appellate Rights, and the Duty of Counsel,

64 Cath. U. L. Rev. 489 (2015) ............................ 14

Joel Cohen, When Lawyers Admit “Ineffectiveness,”

N.Y. L.J. (Apr. 13, 2010),

https://www.stroock.com/siteFiles/Pub918.pdf .. 17

Lauren Gregorcyk, Note, A Justified Obligation:

Counsel’s Duty to File a Requested Appeal in a

Post-Waiver Situation, 20 Wash. &

Lee J. Civil Rts. & Soc. Just. 141 (2013) ............ 17

Model Code of Judicial Conduct Canon 1

(Am. Bar Ass’n 1990).......................................... 15

Model Code of Judicial Conduct r. 2.2

(Am. Bar Ass’n 1990).......................................... 13

Model Code of Judicial Conduct r. 2.5(A)

(Am. Bar Ass’n 1990).......................................... 14

vii

Model Code of Judicial Conduct r. 2.5-2.7

(Am. Bar Ass’n 1990).......................................... 12

Nancy J. King & Michael E. O’Neill, Appeal Waivers

and the Future of Sentencing Policy,

55 Duke L.J. 209 (2005) ...................................... 12

Restatement (Third) of Agency § 8.09(2)

(Am. Law Inst. 2006) ............................................ 7

Restatement (Third) of the Law Governing Lawyers

§ 110 cmt. f (Am. Law Inst. 2000) ......................... 9

Restatement (Third) of the Law Governing Lawyers

§ 110(1) (Am. Law Inst. 2000) ............................... 9

Restatement (Third) of the Law Governing Lawyers

§ 21 (Am. Law Inst. 2000) ..................................... 8

Restatement (Third) of the Law Governing Lawyers

§ 22(1) (Am. Law Inst. 2000) ................................. 7

Robert E. Scott & William J. Stuntz, Symposium:

Punishment, Plea Bargaining as Contract,

101 Yale L.J. 1909 (1992) .................................... 15

1

CONSENT TO FILE AS AMICUS CURIAE

Pursuant to Rule 37, this brief is filed with the

consent of the parties. The brief is submitted by the

Ethics Bureau at Yale in support of Petitioner.

Letters of consent from both parties to this appeal

have been lodged with the Clerk of the Court. No

counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary

contribution intended to fund the preparation or

submission of this brief.

INTEREST OF AMICUS CURIAE

The Ethics Bureau at Yale1 is a clinic composed

of sixteen law school students supervised by an

experienced practicing lawyer, lecturer, and ethics

teacher. The Bureau has drafted amicus briefs in

matters involving lawyer and judicial conduct and

ethics; has assisted defense counsel with ineffective

assistance of counsel claims implicating issues of

professional responsibility; and has provided

assistance, counsel and guidance on a pro bono basis

to not-for-profit legal service providers, courts, and

law schools.

Because this case implicates a lawyer’s ethical

obligations to obey his client’s objectives during the

course of the representation, the Bureau believes it

1 The Ethics Bureau at Yale is a student clinic of the Yale Law

School. The views expressed herein are not necessarily those of

Yale University or Yale Law School. This brief was not written

in whole or in part by counsel for any party, and no person or

entity other than Amicus Curiae has made a monetary

contribution to the preparation and submission of this brief.

2

might assist the Court in resolving the important

issues presented.

SUMMARY OF ARGUMENT

This case implicates an important question

that has divided lower courts for over a decade:

whether when a defendant asks his lawyer to file an

appeal and the lawyer fails to do so because the

defendant signed an appeal waiver as part of a plea

agreement, a court should presume that the

defendant was prejudiced by his counsel’s conduct.

The majority of lower courts to address the question

have presumed prejudice when evaluating ineffective

assistance of counsel claims in this context. The court

below, however, did not. Because this Court’s Sixth

Amendment jurisprudence, as well as legal ethics and

agency law, make clear that the client retains final

control over the decision to appeal, Amicus believes

that the decision below was wrongly decided and that

courts should presume prejudice in these cases.

