Amicus Curiae Brief — Smith v. Robbins

2 F LED

APR 21 1999

No. 98-1037 nen

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

GEORGE SMITH, Warden,

Petitioner,

VS.

LEE ROBBINS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

3149

QUESTION PRESENTED

Should Anders v. California be modified or overruled?

TABLE OF CONTENTS

Es 650 0b.bn40050400b00000600e0002 i

SEED Sb eccecoevecercccenecesecevenss iv

Interest of amicus curiae ... 0.6.6. eens l

Summary of facts and case... .. 2... eee 2

GOED wc ccccccccseccceccececscecess 3

PED ccs sev ecccesaceccccvessssceconecossees 4

I

Appointed appellate counsel’s duties to defendant should be

defined in light of the limited resources available to the

PPG c ccccccccccoceccocccecesceees 4

Anders requires appointed counsel confronted with a frivolous

appeal to write an “impossible brief,” that overburdens the

courts and treats other defendants unfairly ............ 10

A, THD RUGRG FUGMMEED onc ccc cccccccccccccens 10

B. The Impossible Dilemma .................05. 13

C. The Impossible Distinction ................46. 17

Th PPE cocccedccccccececscccesees 19

Il

Anders should be overruled or substantially modified ..... 21

ED 605 550068600086066560000nRCRC ese CeCe 30

(iii)

iv

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U. S. 203, 138 L. Ed. 2d 391,

117 S. Ce. 197 (IDDT) .. cr ceccccccccccccncvecces 22

Ambach v. Norwick, 441 U. S. 68, 60 L. Ed. 2d 49,

Se GR, COO o oe neencctévccntavscwconnnces 12

Anders v. California, 386 U. S. 738, 18 L. Ed. 2d 493,

ag FR: 5 ere rer re Passim

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71,

100 L. Ed. 2d 62, 108 S. Ct. 1645 (1988) ............4.. 7

Blackledge v. Allison, 431 U. S. 63, 52 L. Ed. 2d 136,

Oe ah Gh CP EUSOED ohn cdkccnséadsdecesSusencseds 4

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 397

SIRE 0.0 ccancosccectesancuusecdacsoosweneuens 9, 20

Commonwealth v. Moffett, 418 N. E. 2d 585

SA, SUD o ec denseckdaundecedaedeashes 16, 21, 25, 26

Conn v. Gabbert, 526U.S. _ (No. 97-1802,

RET D, FOSS ov cacvacccccecenessesendesoscccctes 29

Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811,

ree eee 7

Evitts v. Lucey, 469 U. S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830

SED nos ceneshcbnndetessutudeteneescasutacenss 28

Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368,

66 L. Ed. 2d 571, 101 S. Ct. 669 (1981) ............... 4

Hertz v. Woodman, 218 U. S. 205, 54 L. Ed. 1001,

es Gh Ge Se He Ne ee cecanenctdesccuteceesuss 22

Hewitt v. Helms, 459 U. S. 460, 74 L. Ed. 2d 675,

Se Oe GA GOED cnn euecccecccdesccccvenssucsons 4

Huguley v. State, 324 S. E. 2d 729 (Ga. 1985) ..... 10, 21, 26

_—

In re Griffiths, 413 U. S. 717, 37 L. Ed. 2d 910,

A ccndusduucbackektnhousndeee ts 12

In re McDonald, 489 U. S. 180, 103 L. Ed. 2d 158,

I i i ait a al ae 7

Keeney v. Tamayo-Reyes, 504 U.S. 1, 118 L. Ed. 2d 318,

og TEES et een eee ee 4

Killingsworth v. State, 490 So. 2d 849 (Miss. 1986)....... 26

Landgraf v. USI Film Products, 511 U.S. 244, 128 L.

