Amicus Curiae Brief — Penson v. Ohio

No. 87-6116 im

IN THI JO HE er,

Supreme Court of the United States————__

OCTOBER TERM, 1987

>

STEVEN ANTHONY PENSON,

Petitioner.

--V\ —

STATE OF OHIO,

Respondent.

COON WRIT OF CER THI 4ARI te: Tilt

Cth RI OF APPEALS FOR MIPNTCAIMERY CONT Y, OFM)

BRIEF AWICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, THE CIVIL LIBERTIES UNION

OF OHIO, AND THE NATIONAL LEGAL AID AND

DEFENDER ASSOCTATION IN SUPPORT OF PETITIONER

LARRY W. YACKLE

(Counsel of Record)

Boston University

School of Law

768 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-2826

KIM ROBERT FAWCETT JOHN A. POWEL!

National Legal Aid and STEVEN R. SHAPIRO

Defender Association American Civil Liberties

1625 K Street, N.W. Union Foundation

Washington, D.C. 20006 132 West 43 Street

(202) 452-0620 New York, New York 10036

(212) 944-9800

QUESTION PRESENTED

Whether a state appellate court commits

reversible constitutional error if it fails to

provide an indigent criminal appellant with a

professional advocate to press claims that are

acknowledged to be nonfrivolous.

TABLE OF AUTHORITIES....---- socccccccesese

I. THE OHIO COURTS' FAILURE

TO PROVIDE THE PETITIONER WITH A

PROFESSIONAL ADVOCATE TO PRESS

NONFRIVOLOUS CLAIMS ON FIRST APPEAL

AS OF RIGHT VIOLATED THE DUE PROCESS

AND EQUAL PROTECTION CLAUSES OF THE

FOURTEENTH AMENDMENT AS INTERPRETED

IN THIS COURT'S PRECEDENTS....-.- wYTTTTii i

II. THIS COURT'S PRECEDENTS

STRIKE THE PROPER BALANCE BETWEEN

APPOINTED COUNSEL'S CONSTITUTIONAL

OBLIGATIONS TO THE CLIENT AND COUNSEL'S

PROFESSIONAL RESPONSIBILITIES TO THE

, PPPPPPrTTT TTT,

A. What Anders Does (And Does

Not) Require of Counsel and

the Court.....--+++++-. WPT TTTLIC Li

B. Anders’ Theoretical

Foundations. ...--++eeeeeeeeeeees seeed

ii

10

10

19

23

III. CRIMINAL APPELLANTS WHO

SUFFER THE KIND OF CONSTITUTIONAL

VIOLATION EVIDENT IN THIS CASE ARE

ENTITLED TO REVERSAL WITHOUT A

SPECIAL SHOWING OF “PREJUDICE"™.......++e-: 35

CONCLUSION

iii

TABLE OF AUTHORITIES

Cases Pages

” ; La. |

386 U.S. 738 (1967) .-- eee eee neeees Passim

Vv ’

446 U.S. 335 (1980)... eee ee eeeeess 37

- ‘ Le. |

372 U.S. 353 (1963) .cccccscccccees Passim

vi Vv ’

469 U.S. 387 (1985) .--e eee eee eeces Passim

v. Wai .

372 U.S. 335 (1963) ..ccccccccceces 37

Vv ’

463 U.S. 745 (1983) .c eee eee eecees 30

McCoy v. Wisconsin Court of Appeals,

NO. 87-5002... cece eee eee ereereeeee 4

j ,

384 U.S. 436 (1966)... cece ee eeeves 23

Finley ’

107 S.Ct. 1990 (1987)... eee eeeees 4

v. _W j ;

466 U.S. 668 (1984) 2... eee eee enveess 36, 37

United’ States v. Wade,

3B8B U.S. 218 (1967... eee eee enerness 24

iv

INTEREST OF THE AMICI CURIAE

The American Civil Liberties Union is a

nationwide, nonpartisan organization of more

than 250,000 persons, dedicated to preserving

and protecting the civil rights and civil

liberties guaranteed by law. The ACLU of Ohio

is one of its affiliates.

The National Legal Aid and Defender

Association is a private, non-profit, national

membership organization headquartered in

Washington, D.C., whose purpose is to ensure

the availability of quality legal services in

civil and criminal cases to all persons unable

to retain counsel. Specifically, the NLADA

represents approximately 1,753 programs

engaged in providing representation to

indigents arrested on or convicted of criminal

charges. The membership of NLADA, therefore,

comprises most public defender offices and

legal services agencies around the nation.