The facts of this case are straightforward and

undisputed. In 2015, Gilberto Garza, Jr. pled guilty

separately to aggravated assault and possession of

controlled substance. Both plea agreements included

an appeal waiver. Mr. Garza subsequently told his

lawyer that he wanted to appeal his sentence. But,

despite this instruction, his lawyer did not file an

appeal because he concluded that “Mr. Garza [had]

received the sentence(s) he bargained for” and that

“an appeal was problematic because [Mr. Garza]

waived his right to appeal.” Pet. App. 52a. Mr. Garza

filed a pro se petition for post-conviction relief

alleging that his counsel rendered ineffective

3

assistance of counsel by refusing to file to a notice of

appeal at his request. The Supreme Court of Idaho

affirmed the District Court’s and Court of Appeals’

denial of relief.

The Constitution, the ethical code of the Idaho

Supreme Court, and the common law vest the decision

to file an appeal in the client. This rule reflects the

fundamental precept that the client, not the lawyer,

has the final say over the objectives of a

representation. This Court has already concluded

that courts should presume prejudice when a lawyer

fails to file a notice of appeal at the request of his

client. See Rodriquez v. United States, 395 U.S. 327

(1969). That presumption applies no less in cases in

which a lawyer believes that an appeal would be

frivolous. The Constitution and basic tenets of legal

ethics and agency law protect a defendant’s right to

file an appeal that non-judicial actors deem frivolous.

See Anders v. California, 386 U.S. 738, 744 (1967).

And because appellate waivers bar only a subset of

potential appeals, it is essential that a court review

the merits of a claim.

This case also represents an assault on the

fundamental role of courts and defense lawyers in our

criminal justice system. The decision below would

usurp from courts the ability to conduct an

independent review of the merits of an appeal,

upending the traditional division of authority in the

courtroom—where lawyers serve as advocates and

judges as final arbiters. In effect, it “confers upon

[actors] outside the judicial system power to take from

an indigent all hope of any appeal at all.” Lane v.

Brown, 372 U.S. 477, 485 (1963). Furthermore, the

4

current disagreement among lower courts regarding

the proper division of authority in this context has left

defense lawyers deeply confused as to their

responsibility under the Sixth Amendment to file

appeals that plea agreements appear to bar.

In light of these considerations, Amicus urges

this Court to grant certiorari and reverse the

judgment of the court below.

ARGUMENT

I.

Criminal Defendants Have a Right to

Counsel Who Will File a Notice of

Appeal on Their Behalf.

The client, not the lawyer, has the authority to

decide whether to appeal a case. This Court has held

that, under the Sixth Amendment, it is ineffective

assistance of counsel for a lawyer to refuse to file a

requested appeal. See Roe v. Flores-Ortega, 528 U.S.

470, 476-77 (2000). Principles of legal ethics and

agency law likewise specify that the decision to appeal

is under the client’s sole control. These authorities

make clear that the client retains control over the

decision to appeal even when counsel believes that the

appeal might be frivolous. In reliance on this wellestablished understanding of the attorney-client

relationship, defendants entrust their lawyers to

carry out their instructions. Thus, when a lawyer fails

to file a requested appeal, the lawyer violates the

Constitution and fundamental principles of legal

ethics and agency law.

5

A. Fundamental Principles of Constitutional Law,

Legal Ethics, and Agency Law Vest the Final

Decision to Appeal in the Client.

The defendant’s right to appeal is central to the

protections provided by the Sixth Amendment. This

Court has held that the Sixth Amendment guarantees

defendants effective assistance of counsel, and that a

lawyer who ignores his client’s instructions to file an

appeal is presumed to have rendered ineffective

assistance. See Flores-Ortega, 528 U.S. at 477. This

clear delineation of authority is critical because a

lawyer who fails to file a requested appeal does not

merely neglect his professional duty, but also deals

his client “the serious denial of the entire judicial

proceeding itself.” Id. at 483. Indeed, this Court has

gone even farther, ruling that counsel must not only

perform the simple task of filing a notice of appeal,

but must also “act[] in the role of an active advocate

in behalf of his client,” a role which “requires that he

support his client’s appeal to the best of his ability.”

Anders v. California, 386 U.S. at 744. As a

consequence, a defendant whose lawyer fails to file a

requested appeal is entitled to a new appeal without

demonstrating that it would likely have been

successful. See Rodriquez, 395 U.S. at 330.