Ed. 2d 229, 114 S. Ct. 1483 (1994) ............... 23, 24

Lewis v. Casey, 518 U. S. 343, 135 L. Ed. 2d 606,

Ss cc ncieancddadcuanunewe st 6, 23

Lochner v. New York, 198 U.S. 45, 49 L. Ed. 937, 25

DT secdtiutccansessetdakdantenesecn 22

McCleskey v. Zant, 499 U. S. 467, 113 L. Ed. 2d 517,

ee cabuccudececdédandaueceuasses 4

McCoy v. Court of Appeals of Wisconsin, 486 U. S. 429,

100 L. Ed. 2d 440, 108 S. Ct. 1895

SE sonsescdeceenscuenesues 11, 12, 14, 15, 18, 20, 27

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

es ek SED ecececoneedéccesenececec« 20, 28

Nickols v. Gagnon, 454 F. 2d 467 (CA7 1971) ........ 18, 19

Patterson v. McLean Credit Union, 491 U. S. 164,

105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) ......... 22, 23

Payne v. Tennessee, 501 U. S. 808, 115 L. Ed. 2d 720,

ER Be eT eee 22, 23, 24

Pennsylvania v. Finley, 481 U. S. 551, 95 L. Ed. 2d 539,

Se Eh ks SUED oc ncevenséscececccscescdcses 24

Penson v. Ohio, 488 U. S. 75, 102 L. Ed. 2d 300,

ED gb bebes cncdeescdadesecieneses 26

vi

People v. Feggans, 67 Cal. 2d 444, 62 Cal. Rptr. 419,

Se POD 6nccbsbeecedddeccdsesesseceses 27

People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839,

we PPT TT TIT TTT ere 2, 26, 27

Planned Parenthood of Southeastern Pa. v. Casey,

505 U. S. 833, 120 L. Ed. 2d 674, 112 S. Ct. 2791

Nd ii ai ee he See ee ees Seabee 22

Polk County v. Dodson, 454 U. S. 312, 70 L. Ed. 2d 509,

eee dekeun baeues 14

Robbins v. Smith, 152 F. 3d 1062 (CA9 1998) ............ 2

Ross v. Moffitt, 417 U. S. 600, 41 L. Ed. 2d 341,

ee Es i rns te tea addweaataebeewel 13

Sandin v. Conner, 515 U. S. 472, 132 L. Ed. 2d 418,

ee ee ee kc ee shade eens 4, 30

Seminole Tribe of Fla. v. Florida, 517 U. S. 44,

134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996) ............ 22

Silverman v. United States, 365 U. S. 505, 5 L. Ed. 2d 734,

8 ee oy eer eee 29

State Oil Co. v. Kahn, 522 U.S. 3, 139 L. Ed. 2d 199,

RR Ee ee 23

State v. Balfour, 814 P. 2d 1069 (Or. 1991) ............. 26

State v. Cigic, 639 A. 2d 251 (N.H. 1994). .............. 26

State v. Lewis, 291 N. W. 2d 735 (N.D. 1980) ........... 25

State v. McKenney, 568 P. 2d 1213 (Idaho 1977)... 16,21, 25

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

Se ee Ge, FCN OED 6 oc cece cccccvesesvcccceecess 29

United States v. Bryan, 339 U. S. 323, 94 L. Ed. 884,

Pee. GE, TRO QRRSED ov vec vcccccccceccsssosoosoeses 23

Vil

United States v. Dixon, 509 U. S. 688, 125 L. Ed. 2d 556,

Re en err ee 24

United States v. Edwards, 777 F. 2d 364 (CA7 1985).... 6, 11

United States v. MacCollom, 426 U. S. 317, 48 L. Ed. 2d 666,

Se Se PU EUOUED obi tcccecccecciconsciosees 12, 13

United States v. Scott, 437 U. S. 82, 57 L. Ed. 2d 65,

SP Ge SU CUTER co vcentccceccevencesesceccces 23

Zauderer v. Office of Disciplinary Counsel of Supreme

Court of Ohio, 471 U. S. 626, 85 L. Ed. 2d 652,

as Gs EE ccbeuddbecCedwkeeesckeseewes 12

Rule of Court

Rules of Arkansas Supreme Court and Court of Appeals,

PE chcleibbslecubsacsundveuchsancedes ots 27

Treatises

| G. Hazard & W. Hodes, The Law of Lawyering

Se SPUD ncccundseecsdaeseddnnes 16, 17, 19, 25

J. Hall, Professional Responsibility of the Criminal Lawyer

DC ccscacedauetecteneuweuanesdakesstes 16

The Federalist No. 78 (C. Rossiter ed. 1961)