Both the ACLU and the NLADA have long

worked to protect the rights of criminal

defendants and have filed many briefs, as

counsel for a litigant or as amicus curiae, in

criminal cases requiring the interpretation of

federal constitutional provisions.

With the consent of the parties,

indicated by letters lodged with the Clerk of

this Court, we file this brief amici curiae in

support of the petitioner.

vil

STATEMENT OF THE CASE

The procedural history of this case is

described in the opinion of the Ohio Court of

Appeals. The petitioner, Steven Anthony

Penson, and two co-defendants, Richard Brooks

and John Albert Smith, Jr., were tried jointly

on multiple charges. All three men were

convicted on at least some counts and were

sentenced to prison terms. Because all three

were indigent, separate counsel was appointed

for each to press appeals as of right to the

Ohio Court of Appeals.

Counsel for Brooks and Smith filed briefs

on behalf of their clients. By contrast, the

attorney assigned to represent Mr. Penson

moved to withdraw on the basis of a conclusory

statement that he had "carefully reviewed" the

record and had found "no errors requiring

reversal, modification and/or vacation" of

Penson's convictions or sentences. Petition

for Writ of Certiorari at A9 (emphasis

supplied).

The court of appeals granted counsel's

motion to withdraw, but rejected Penson's

request that another lawyer be appointed to

pursue the appeal. Penson was given time in

which to file a brief pro se, but he was

unable to do so. The court of appeals then

decided the issues on appeal aided only by the

briefs filed on behalf of the co-defendants.

The court of appeals identified "several

arguable claims" available to Penson and,

indeed, concluded that one such claim was

meritorious. Finding the evidence

insufficient to support a jury instruction

regarding one count of assault, the court

reversed Penson's conviction on that count and

vacated the relevant sentence. Penson's other

convictions, together with the sentences

attached to them, were sustained summarily.

The court of appeals was "troubled" that

Penson's appointed attorney failed to

recognize any arguable claims and frankly

found counsel's position to be "highly

questionable." Petition for Writ of

Certiorari at A5-6. Nevertheless, the court

considered the appeal without benefit of an

advocate for Mr. Penson. Resting on its own

review of the file and on the co-defendants'

briefs, the court concluded that Penson had

“suffered no prejudice" flowing from his

attorney's failure to give the record a "more

conscientious examination." Id. at A6.

Represented by a different attorney, Mr.

Penson challenged the court of appeals'

disposition of his right to counsel in an

appeal to the Ohio Supreme Court. That court

dismissed for want of a "substantial"

question, and this Court granted Penson's

subsequent petition for a writ of certiorari.

SUMMARY OF ARGUMENT

This is one in a series of recent cases

in which the Court has the opportunity to

elaborate upon the states' constitutional

responsibility to provide effective advocates

to indigent criminal appellants. This case,

however, presents no novel questions. Rather,

it presents an enforcement problem created by

the failure of Ohio's appellate courts to

conform their practices to this Court's well-

established rulings, both in this instance and

1 £.g., Evitts v. Lucey, 469 U.S. 387

(1985) (recognizing that criminal appellants

have a fourteenth amendment right to the

effective assistance of counsel); Pennsylvania

v. Finley, 107 S.Ct. 1990 (1987) (reaffirming

the right to effective assistance of counsel

on appeal but treating post-appeal state

proceedings differently); McCoy v. Wisconsin

Court of Appeals, No. 87-5002 (involving a

Wisconsin rule requiring appellate counsel who

wish to withdraw to discuss why they believe

their clients' claims to be frivolous). The

ACLU and the NLADA filed independent amicus

briefs in Finley and joined in a brief in

McCoy. Those briefs may be read in

conjunction with this one.

4

in many other instances identified by Mr.

Penson's current attorney.

The Ohio courts' failure to provide mr.

Penson with a professional advocate to brief

nonfrivolous issues on appeal represents a

glaring violation of the due process and equal

protection clauses of the fourteenth

amendment. In prior cases, this Court has

made it clear that indigent appellants have a

right to effective assistance of counsel on

first appeal as of right. In this case, the

Ohio courts violated that right by considering

Mr. Penson's appeal without benefit of such an

advocate.