The defendant’s right to decide whether to

appeal his case is a vital procedural protection. Most

significantly, ignoring a client’s express decision to

appeal is “professionally unreasonable . . . because a

defendant who instructs counsel to initiate an appeal

reasonably relies upon counsel to file the necessary

notice.” Flores-Ortega, 528 U.S. at 477. Defendants

whose lawyers ignore their instructions are often left

6

to file “petitions for relief from time limitations on

filing appeals or . . . postconviction collateral attacks

on the ground of inadequate representation.” ABA

Standards for Criminal Justice Prosecution Function

and Defense Function Standard 4-8.3 cmt. (3d ed.

1993). Moreover, many of these defendants, like Mr.

Garza, will be forced to make these claims pro se. As

this Court wrote when it recognized the right to

counsel for a first appeal, “[w]hen an indigent is forced

to run this gantlet of a preliminary showing of merit,

the right to appeal does not comport with fair

procedure.” Douglas v. California, 372 U.S. 353, 357

(1963). Defendants rely on counsel to pursue their

objectives. To allow lawyers to do otherwise would

undermine the sanctity of the attorney-client

relationship and defendants’ Sixth Amendment

rights.

Principles of legal ethics and agency law

likewise prescribe that, throughout the course of a

representation, clients retain control over final

decisions and, specifically, the decision to appeal.2

The American Bar Association, for example, has made

clear that “[t]he decision whether to appeal must be

the defendant’s own choice.” ABA Standards for

Criminal Justice Prosecution Function and Defense

Function Standard 4-8.2(a) (3d ed. 1993); see also id.

2 This Court has previously looked to national ethical standards

in construing constitutional requirements. See, e.g., Nix v.

Whiteside, 475 U.S. 157, 167 (1986) (citing to common

understandings of professional ethics in construing lawyers’

Sixth Amendment duties when a client plans to present perjured

testimony at trial). Principles of agency law have often been used

to illuminate a lawyer’s duties in the course of representation.

See Maples v. Thomas, 565 U.S. 266, 283 (2012); Holland v.

Florida, 560 U.S. 631, 659-60 (2010) (Alito, J., concurring).

7

4-8.2(b) (“Defense counsel should take whatever steps

are necessary to protect the defendant’s rights of

appeal.”); id. 4-5.2(a)(v) (noting that “[c]ertain

decisions relating to the conduct of the case are

ultimately for the accused and others are ultimately

for defense counsel,” and providing that the decisions

to be made by defendants include “whether to

appeal”). The Restatement of Law Governing

Lawyers likewise states that the decision to appeal a

criminal prosecution is reserved to the client. See

Restatement (Third) of the Law Governing Lawyers §

22(1) (Am. Law Inst. 2000).

This assignment of authority reflects broader

principles of agency law and legal ethics which give

the client control over final decisions. It is wellestablished under the common law that lawyers are

their clients’ agents. See C.I.R. v. Banks, 543 U.S. 426,

436

(2005)

(describing

the

attorney-client

relationship as “a quintessential principal-agent

relationship”). A lawyer remains at all times bound to

respect his client’s fundamental wishes regarding the

objectives of the representation. See Restatement

(Third) of Agency § 8.09(2) (Am. Law Inst. 2006) (“An

agent has a duty to comply with all lawful

instructions received from the principal . . . .”); see also

Faretta v. California, 422 U.S. 806, 820 (1975) (“[The

Sixth Amendment] speaks of the ‘assistance’ of

counsel, and an assistant, however expert, is still an

assistant.”). The Restatement of Law Governing

Lawyers and the Model Rules of Professional

Conduct3 likewise assign the authority to define the

objectives of the representation to the client. See

3 The Idaho Rules of Professional Conduct follow the Model Rules

in all relevant respects.

8

Restatement (Third) of the Law Governing Lawyers §

21; Model Rules of Prof’l Conduct r. 1.2(a) (Am. Bar

Ass’n 1983). In keeping with these broader principles,

the law assigns the decision whether to appeal—an

objective of the representation—to the client.