REE oe ea ne a eee 21

C. Wolfram, Modern Legal Ethics (1986) ....... 7, 16, 18, 20

Miscellaneous

ABA Modei Code of Professional Responsibility (1983) ... 10

ABA Model Rules of Professional Conduct

P+ ccbesnGaeneeredethnee beaeeneneeses 10, 12,14

Vill

Doherty, Wolf! Wolf!—The Ramification of Frivolous

Appeals, 59 J. Crim. L., Criminology & Police Sci. |

SUED a0 06 n66n00bs bene ed teseasevesseens 8, 11, 12, 16

Hazard, Rationing Justice, 8 J. L. & Econ. | (1965) ...... 8,9

Hermann, Frivolous Criminal Appeals,

47 N. Y. U. L. Rev. 701 (1972) .......... 9,11, 15, 18, 19

N. Komesar, Imperfect Alternatives (1994) ............ 5,6

Peacock, Cost of Judicial Services, in The New Palsgrave

Dictionary of Economics and the Law

ee ee eee eee . 5,6

Pengilly, Never Cry Anders: The Ethical Dilemma of

Counsel Appointed to Pursue a Frivolous Criminal Appeal,

9 Crim. Just. J. 45 (1986) ...... 7, 11, 13, 15, 20, 24, 25, 26

Pritchard, Auctioning Justice: Legal and Market

Mechanisms of Allocating Criminal Appellate Counsel,

34 Am. Crim. L. Rev. 1161 (1997) ... 4,7, 9, 19, 21, 24, 30

Rehnquist, the Notion of a Living Constitution,

er Ce is SE EE bccodsacocudeduetecesens 22

Warner, Anders in the Fifty States: Some Appellants’

Equal Protection is More Equal Than Others’,

23 Fla. St. U. L. Rev. 625 (1996) ...... 9, 20, 25, 26, 27, 28

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

GEORGE SMITH, Warden,

Petitioner,

VS.

LEE ROBBINS,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a nonprofit

California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the due process protection of the

accused into balance with the rights of the victim and of society.

The considerable difficulties the courts and counsel have with

frivolous indigent appeals, as demonstrated by the decision below,

are contrary to the interests of society that CJLF was formed to

protect.

1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

SUMMARY OF FACTS AND CASE

On December 31, 1988, defendant shot and killed his former

roommate. Pet. for Cert. 2. He served as his own counsel at his

trial in Los Angeles County Superior Court, id., at 3, and was

convicted of second-degree murder and grand theft auto. Robbins

v. Smith, 152 F. 3d 1062, 1064 (CA9 1998).

Defendant was appointed counsel for his appeal. J/bid.

Appellate counsel found that there were no nonfrivolous issues to

appeal. Pet. for Cert. 3. Following the procedures established in

People v. Wende, 25 Cal. 3d 436, 600 P. 2d 1071 (1979), appellate

counsel filed a nonmerit brief with the Court of Appeal. Pet. for

Cert. 3. It contained the procedural history of the case, a state-

ment of facts, and a request that the Court of Appeal independ-

ently review the record for appealable issues. In an attached

declaration, appellate counsel averred that he had reviewed the

entire record, discussed the case with trial counsel, and told

defendant of his right to request counsel’s removal and file his

own brief in propria persona. /bid. Defendant filed a brief on his

own behalf. /bid. The appellate court, after independent review

of the record, found that appellate counsel satisfied his duties, that

the issues raised by defendant were unsupported by the record, and

that there were no arguable issues to appeal. /bid.