To be sure, counsel was initially

appointed for Mr. Penson by the Ohio Court of

Appeals. Despite the existence of arguable

claims that might have been raised on Penson's

behalf, however, that lawyer was permitted to

withdraw without filing a brief to assist his

EEE EEE EEEEEOEOEOOOOaeee

client and the court. Counsel's performance

was not only inadequate in light of this

Court's decision in Anders v. California, 386

U.S. 738 (1967), and ineffective within the

meaning of Evitts v. Lucey, supra, but

nonexistent in violation of Douglas v.

California, 372 U.S. 353 (1963).

Mr. Penson can be denied relief only if

the Court sees fit to change well-settled

propositions of constitutional law. Any such

change would be unnecessary and unwise. In

particular, we believe that Anders strikes an

appropriate balance between counsel's

obligations to the client and to the court.

The doctrine set forth in Anders is not a set

of judge-made nonconstitutional guidelines

designed to assist the state courts. That

doctrine is hard constitutional law, forged to

address a vexing problem in criminal justice

administration in a manner that is both

theoretically sound and practically workable.

Under Anders, counsel may request

permission to withdraw when he or she can find

no issues that are so much as "arguable," in

the sense that they are not wholly

"frivolous." In cases in which nonindigent

appellants are able to retain counsel, both

client and counsel have powerful incentives to

pursue an appeal on the merits. The client's

interest is in seeking reversal and avoiding

loss of liberty; retained counsel's interest

is economic--and often substantial. By

contrast, in cases involving indigent

appellants, counsel's incentives work in the

opposite direction. Private attorneys stand

to collect only modest fees for appellate

assignments and thus wish to move on to more

lucrative cases; public defenders wish to

concentrate effort on the most promising cases

on their crowded dockets.

Anticipating that appointed lawyers will

undervalue indigents' claims, this Court has

only two realistic options: (1) A general rule

requiring appointed counsel to brief the

merits notwithstanding a personal judgment

that none is arguable; (2) The less demanding

rule in Anders, which requires counsel to file

a brief identifying the claims counsel

considered in coming to his or her conclusion.

Given counsel's incentives to undervalue

such claims, it is essential that the

appellate court make an independent appraisal

of the record and thus check counsel's

judgment. An "Anders brief" is easy to

prepare and plainly necessary if the court is

to make an intelligent, informed decision.

Finally, the constitutional right at

stake in this case and others like it cannot

properly be subject to a special "prejudice"

requirement. This Court has never required a

showing of "prejudice" in right-to-counsel

cases. The critical distinction is between

misfeasance and nonfeasance. Since Mr.

Penson's appointed attorney did not merely

perform poorly, but failed to perform at all,

the unfavorable portions of the resulting

judgment cannot stand.

ARGUMENT

I. THE OHIO COURTS' FAILURE TO

PROVIDE THE PETITIONER WITH A

PROFESSIONAL ADVOCATE TO PRESS NON-

FRIVOLOUS CLAIMS ON FIRST APPEAL AS OF

RIGHT VIOLATED THE DUE PROCESS AND EQUAL

PROTECTION CLAUSES OF THE FOURTEENTH

AMENDMENT AS INTERPRETED IN THIS COURT'S

PRECEDENTS

For twenty-five years, it has been

settled that indigent criminal appellants are

constitutionally entitled to appointed counsel

on first appeal as of right. Douglas v.

California, supra. Any other rule would deny

indigent appellants a fair opportunity to make

use of the appellate process (a denial of due

process) and would penalize impoverished

citizens unable to purchase effective legal

services (a denial of equal protection of the

laws). See Pennsylvania v. Finley, supra at

1993; Evitts v. Lucey, supra at 405 & n.12

(reaffirming that the right recognized in

Douglas rests on both the due process and

equal protection clauses).

10

This right to counsel on appeal implies,

of course, a right to effective counsel,

namely an attorney who takes the role of an

"active advocate" as opposed to a "mere friend

of the court assisting in a detached

evaluation of the appellant's claims."

Evitts, supra at 394.

In cases like this one, in which a lawyer

assigned to represent an indigent on appeal

actively resists performing the functions

expected of an advocate, both the client's

right to counsel and the corollary right to

effective counsel are at risk. An appellate

court cannot simply permit appointed counsel

to withdraw and refuse to appoint a

substitute, thus taking back from the

appellant the very professional representation

to which the client is constitutionally

entitled.

ll

Nor can a court accept such an attorney's

unilateral conclusion that the claims

available to the client are frivolous and thus

not worth pursuing. If the right to an

appellate advocate is to be taken seriously,

the court must make its own independent

examination of those claims--to ensure that

lawyers do not resolve doubts against an

indigent client in order to justify passing on

to more lucrative or more promising cases.