In this case, Mr. Garza clearly conveyed that

he wanted to appeal his case, and his lawyer violated

the Sixth Amendment as well as principles of legal

ethics and agency law when his lawyer disregarded

that direction. Mr. Garza’s lawyer acknowledged that

Mr. Garza instructed him to file an appeal in his

affidavit in the District Court. See Pet. App. 52a. Once

Mr. Garza established as one of his objectives to

appeal, his lawyer should not have deviated from that

objective. Defense counsel’s failure to carry out his

professional obligations forced Mr. Garza to petition,

initially pro se, to regain his right to appeal—a right

that his lawyer had given up against his wishes. A

lawyer who puts his client in such a position has acted

in a way that is “professionally unreasonable.” FloresOrtega, 528 U.S. at 477.

B. Counsel Are Required To File a Notice of

Appeal Even When They Fail To Identify Any

Appealable Issues.

This Court has recognized a tension between

the constitutional right of defendants to have an

active advocate on appeal and the professional

obligation of counsel not to file frivolous appeals. See

McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486

U.S. 429, 437 (1988). But in reconciling this tension,

this Court has not wavered from the principle that

defendants have a right to file an appeal and to the

9

effective assistance of counsel in doing so. Instead, it

has addressed the problem of frivolous appeals by

recommending that lawyers follow the procedure

described in Anders v. California. That is, when a

client asks his lawyer to file an arguably frivolous

appeal, the lawyer should file a notice of appeal,

submit “a brief referring to anything in the record

that might arguably support the appeal,” and request

permission to withdraw. Anders, 386 U.S. at 744. This

procedure, requiring lawyers to file “Anders briefs,”

allows defense counsel to act “with honor and without

conflict,” id., but even more importantly, it preserves

defendants’ right to appeal.

Principles of legal ethics strike a similar

balance between defendants’ constitutional right to

counsel and lawyers’ professional obligation not to file

frivolous appeals. As a general rule, counsel may not

file frivolous arguments. See Model Rules of Prof’l

Conduct r. 3.1; Restatement (Third) of the Law

Governing Lawyers § 110(1). But lawyers’

professional obligations “are subordinate to federal or

state constitutional law that entitles a defendant in a

criminal matter to the assistance of counsel in

presenting a claim that otherwise would be

prohibited.” Model Rules of Prof’l Conduct r. 3.1; see

also Restatement (Third) of the Law Governing

Lawyers § 110 cmt. f (“[A] lawyer representing a

convicted person on appeal may be required to file a

so-called Anders brief in the event the lawyer

concludes that there is no nonfrivolous ground on

which the appeal can be maintained.”). The ethical

rules governing lawyers’ conduct likewise draw an

important distinction between assisting a client on

appeal—which is constitutionally required—and

10

actively deceiving the court or opposing parties—

which is prohibited. See ABA Standards for Criminal

Justice Prosecution Function and Defense Function

Standard 4-8.3(c).

Requiring lawyers to abide by their clients’

wishes and file an appeal serves a number of vital

interests. Most importantly, these procedures

preserve defendants’ right to appeal. As this Court

has noted, “a defendant who instructs counsel to

initiate an appeal reasonably relies upon counsel to

file the necessary notice.” Flores-Ortega, 528 U.S. at

477. Without a rule ensuring that counsel file such a

notice, a defendant may lose his right to any form of

appellate review.

These procedures also improve the process by

which appeals go forward. Anders briefs, for example,

“‘provide the appellate courts with a basis for

determining whether appointed counsel have fully

performed their duty to support their clients’ appeal

to the best of their ability’” and also “provide[] an

independent inducement to counsel to perform a

diligent review” of the case. Penson v. Ohio, 488 U.S.

75, 81, 82 & n.4 (1988) (quoting McCoy, 486 U.S. at

439). This review by both counsel and the court is

essential even in the appeal waiver context because a

valid waiver does not automatically preclude a

defendant from challenging the sentence or

conviction, for example, when the appeal goes “to the

very power of the State to bring the defendant into

court to answer the charge brought against him.”

Blackledge v. Perry, 417 U.S. 21, 30 (1974) (vindictive

prosecution); see Menna v. New York, 423 U.S. 62

(1975) (double jeopardy); see also United States v.