After exhausting his state remedies, defendant filed a federa,

habeas action on February 24, 1994. Robbins, supra, 152 F. 3d,

at 1064. He claimed that state appellate counsel's withdrawal

violated Anders v. California, 386 U. S. 738 (1967). On October

24, 1995, the District Court granted the habeas petition, effectively

requiring the California Court of Appeal to hear defendant's direct

appeal. /d., at 1065. The Ninth Circuit affirmed, finding that the

California procedure violated Anders because counsel's Wende

brief had failed to “identify any grounds that arguably supported

an appeal.” /d., at 1067. It also upheld the District Court's

conclusion that there were two nonfrivolous issues: |) the denial

of defendant’s attempt to withdraw the waiver of his right to

counsel; and 2) the inadequacy of the county jail’s library

depriving him of his right to self-representation. /bid.

SUMMARY OF ARGUMENT

This Court has good reason to concern itself with wasting

resources, as the judiciary is particularly vulnerable to resource

limitations. Judicial decisionmaking is relatively expensive, and

likely to get more expensive over time. The physical constraints

upon the judiciary are particularly severe at the appellate level.

Frivolous appeals are thus a particularly important problem to

attack. No legitimate interest is served by frivolous appeals.

Because indigent criminal defendants have no incentive to forego

frivolous appeals, this class of litigants is a singularly large source

of frivolous appeals. Therefore, limiting frivolous defense appeals

is a particularly fertile ground for saving scarce judicial resources.

Anders v. California exacerbates this problem by requiring

appointed counsel confronted with a frivolous appeal to write an

“impossible brief” that overburdens the courts and treats other

defendants unfairly. The decision implicitly mistrusts the

reliability of appointed counsel and presumes that retained counsel

is willing to file anything for money, no matter how frivolous the

appeal. Few attorneys are so unethical or incompetent.

The Anders brief imposes an impossible ethical dilemma

between counsel’s duty not to file frivolous claims, and the duty

to act as advocate on behalf of the client. Anders also assumes

that frivolous can be defined more precisely than reality allows.

An issue either is or is not frivolous, if it might “arguably support

the appeal” then it is no longer frivolous.

Anders also places too great a burden on the intermediate

appellate courts by requiring them to search the record for

appealable issues. Having courts act on behalf of indigent

frivolous defendants in this manner creates equal protection

problems, since nonindigent defendants and indigent defendants

who file briefs on the merits do not get the same level of judicial

scrutiny as Anders litigants.

Stare decisis is a rule of policy that should not prevent this

Court from overruling or modifying Anders. There is no reliance

interest in Anders, and it has caused considerable confusion.

Given its high cost in wasted resources and the ethical dilemmas

it causes, Anders should be abandoned.

ARGUMENT

I. Appointed appellate counsel’s duties to defendant

should be defined in light of the limited resources

available to the criminal justice system.

Rights exist in a world governed by limited resources.

“Scarcity is a central fact of the human condition and the

starting point for economic analysis. Legal services, like

other goods, are affected by scarcity. The time of lawyers,

judges, and court personnel is not unlimited, and society

must determine how to allocate this good.” Pritchard,

Auctioning Justice: Legal and Market Mechanisms for

Allocating Criminal Appellate Counsel, 34

Am. Crim. L. Rev. 1161, 1161 (1997).

This Court's decisions reflect the importance of accommodat-

ing rights to limited resources. The body of habeas corpus

jurisprudence contains many references to prevent the waste of

“scarce judicial resources” by limiting unnecessary litigation on

habeas. See, e.g., Keeney v. Tamayo-Revyes, 504 U.S. 1, 7 (1992);

MecCleskey v. Zant, 499 U.S. 467, 491 (1991).

Habeas is not the only field in which this Court seeks to

conserve scarce resources. It has strengthened the government's

ability to enter and enforce plea bargains in part because these

agreements allow “[j]udges and prosecutors to conserve vital and

scarce resources.” Blackledge v. Allison, 431 U.S. 63, 71 (1977).