When an attorney assigned to handle an

indigent appeal asks to withdraw, he or she is

constitutionally obligated to prepare a brief

referring to anything in the record that might

arguably support an appeal. A brief of that

kind must be supplied both to the client, who

can use it in the preparation of a substitute

brief pro se, and to the appellate court,

which can use it as an aid in making an

independent appraisal of the claims available.

12

If the court concludes that counsel is correct

in assessing all possible claims as frivolous,

a motion to withdraw can be granted and the

appeal can proceed on the appellant's pro se

brief alone. If, however, the court considers

a claim or claims to be arguable, then the

appellant must be provided with an advocate to

press those claims on the merits.? This, of

course, was the square holding in Anders.

Mr. Penson's treatment in the instant

case comes nowhere close to meeting these

well-settled constitutional standards. The

lawyer appointed to represent him on appeal

failed utterly in his constitutional

obligation to advocate on his client's behalf.

2 This case provides no occasion for

determining whether, in these circumstances, a

state court should or must appoint a different

attorney to represent the appellant. The

desirability of involving a lawyer who has not

previously (and publicly) declared that the

client's claims are frivolous is, however,

self-evident.

13

By his own admission, counsel merely reviewed

the record, decided (mistakenly) that he was

unlikely to succeed on any clain, and on that

basis asked for permission to withdraw.

Counsel did not, and plainly could not,

propose that the claims open to his client

were frivolous. He reported only that in his

view the claims were not so meritorious as to

require relief. He submitted no brief

referring to claims that might support an

appeal and, of course, provided no such brief

to Penson.

Thereafter, things only deteriorated

constitutionally. The Ohio Court of Appeals

fully recognized that there were arguable

claims for the appeal and, indeed, found one

such claim sufficient to justify a reversal of

conviction and vacation of sentence.

Nevertheless, the court permitted counsel to

withdraw. Rejecting Mr. Penson's timely

14

request for substitute counsel, the court

treated the appeal without the slightest

assistance from an advocate for Mr. Penson.

While, to be sure, the court overturned one

conviction, it sustained Penson's convictions

and sentences on all other counts.

The flagrant viclation of Mr. Penson's

constitutional right to counsel is scarcely

mitigated by the coincidence that the court of

appeals had access to briefs filed on behalf

of Brooks and Smith. By hypothesis, those

briefs were prepared by advocates for other

appellants, not Penson, and thus could hardly

serve as surrogates. By appointing separate

attorneys to represent the three co-defendants

on appeal, the court of appeals plainly

recognized that their interests might well

diverge. If it was important to secure

separate counsel for each man in order that

each, in turn, should have an advocate on his

15

behalf alone (and it surely was), then it was

equally vital to consider the work product of

those independent attorneys separately. It

is, indeed, the very nature of advocacy that

it can serve only one interest, or perfectly

consistent interests, at a time.

In sum, the treatment accorded to Mr.

Penson by the Ohio courts failed all the

relevant constitutional standards established

by this Court. The attorney appointed to

advocate on his behalf neglected the most

rudimentary elements of his constitutional

obligations. The Ohio Court of Appeals, in

turn, not only permitted counsel to abdicate,

but refused to appoint a substitute attorney

i

and thus treated the appeal without benefit of

an advocate. All this was flatly inconsistent

with the doctrine established in Anders.

The resulting appeal, moreover, was

undertaken in stark violation of Penson's

16

right to the effective assistance of counsel

recognized in Evitts, supra. Counsel failed

on the most fundamental level to press his

client's constitutional claims in the role of

a genuine advocate. Quite the contrary,

counsel shirked any such responsibility from

the outset. Unable to say that his client's

Claims were frivolous, counsel nevertheless

withdrew because he thought (wrongly) that

they would not actually win a reversal.

Finally, on a deeper level, the state

courts' failure either to keep the original

attorney on the job or to provide Penson with

substitute counsel constitutes an unadorned

violation of the right to appellate counsel

recognized in Douglas, supra. Realistically

appraised, this case is not about poor

representation so much as it is about the

absence of any representation at all for a man

hopelessly unable to fend for himself.

oz 17

The egregious disposition of this single

appeal by the Ohio courts is rendered more

serious by evidence, supplied by Mr. Penson's

current counsel, that the Ohio courts maintain

a general practice of treating indigents in

this manner. In case atter case, the courts

of Ohio have disregarded the constitutional

rights of a series of criminal appellants like

Mr. Penson.? Unfor unately, but necessarily,

this Court must call a halt to this routine

neglect of its precedents and must insist that

the Ohio courts conform their practices to the

fourteenth amendment. To allow this practice

to continue would be to invite the courts of

Ohio and other states to ignore this Court's

constitutional precedents.