11

Marin, 961 F.2d 493, 496 (4th Cir. 1992) (use of a

“constitutionally impermissible factor such as race” at

sentencing). It is also important to note that the

timing for filing a notice of appeal is often extremely

short, which suggests that lawyers should not

foreclose the possibility of a meritous appeal at this

stage. Cursory review does not satisfy a defendant’s

right to effective counsel and may lead to additional

postconviction collateral claims. See ABA Standards

for Criminal Justice Prosecution Function and

Defense Function Standard 4-8.2 cmt.

This case implicates a particularly stark set of

facts. Here, Mr. Garza’s lawyer not only offered a

“conclusory statement that the appeal was meritless,”

McCoy, 486 U.S. at 443, but also never presented this

conclusory statement to a court for further review. See

Smith v. Robbins, 528 U.S. 259, 281 (2000) (noting

that a “flaw with the procedures” in past cases “was

that there was only one tier of review”). Instead,

defense counsel simply concluded that “Mr. Garza

received the sentence(s) he bargained for” and told

Mr. Garza “that the appeal was problematic because

he waived his right to appeal” in his plea agreement.

Pet. App. at 52a.

The conclusory statement by Mr. Garza’s

lawyer does not satisfy the Sixth Amendment right to

counsel. Instead, it is unclear whether Mr. Garza’s

lawyer “diligently investigated the possible grounds

of appeal.” Anders, 386 U.S. at 742. And even if he had

conducted a more diligent investigation, Mr. Garza’s

lawyer would still not have had the unilateral

authority to waive his client’s right to appeal. As the

preceding Section made clear, the Constitution and

12

rules of legal ethics vest the final decision to appeal in

the defendant. Any decision that vests the authority

in the lawyers can “not meet constitutional

standards.” Lane, 372 U.S. at 485.

II.

This Court Should Grant Certiorari To

Preserve the Role of Courts as the

Final Arbiter of Appeals.

Whether an appeal raises any non-frivolous

issues is a decision for the appellate court—not

defense counsel—to make. When a lawyer fails to file

a requested appeal, that disobedience not only

undermines the client’s right to decide whether to

appeal, but also usurps the authority of the court to

decide the merits of the appeal. Direct appellate

review is entirely eliminated. Thus, in addition to

safeguarding the fundamental rights of criminal

defendants, the procedures set forth in Anders protect

important judicial interests.

First, effective defense counsel must be

required to file a notice of appeal so that appellate

courts retain their role as neutral decision makers.

The ethical rules governing the conduct of legal actors

divide authority between counsel and courts, and

ultimately courts are supposed to decide whether

appeals are meritorious. See Model Code of Judicial

Conduct r. 2.5-2.7 (Am. Bar Ass’n 1990); Nancy J.

King & Michael E. O’Neill, Appeal Waivers and the

Future of Sentencing Policy, 55 Duke L.J. 209, 223

(2005). In Anders, this Court stated that counsel must

“support his client’s appeal to the best of his ability,”

and then the court must conduct “a full examination

of all the proceedings, to decide whether the case is

13

wholly frivolous.” Anders, 386 U.S. at 744. This proper

division of labor in the courtroom helps to advance the

ethical duties of both judges and lawyers.

One of defense counsel’s most critical roles is

that of an advocate. Accordingly, lawyers not only

lack the authority to determine if an appeal should be

granted, but would violate the duty of loyalty owed to

their clients by exercising such authority. The Model

Rules of Professional Conduct provide that, as

advocates, lawyers must “zealously assert[] the

client’s position under the rules of the adversary

system.” Model Rules of Prof’l Conduct pmbl.; see also

Model Rules of Prof’l Conduct r. 1.7 cmt. 1 (“Loyalty

and independent judgment are essential elements in

the lawyer’s relationship to a client.”). As this Court

has held, while an effective “attorney need not

advance every argument, regardless of merit, urged

by the appellant,” counsel “must play the role of an

active advocate, rather than a mere friend of the court

assisting in a detached evaluation of the appellant’s

claim.” Evitts v. Lucey, 469 U.S. 387, 394 (1985).