This Court takes a similarly practical approach to interlocutory

appeals. It will not allow such appeals for the sole reason of

correcting erroneous decisions, as doing so “would constitute an

unjustified waste of scarce judicial resources.” Firestone Tire &

Rubber Co. vy. Risjord, 449 U. S. 368, 378 (1981). Another

example of the need to conserve judicial resources is found in a

prisoner rights case, Sandin v. Conner, 515 U. S. 472 (1995).

Among the reasons the Sandin Court chose to abandon the broad

definition of state-created liberty interests announced in Hewitt v.

Helms, 459 U. S. 460 (1983), was the fact that “the Hewitt

approach has led to the involvement of federal courts in the day-

to-day management of prisons, often squandering judicial

resources with little offsetting benefit to anyone.” 515 U.S., at

482.

This Court has good reason to concern itself with wasting

resources. While no institution is free of the constraints posed by

a world of necessarily limited resources, the judiciary is particu-

larly vulnerable. As an institution, the judiciary comes by its

decisions very expensively. The rules and formalities that give

courts their evenhandedness also make them very expensive when

compared to other institutions, such as the market or the political

process. See N. Komesar, Imperfect Alternatives 125 (1994).

‘mevitably, some decisions are kept from the courts because they

are too costly to litigate. /d., at 125-128.

The problem of cost is likely to worsen over time. Although

precise estimates of the cost of judicial services are difficult, it is

likely that the judiciary suffers from “cost disease.” See Peacock,

Cost of Judicial Services, in The New Palsgrave Dictionary of

Economics and the Law 530, 531 (P. Newman ed. 1998).

“A well-known hypothesis . . . suggests that in the case of

government provision of law and order, health and

education, personal services are an integral part of output

and this will limit the substitution of capital for labour. It

seems inconceivable that judges trying cases or lawyers

representing clients could be replaced by interacting

computers which could produce justice, and in any event

the quality of the service is perceived to be uniquely

correlated with personal service. At the same time, the

price of the labour services used in the provision of justice

will depend on the value of these services in the economy

as a whole. Judges and legal staff receive emoluments

and status comparable with those which they would

otherwise obtain as professional or corporate lawyers or in

other professions where their skills and experience could

be employed. It follows that as an economy grows and

real wages increase, increases in costs per unit in, say,

manufacturing output, will be offset by increases in

productivity per head resulting from process innovations,

whereas costs to secure judicial output are bound to rise,

even if no extra inputs are required. If the growth in the

economy is accompanied as already indicated, by an

increase in the demand for the resolution of disputes and

the growth in recorded crime and associated demand for

criminal proceedings, then expenditure on judicial ser-

vices, in common with other forms of government expen-

diture embodying personal services, must have a tendency

to rise at a faster rate of growth than national expendi-

ture.” /bid. (citation omitted).

In practical terms, this means that the problem of overcrowded

courts is not going away. Although demand for judicial services

may consistently outstrip legal productivity, society will not

devote an ever larger share of the economy to the law. In the end,

some disputes will not make it to the courthouse. Any effort to

make the legal system less wasteful can thus reap considerable

rewards both economically and as a matter of justice.

Appellate courts are a particularly critical bottleneck. The

hierarchical structure of appellate courts limits their physical

capacity to resolve disputes. The apex, of each jurisdiction's

system, this Court and the highest court of each state, has a fixed

capacity to decide cases.

“The most obvious reform, increasing the number of

judges on these high courts, does not easily or even

necessarily increase the output of this court. While an

increase in judges would decrease the per judge load of

opinion writing, it would not decrease the time and effort

necessary to reach a collective decision by this body. In

fact, increasing the numbers would probably make such

collective decisions more difficult and tinie consuming.”

Komesar, supra, at 144-145.

Increasing the size of the intermediate appellate courts is little

better, as larger courts will inevitably create more conflicts that

must be resolved by the Supreme Court. See id., at 145. Thus

“the main bottleneck [to the capacity of the judiciary]—is the

appellate court system.” /d., at 144.

Checking frivolous appeals is one of the most efficient, least

costly means for the judiciary to deal with its limited resources.