3 In most instances, the Ohio appellate

courts have not had access to briefs filed by

advocates for co-defendants.

18

II. THIS COURT'S PRECEDENTS STRIKE

THE PROPER BALANCE BETWEEN APPOINTED

COUNSEL'S CONSTITUTIONAL OBLIGATION TO

THE CLIENT AND COUNSEL'S PROFESSIONAL

RESPONSIBILITIES TO THE COURT

The Ohio courts' departure from precedent

in this case can be countenan¢ged only if this

Court, too, sees fit to shenden constitutional

principles of long standing. We urge the

Court not to do so. Surely there can be no

question of discarding the bedrock holding in

Douglas that indigent criminal appellants have

a right to counsel, and it would be untenable

to reject the corollary understanding,

confirmed so recently in Evitts, that

counsel's performance must be effective. We

focus, accordingly, on the doctrine forged in

Anders precisely for cases such as this, in

which appointed counsel seeks to escape an

assignment to advocate on behalf of an

indigent appellant.

19

Anders haS itS detractors. The primary

concern seems to be that counsel may find it

awkward both to declare that a client's issues

are frivolous (necessary to justify a motion

to be relieved) and to file a brief referring

to claims in the record that might support an

appeal. Yet worries such as this depend upon

an inaccurate reading of the Anders opinion

and a flawed understanding of the reasoning

behind that opinion. To demonstrate as much,

we divide our argument into two parts--first

clarifying the procedure that Anders in fact

contemplates and then explaining how that

procedure responds to the demands of the

situation.

A. What Anders Does (And Does Yot)

Require of Counsel and the Court

It is essential at the threshold to be

clear with respect to the terminology emplcyed

in Anders and other cases in which it is

20

necessary to characterize the relative

strength of legal claims. Anders does not ask

lawyers to take inconsistent positions--to

state that an appeal is frivolous and at the

same time to identify nonfrivolous claims.

Nor does Anders draw hair-fine distinctions

between "frivolous" issues and claims that are

not "arguable." Under Anders, claims that are

not "arguable" are "frivolous" by definition.

Anders merely recognizes three

conventional classes of claims: (1) frivolous

claims, i.e., claims so worthless as to be

inadmissible in serious professional argument;

(2)arguable claims, i.e., claims which may

appear weak but which are sufficiently tenable

to permit a professional advocate to advance

them; (3)meritorious claims, i.e., claims

sufficiently strong to be sustained by the

reviewing court.

21

In the cases to which Anders is

addressed, only the distinction between the

first and the second kinds of claims is

crucial. In the first instance, counsel may

move to withdraw if he or she has studied the

record and has concluded in his or her own

mind that the claims available to the client

are frivolous (not arguable). Before

withdrawal can be approved, however, counsel

must file a brief identifying those claims to

the court, which "might" find them to be

nonfrivolous (arguable) notwithstanding

counsel's contrary judgment.

In this regard, counsel's task is hardly

so intellectually awkward as some critics

suggest. Open-minded professionals are often

called upon both to give their own views and

to outline alternative positions that other

professionals might take--and why. Nor does

the recognition that the court may override a

22

lawyer's judgment bespeak lack of respect for

counsel's professional integrity. The point

of the "Anders brief" is only to facilitate an

independent judicial examination. The reason

why a judicial determination is necessary is

the matter to which we now turn.

B. Anders' Theoretical Foundations

The doctrinal framework established in

Anders responds in a theoretically sound and

practically workable fashion to the :

constitutional values reflected in the due

process and equal protection clauses and the

incentive structure that must be anticipated

in this context.4

4 The decisions in this line are, in

fact, constitutional cases. Anders itself was

decided during a period in which the Court

occasionally fashioned so-called

"prophylactic" rules, not constitutionally

mandated themselves but instituted to protect

underlying constitutional rights. When the

Court announced such rules, however, their

special status was noted explicitly. E.g.,

Miranda v. Arizona, 384 U.S. 436, 467 (1966);

23

It is useful to begin with the situation

in which a nonindigent citizen suffers

conviction in a criminal prosecution and

contemplates appellate review. By hypothesis,

such a nonindigent can purchase the services

of a professional advocate to review the

record, to marshal the issues, and to file a

brief on the merits.