The judge, rather than defense counsel, is

charged with providing this “detached evaluation.” It

is the unique role of judges to decide the merits of the

cases that come before them. See Model Code of

Judicial Conduct r. 2.2 (“A judge shall uphold and

apply the law, and shall perform all duties of judicial

office fairly and impartially.”). The most fundamental

“role [of] a court is as arbiter of the interests of

Government and accused.” Suggs v. United States,

391 F.2d 971, 975 (D.C. Cir. 1968). Thus, Anders was

meant to ensure that appellate judges “successfully

and constitutionally perform that function” by

14

“consider[ing] a presentation devoted to arguments

for the accused, leaving it to [the court] to determine

whether and to what extent they have merit.” Id. In

this case, however, when Mr. Garza’s lawyer failed to

file a notice of appeal, he unilaterally appointed

himself to preside over his own client’s appeal—and

then proceeded to do so in direct contravention of Mr.

Garza’s interests. See Jacob Szewczyk, Comment,

Following Orders: Campbell v. United States, The

Waiver of Appellate Rights, and the Duty of Counsel,

64 Cath. U. L. Rev. 489, 512 (2015).

Anders briefs, moreover, ensure that courts

carry out their role competently by directing

reviewing judges to those parts of the record that

might arguably support the appeal. See McCoy, 486

U.S. at 442; Model Code of Judicial Conduct r. 2.5(A)

(obligating judges to perform their duties

“competently and diligently”). In Anders, this Court

established a procedure that would allow defense

counsel to ethically provide adequate “assistance to

his client and to the court.” Anders, 386 U.S. at 744

(emphasis added). Without the effective assistance of

counsel, an appeal might devolve into a “meaningless

ritual,” since, for virtually any layperson, “the

services of a lawyer will . . . be necessary to present

an appeal in a form suitable for appellate

consideration on the merits.” Evitts, 469 U.S. at 39394 (quoting Douglas, 372 U.S. at 358). Anders briefs,

therefore, serve the “valuable purpose of assisting the

court” in competently determining both whether

“counsel in fact conducted the required detailed

review of the case” and whether “the appeal is indeed

so frivolous that it may be decided without an

adversary presentation.” Penson, 488 U.S. at 81-82

15

(1988); see also Anders, 386 U.S. at 745. Cf. ABA

Standards for Criminal Justice Prosecution Function

and Defense Function Standard 4-8.3 cmt. (noting

that it “is also in the public interest” to expeditiously

obtain complete and final determinations of all cases).

Lastly, without a notice of appeal, judges may

not reliably fulfill their duty to protect the legitimacy

of the legal system. The First Canon of the Model

Code of Judicial Conduct states that judges, as the

final arbiters of every case over which they preside,

“shall uphold and promote the independence,

integrity, and impartiality of the judiciary, and shall

avoid impropriety and the appearance of

impropriety.” Model Code of Judicial Conduct Canon

1. The proper division of responsibility between

judges and lawyers on appeal is one way for courts to

protect their “independent interest in ensuring that

criminal trials are conducted within the ethical

standards of the profession and that legal proceedings

appear fair to all who observe them.” Wheat v. United

States, 486 U.S. 153, 160 (1988); see also Offutt v.

United States, 348 U.S. 11, 14 (1954) (“Justice must

not only be done, it must appear to be done.”).

Moreover, this judicial duty is especially important in

the plea bargaining context. For, today, plea

bargaining “is not some adjunct to the criminal justice

system; it is the criminal justice system.” Missouri v.

Frye, 566 U.S. 134, 144 (2012) (quoting Robert E.

Scott & William J. Stuntz, Symposium: Punishment,

Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912

(1992)).

When lawyers fail to file notices of appeal,

courts simply cannot guarantee defendants an

16

“adequate and effective” appeal. Griffin v. Illinois,

351 U.S. 12, 20 (1956). Appellate judges are rendered

powerless, incapable of guarding against the

accidental waiver of viable claims by defense lawyers.

As a result, the very purpose of systems of appeal as

of right—to “assure that only those who are validly

convicted have their freedom drastically curtailed”—

are dangerously undercut. Evitts, 469 U.S. at 400.