A litigant who loses a frivolous claim loses nothing. See Lewis v.

Casey, 518 U.S. 343, 353, n. 3 (1996). Nor does counsel have

either the duty or the right to present frivolous claims. United

States v. Edwards, 777 F. 2d 364, 365 (CA7 1985) (per curiam).

Courts also have no interest in dealing with claims that never

should have been made. For every frivolous claim that is disposed

of efficiently, attorney and judicial resources can be freed to deal

with more worthy disputes. Discouraging frivolous appeals thus

“furthers the State’s interest in conserving judicial resources.” See

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 81-82

(1988).

Unfortunately, the decisions providing representation for

indigent defendants for their first appeal makes frivolous appeals

much more likely in these cases. The constitutionally necessary

subsidy of Douglas v. California, 372 U. S. 353 (1963) and the

other indigent appeal cases remove any incentive for an indigent

defendant to forego a frivolous appeal, making the demand to

pursue even the most unworthy appeal a rational choice for the

indigent defendant. See Pritchard, supra, 34 Am. Crim. L. Rev.,

at 1167; Pengilly, Never Cry Anders: The Ethical Dilemma of

Counsel Appointed to Pursue a Frivolous Criminal Appeal, 9

Crim. Just. J. 45, 46 (1986); C. Wolfram, Modern Legal Ethics

817 (1986). A similar problem afflicts this Court’s pro se

petitions.

“But paupers filing pro se petitions are not subject to

the financial considerations—filing fees and attorney's

fees—that deter other litigants from filing frivolous

petitions. Every paper filed with the Clerk of this Court,

no matter how repetitious or frivolous, requires some

portion of the institution's limited resources. A part of the

Court's responsibility is to see that these resources are

allocated in a way that promotes the interests of justice.

The continual processing of petitioner’s frivolous requests

for extraordinary writs does not promote the end.” /n re

McDonald, 489 U.S. 180, 184 (1989) (per curiam).

The fact that Congress and the states are effectively compelled

to provide resources for defendant's first appeal does not avoid the

high costs of frivolous indigent appeals. “[JJudicial fiat cannot

cure scarcity; it merely disguises the symptoms of the disease.”

Pritchard, supra, 34 Am. Crim. L. Rev., at 1162. Justice is not

immune from economic realities.

“In ethical and legal discussion, ‘justice’ in adjudication

is sometimes spoken of as though it were an impalpable or

an absolute. In operational terms, which is to say eco-

nomic terms, it is surely not. In the doing of justice, as

elsewhere, what can be obtained is limited by what can be

funded. And if it is true that no amount of money can buy

perfect juridical insight, it is clear enough that approxima-

tions of perfection in an organized social structure are

possible only with substantial expenditure. Hence, all

decisions about the measure of justice that should be

accorded in the system are also decisions about public

expenditure.” Hazard, Rationing Justice, 8 J. L. & Econ.

1,4 (1965).

Resources spent on indigent appeals must come from some-

where.

“[D]ecisions about the desired level of service in the

public welfare program of administered justice are

economically competitive with decisions to engage in

other types of programs .... Hence, administered justice

is acommodity for which differential preference has to be

established by comparison with other possibilities.” /bid.

Because each extra indigent appeal will come at the expense of

some other public good such as education, health, or defense, it i.

unrealistic to expect states or Congress to provide indigem

criminal appellants with a level of funding that will give them

some “perfect justice.”

The resource limits on indigent appeals places most of the

burden of frivolous appeals on indigent defendants with poten-

tially valid appeals. If counsel for indigent defendants spend too

much time on frivolous appeals “the people who will suffer the

most are the indigent prisoners who have been unjustly convicted:

they will languish in prison while lawyers devote time and energy

to hopeless causes on a first come-first served basis.” Doherty,

Wolf! Wolf!—The Ramification of Frivolous Appeals, 59

J. Crim. L., Criminology & Police Sci. 1, 2 (1968) (emphasis in

original).