United States v. Wade, 388 U.S. 218, 237-39

(1967). In Anders, by contrast, the Court

expressly stated that the doctrine then being

elaborated was itself constitutional law:

The constitutional

of substantial equality and fair

process can only be attained where

counsel acts in the role of an

active advocate....{Counsel's] role

as advocate requires that he support

his client's appeal to the best of

his ability. Of course, if counsel

finds his case to be wholly frivolous,

...-he should so advise the court and

request permission to withdraw. That

request must, however, be accompanied

by a brief referring to anything in

the record that might arguably

support the appeal....

Anders, supra at 744 (emphasis supplied).

24

Inexperienced observers may conceive of

circumstances in which counsel reports that

all available claims are so patently frivolous

as to make the cause hopeless and in which the

appellant chooses to save his or her money.

Retained counsel's professional hesitancy to

press frivolous claims may also suggest (in

the minds of the inexperienced) that

nonindigents will abandon efforts to overturn

their convictions in an appreciable number of

cases and will choose to spend their money in

another way.>

5 It is this vision of a budget-conscious

nonindigent whose fastidious retained lawyer

balks at frivolous claims which drives the

common explanation for refusing to ask

appointed counsel to brief the merits of

frivolous claims on behalf of indigents. If,

it is said, nonindigents would not, and

perhaps could not, purchase an advocate's

brief on the merits in such a case, then the

state does not deny indigents the equal

protection of the laws by declining to provide

such a brief free of charge. The trouble with

this vision, of course, is that it is a vision

as opposed to a picture of reality--as we

explain in the text.

25

In actual practice, however, both the

magnitude of the players' incentives and the

imaginations of retained lawyers make any such

scenario exceedingly unlikely. The stakes for

the appellant are extraordinarily high.

Liberty itself is typically at stake, and it

is the rare person who will waive even a

remote chance of upsetting a criminal

conviction in favor of some other use of

capital. We know of no empirical data showing

that nonindigent convicts watch their budgets

carefully.

Retained counsel, moreover, has a

powerful economic incentive to locate some

arguable claim to justify charging the client

a fee. It seems only reasonable that an

intelligent attorney will be able to develop

Claims that he or she can pursue

professionally. Issues sufficient to form the

26

2asis for an appeal are not so cut-and-dried

that reasonable minds routinely agree on what

is or is not arguable in the minimal sense in

which that term is used in the case law. At

the very least, it is almost always possible

to contest the severity of the client's

sentence.

In the end, then, the appellate courts

are invariably presented with briefs on the

merits in cases in which the appellant is

nonindigent. There is no reason to believe,

and no evidence to suggest, that nonindigent

Clients are routinely mistreated by careless

attorneys who disregard tenable claims. The

incentive structure in place powerfully augers

for vigorous appellate advocacy.

In cases involving indigent defendants,

by contrast, the incentive structure supplies

no similar assurance. Indigents have the same

desire as nonindigents to press an appeal in

27

hopes of obtaining relief. Yet they cannot

hire their own lawyers. The great

constitutional commitment in Douglas was

intended to compensate for the indigent's

poverty and to provide appellate counsel free

of charge, lest the kind of justice a citizen

gets be determined by the amount of money he

or she has.

Providing appointed counsel to indigents

is only a beginning, however. The state's

willingness to pay for the indigent's

professional assistance does not invoke the

incentive structure at work in nonindigent

cases. While the client retains a desire to

press forward, appointed lawyers lack the

economic incentives that typically motivate

retained counsel to satisfy an enthusiastic

client by identifying arguable claims.

28

The fees fixed for legal services in

indigent cases are notoriously low,® and

private lawyers may tend to give such cases

short shrift in order to move on to more

lucrative opportunities. Salaried public

defenders, who lack that naked economic

disincentive, are influenced by another of

equal power. Their case loads are typically

heavy, and they reasonably wish to concentrate

scarce time and effort on the most promising

cases. Either way--whether the attorney

involved comes from the private bar or public

service--the incentive structure facing

appointed counsel is likely to generate an

outsized number of reports that claims are

frivolous. Reports of that kind raise very

ceal and justifiable concerns that indigent

© The amicus brief filed in this case by

the Ohio Association of Criminal Defense

Lawyers reviews the fees available in Ohio.