The judiciary has a duty to protect every individual

defendant’s fundamental rights and, in turn, to

uphold the integrity of the legal system writ large.

III.

The Decision Below Creates Needless

Confusion

and

Uncertainty

for

Criminal Defense Lawyers.

The decision below reflects a longstanding split

of authority regarding a criminal defense lawyer’s

duty to file an appeal in the post-waiver context.

Criminal defense lawyers remain unsure of their legal

and ethical duties when faced with plea bargains that

include appellate waivers. Moreover, this issue comes

up frequently, due in part to the pervasiveness of plea

bargaining. The overwhelming majority of criminal

cases are resolved through plea bargaining

negotiations. See Lafler v. Cooper, 566 U.S. 156, 170

(2012) (“[C]riminal justice today is for the most part a

system of pleas, not a system of trials.”).

The prevalence of plea bargaining only

amplifies the need for clarification in this case. See

Editorial, Trial Judge to Appeals Court: Review Me,

N.Y.

Times

(July

16,

2012),

http://www.nytimes.com/2012/07/17/opinion/trialjudge-to-appeals-court-review-me.html. Since the

17

Sentencing Reform Act of 1984, appellate waivers

have only increased in popularity with judges and

prosecutors’ offices around the country. See Lauren

Gregorcyk, Note, A Justified Obligation: Counsel’s

Duty to File a Requested Appeal in a Post-Waiver

Situation, 20 Wash. & Lee J. Civil Rts. & Soc. Just.

141, 147-148 (2013).

The current disagreement among lower courts

has fostered significant uncertainty for criminal

defense lawyers. The decision below only adds to the

confusion. Lawyers need to know not only whether

filing a notice of appeal in this context is frivolous, but

also whether it is constitutionally required. Asking

criminal defense lawyers to sift through inconsistent

or contradictory standards notably jeopardizes the

ability of defense lawyers to perform as competent

counsel. Indeed, the current split of authority has

resulted in an anomalous state of affairs in which

lawyers in some states—such as in Idaho—may be

subject to one constitutional standard in state court

and another in federal court. Compare Garza v. State,

405 P.3d 576 (Idaho 2017), with United States v.

Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005).

In addition, criminal defense lawyers have a

personal interest in understanding the law regarding

ineffective assistance of counsel because being found

“ineffective” directly affects their professional

standing. See Joel Cohen, When Lawyers Admit

“Ineffectiveness,”

N.Y.L.J.

(Apr.

13,

2010),

https://www.stroock.com/siteFiles/Pub918.pdf

(“There is nothing worse for a criminal lawyer than

personal guilt for having waged an inadequate

defense that results in a miscarriage of justice for his

18

client.”). In deciding to file an appeal in the postwaiver context, criminal defense lawyers might worry

that they must choose whether to pursue their clients’

interests or to follow a more convenient or

professionally beneficial course. In short, the current

split of authority leaves criminal defense lawyers in

the dark as to whether their decision to file an appeal

from a plea agreement containing an appeal waiver

might amount to ineffective assistance of counsel.

This Court should therefore grant certiorari and

clarify the obligations of criminal defense lawyers in

this recurrent situation.

CONCLUSION

Criminal

defense

lawyers

should

be

constitutionally required to file an appeal where

directed to do so by their client, even if their client

signed a plea agreement containing an appeal waiver.

To hold otherwise would undermine the right to

effective assistance of counsel under the Sixth

Amendment, fundamental requirements of ethics and

agency law, and the traditional division of authority

between defense lawyers and courts in the criminal

justice system. Further, defense counsel should know

the scope of their duty to file an appeal so that they

are able to both protect their clients’ constitutional

rights and avoid compromising their professional

standing. Defendants, not their counsel, should have

the ultimate authority to choose to appeal. For these

reasons, Amicus urges this Court to grant certiorari

and reverse the judgment below.

19

Respectfully Submitted,

/s/ Lawrence J. Fox

Lawrence J. Fox

Counsel of Record

George W. and Sadella D. Crawford

Visiting Lecturer in Law

Yale Law School

127 Wall Street

New Haven, CT 06511

(203) 432-9358

lawrence.fox@yale.edu

Counsel for Amicus Curiae