Frivolous appeals harm those with valid claims even after

briefs are filed. Every frivolous appeal reviewed by an appellate

court further delays vindication for the improperly convicted

defendant. Furthermore, these unnecessary cases harm other

defendants in a more insidious way. There is an unavoidable cost

to crying wolf, if counsel for indigent defendants are forced to

press frivolous appeals, then counsel's credibility before the

intermediate appellate courts will diminish, harming those

indigent defendants with potentially meritorious claims. See ibid;

Hermann, Frivolous Criminal Appeals, 47 N. Y. U. L. Rev. 701,

703 (1972).

Justice Jackson noted the problem of the many bad claims

driving out the few good ones in the context of habeas corpus:

“It must prejudice the occasional meritorious application

to be buried in a flood of worthless ones. He who must

search a haystack for a needle is likely to end up with the

attitude that the needle is not worth the search.” Brown v.

Allen, 344 U.S. 443, 537 (1953) (opinion concurring in

result).

Improperly convicted defendants are not the only victims of

frivolous appeals. Some prosecutorial resources will be wasted in

dealing with frivolous claims. More importantly, judicial

resources spent on frivolous cases will be diverted from all

appeals, including civil and nonindigent criminal cases, delaying

justice for every litigant and contributing to the ever-increasing

strain on the judiciary’s resources.

Unfortunately, the problem with frivolous indigent criminal

appeals is significant.

“A significant amount of appellate judges’ time is

spent in reading two or more briefs, exchanging memo-

randa and perhaps writing an opinion in criminal cases

which plainly lack any basis for reversal. Especially with

regard to the federal appellate bench, it may fairly be said

that most judges find the task at best bothersome and at

worst infuriating.”

Hermann, supra, 47 N. Y. U. L. Rev., at 702 (footnotes omitted);

see also Pritchard, supra, 34 Am. Crim. L. Rev., at 1168-1169

(Anders has “driven the courts to judicial triage” leading fully

briefed appeals to get less than complete attention); Warner,

Anders in the Fifty States: Some Appellants’ Equal Protection is

More Equal Than Others’, 23 Fla. St. U. L. Rev. 625, 625 (1996)

(finding dealing with Anders briefs “[a] continuing source of

frustration for the appellate judge”).

10

The problem of frivolous appeals can be addressed by

checking the indigent defendant's unconstrained interest in

prosecuting all possible appeals without regard to their merit.

Appointed counsel is the most logical choice to act as a gate-

keeper. Unlike the client, counsel has an ethical duty to keep

frivolous appeals out of the courts. See, e.g, ABA Model Rules

of Professional Conduct, Rule 3.1 (1992); ABA Model Code of

Professional Responsibility, DR 7-102(A)(2), EC 7-4 (1983);

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

potentially meritorious wheat from the frivolous chaff is appellate

counsel's job. See Huguley v. State, 324 §. E. 2d 729, 731 (Ga.

1985).

Anders too often prevents defense counsel from fulfilling this

necessary role. As amicus will demonstrate, this decision places

unreasonable ethical burdens on counsel, needlessly deterring

them from acting as the gatekeeper against frivolous claims.

Il. Anders requires appointed counsel confronted

with a frivolous appeal to write an “impossible brief,”

that overburdens the courts and treats

other defendants unfairly.

A. The Improper Premise.

Anders v. California, 386 U. S. 738 (1967) seems to operate

from a premise of mistrust. The holding that a letter informing the

court that the appeal is frivolous is ineffective advocacy, and must

be supplemented by a brief allowing the court to examine the

correctness of counsel's assertion, see id., at 744, “can be ex-

plained, .. . only upon the cynical assumption that an appointed

lawyer's professional representation to an appellate court in a ‘no-

merit’ letter is not to be trusted.” /d., at 746 (Stewart, J., dissent-

ing). This premise is the foundation for Anders’ unworkable

solution to the problem of frivolous appeals. It creates an

impossible ethical dilemma for appointed counsel, creating

unnecessary work and encouraging frivolous appeals.