29

clients may be denied counseled appeals that

are warranted by the circumstances.

Constitutional doctrine, if it is to be

meaningful, must take account of this

incentive structure and must counter its

invidious results. There are only two

options. First, the Court can set aside any

reservations counsel may have and require an

appointed lawyer to brief the merits of at

least some claims, despite his or her judgment

that those claims are frivolous.’ Such a rule

would have two readily-apparent advantages.

Most important, it would approximate the state

of affairs with respect to nonindigents.

Again, the incentives in favor of briefing the

7 Of course, appointed counsel should

give the client the benefit of professional

judgment and thus may not press every claim

sound enough to be considered arguable. Yet

there is a world of difference between

discarding weak issues and focusing upon

stronger claims in a counseled appeal, e.g.,

Jones v. Barnes, 463 U.S. 745 (1983), and

abandoning an appeal altogether.

30

merits in that context are so strong, on the

part of client and counsel alike, that full

aress appeals can be expected in virtually

every instance. 8

A rule requiring appointed counsel to

brief the merits would also have the virtue of

obviating further worry about when, and the

conditions under which, counsel can be

permitted to withdraw and appeals can be

handled without professional represencation

for the appellant. A bright-line rule--crisp,

clean, and easy to administer--would be of

great value both to lawyers and to courts.

The appellate courts would presumably receive

8 The distance between a claim that an

appointed attorney considers to be frivolous

under the influence of incentives to

undervalue the client's issues in order to

justify withdrawal) and claims that a retained

lawyer considers to be arguable (under the

influence of economic incentives to identify

nonfrivolous claims in order to justify

charging the client a fee) is likely not to be

great.

31

more briefs on the merits, but those briefs

would at least be prepared by lawyers. More

Significantly, the courts would be freed from

litigation over decisions to deny appellate

counsel to indigents.

The alternative, of course, is Anders. A

lawyer can be appointed to represent an

indigent as a vigorous advocate and can be

charged to search the record for any arguable

Claims. If any such claim appears, counsel is

duty-bound to brief it for review--just as

would a retained attorney representing a

paying client. If appointed counsel concludes

that all available claims are frivolous and,

accordingly, that it would be unprofessional

to press them in court, he or she can be

permitted to report as much to the client and

the court and to move to withdraw.

Given the incentives known to operate

upon appointed counsel in these circumstances,

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however, the court cannot allow an attorney's

personal judgment to determine whether the

client is to have a counseled appeal.

Accordingly, Anders requires counsel to submit

a brief which identifies, both to the client

and to the court, the issues counsel

considered before asking to be relieved. With

such a brief in hand, the court can make an

independent appraisal of those claims as a

check on counsel's conclusion.

The Anders procedure is theoretically

sound and practically workable. Having just

examined the record and studied available

claims in drawing his or her own conclusions,

appointed counsel is in an excellent position

to draft an "Anders brief" quickly and

efficiently. If such a brief were not

required, both the client and the court would

be left with only the cold record. Difficult

as it may be for an appellate court to locate

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arguable issues in a case with counsel's help,

it would be much more difficult to identify

such issues without the assistance of the

lawyer who knows the record best.

As we explained earlier, the instant case

does not require the Court to revisit its

well-established precedents in this field.

Mr. Penson can be given the relief to which he

is entitled pursuant to the analysis in Point

I, supra. If, however, the Court is inclined

to rethink these issues, the only realistic

options are to reaffirm Anders or to require

appointed counsel to brief the merits in every

indigent appeal. Under either option, the

procedure followed below was constitutionally

deficient. Accordingly, Mr. Penson's

conviction cannot be upheld without breaking

faith with Douglas itself.

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III. CRIMINAL APPELLANTS WHO

SUFFER THE KIND OF CONSTITUTIONAL

VIOLATION EVIDENT IN THIS CASE ARE

ENTITLED TO REVERSAL WITHOUT A

SPECIAL SHOWING OF "PREJUDICE"

The Ohio Court of Appeals' attempt to

save its judgment on the ground that Mr.

Penson was not "prejudiced" by lack of

appellate counsel is wholly inadequate. To

take that position, the state court had to

reject the thinking behind Douglas, Evitts,

and Anders at the most fundamental level.

That court had to conclude that its own,

unaided examination of the cold record somehow

substituted for the appellate advocate to

which Penson was constitutionally entitled.

Yet the precedents reflect the judgment that

the appraisal of which a neutral appellate

court is capable simply cannot suffice for

vigorous advocacy by an attorney charged to

represent a client with warm zeal. In our

constitutional system, criminal appeals are

35

and must be adversarial in character, and no

disinterested review by a court, however

sympathetic, can serve as well.

This court has occasionally made a

special showing of "prejudice" an essential

element of a substantive constitutional claim.

The impulse to do that in some circumstances

is understandable. In an ordinary “effective

assistance of counsel" case, for example, it

may often be easy to identify some flaw in

counsel's trial-level performance. And if

reversal were required in every such case,

criminal convictions would rarely withstand

review. The Court has therefore insisted that

counsei's errors must have "prejudiced" the

client. Strickland v. Washington, 466 U.S.

668 (1984).

The Court has held explicitly that no

special showing of "prejudice" is necessary in

cases in which the state utterly fails to

36

provide any counsel. E.g., Gideon v.

Wainwright, 372 U.S. 335 (1963) (denial of

counsel at trial); Vv. ivan, 446

U.S. 335 (1980) (denial of conflict-free |

counsel). As the Court explained in

Strickland, supra, "prejudice" can be presumed

in these cases for two reasons. First, the

existence of "prejudice" is so likely that a

case-by-case inquiry is “not worth the cost."

Second, the impairment of the individual's

constitutional rights is “easy to identify"

and thus "easy for the government to prevent."

Id. at 692.

The instant case is, of course, one in

which counsel was not provided at all. The

attorney who was appointed for Mr. Penson

promptly withdrew, and the appeal which

followed was heard after counsel had been

released. There is no dispute about this.

The Ohio Court of Appeals explicitly

37

recognized that no attorney appeared for Mr.

Penson. Nevertheless, that court considered

and decided the arguable claims the court

itself put in Penson's mouth.

Because counsel was not provided at all,

the likelihood of "prejudice" to Mr. Penson

was palpable. As the Court explained in

Douglas, appellate counsel supplies the only

"real chance" an indigent has to demonstrate

that claims have "hidden merit" that is not

apparent from the "barren record." 372 U.S.

at 356.

And, of course, the constitutional

violation here was glaring. The state of Ohio

had an unquestioned constitutional obligation

to provide Mr. Penson with counsel on appeal

and flatly failed to meet that obligation.

The Ohio Court of Appeals fully understood the

implications of allowing the original

appointed attorney to withdraw and refusing to

38

appoint a substitute. This was not a case in

which appointed counsel allegedly failed to

serve a client properly in circumstances in

which it was difficult for state officials to

detect the wrong and set it right. It would

have been a simple matter to avoid the

violation of Mr. Penson's rights. So far from

ensuring that counsel assumed his

responsibilities, the court of appeals

capitalized on counsel's default and

deliberately denied Mr. Penson any appellate

counsel.

This Court would send a dangerous signal

to lawyers and courts if it were to sustain

the Ohio courts' decision in this case on the

ground that Mr. Penson was not "prejudiced."

State courts would be tempted to disregard

Douglas routinely and thus to handle indigent

appeals ex parte--explaining away their

failure to conform to the fourteenth amendment

39

on the ground that, in their view, counsel was

not needed. Indeed, this is precisely what

Ohio seems already to be doing on the apparent

hope that this Court will acquiesce. If

Douglas is not to be overruled by the back

door, and if the very real reasons for

supplying indigent appellants with counsel are

not to be ignored, then a frank failure to

provide Mr. Penson with an advocate in this

case must bring reversal.

Because this case, like Evitts, provides

no occasion for evaluating the

“effectiveness” of counsel on appeal, any

inquiry into “prejudice” would be misplaced.

We hasten to add, however, that when the Court

takes a case in which this “prejudice”

question is actually presented, the greatest

care should be taken to avoid any standards

that defy effective enforcement.

40

CONCLUSION

For the reasons stated herein, the

decision below should be reversed and the case

remanded for the appointment of a professional

advocate to represent Mr. Penson in new

appellate proceedings in state court.

Respectfully submitted,

LARRY W. YACKLE

Boston University

School of Law

765 Commonwealth Avenue

Boston, Mass. 02215

(617) 353-2826

JOHN A. POWELL

STEVEN R. SHAPIRO

American Civil Liberties

Union Foundation

132 West 43 Street

New York, NY 10036

(212) 944-9800

KIM ROBERT FAWCETT

National Legal Aid

and Defender Association

1625 K Street, N.W.

Washington, D.C. 20006

(202) 452-0620

April, 1988

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