Although the Anders majority does not state this assumption

explicitly, the dissent’s accusation is well-founded. Under the

Anders procedure, the Court of Appeals duplicates counsel's role

of examining the entire record for issues to appeal. See id., at 744.

The Janus-faced Anders brief filed by counsel is often either

perfunctory or a brief against the client. See R. Hermann,

Frivolous Criminal Appeals, 47 N. Y. U. L. Rev. 701, 711-712

(1972). At best, the “brief referring to anything in the record that

might arguably support the appeal,” Anders, 386 U. S., at 744,

requires counsel to point out potential flaws in his or her analysis

to the court, which shows little confidence in appointed counsel's

abilities.

Anders also betrays a low opinion of retained counsel. The

decision is based on giving indigent and nonindigent defendants

essentially equal access to the courts. See id., at 745; McCoy v.

Court of Appeals of Wisconsin, 486 U. S. 429, 438 (1988). Thus,

“[i]n imposing this burden only upon attorneys representing

‘penniless defendants’ the court assumes, first, that anyone ‘able

to afford the retention of private counsel’ has the right and

opportunity to present any appeal, no matter how meritless it may

be.” Pengilly, Never Cry Anders: The Ethical Dilemma of

Counsel Appointed to Pursue a Frivolous Criminal Appeal, 9

Crim. Just. J. 45, 49 (1986). From this follows Anders’ belief that

“private lawyers will undertake the appeal of any criminal

conviction, even a frivolous one so long as they are compensated.”

Doherty, Wolf! Wolf!—The Ramifications of Frivolous Appeals,

59 J. Crim. L., Criminology & Police Sci. 1, 3 (1968). Anders

thus defines the standard of practice for retained counsel at this

lowest, most mercenary common denominator:

“Since, speaking realistically, a criminal defendant who

has money will always be able to persuade some lawyer to

prosecute an appeal for him, parity—or, again speaking

realistically, an approximation to parity—between crimi-

nal defendants who do and those who do not have mone-

tary means requires that the appointed counsel who wants

to withdraw not leave his client wholly in the lurch, which

is the practical consequence of the ‘no merit’ letter.

Instead he must file a brief that will advise the court of

what points he might have raised and why he thinks they

would have been frivolous.” United States v. Edwards,

777 F. 2d 364, 365 (CA7 1985) (per curiam).

12

This characterization of counsel that is the heart of Anders is

corrosive and unfair. While some lawyers may file anything for

money, ethical lawyers will not file a frivolous appeal regardless

of the monetary consequences. See, e.g, ABA Model Rules of

Professional Conduct, Rule 3.1 (1992); Doherty, supra, at 3. The

overwhelming majority of lawyers do not abandon their profession

responsibilities. See United States v. MacCollom, 426 U.S. 317,

326 (1976) (plurality).

Allowing constitutional standards to be defined by such

unethical conduct is corrosive to the legal profession. Society and

“the legal profession has . . . been well served by a code of

ethics which imposes certain standards beyond those

prevailing in the market place and by a duty to place

professional responsibility above pecuniary gain.”

Zauderer vy. Office of Disciplinary Counsel of Supreme

Court of Ohio, 471 U.S. 626, 677 (1985) (O°Connor, J.,

concurring and dissenting).

By virtue of its position at the apex of the federal judiciary, this

Court is a leader of the legal profession. Anders is a poor use of

this authority. Attorneys “occupy professional positions of

responsibility and influence that impose on them duties correlative

with their vital right of access to the courts.” /n re Griffiths, 413

U.S. 717, 729 (1973). They are “leaders in government through-

out the history of our country.” /bid.

“Despite the almost continuous criticism leveled at the

legal profession, he, too, is an influence in legislation, in

the community, and in the role-model figure that the

professional person enjoys.” Ambach v. Norwick, 44]

U.S. 68, 89 (1979) (Blackmun, J., dissenting).

This Court should both presume and expect a higher standard than

found in Anders.

In McCoy, supra, this Court devised a more nuanced view of

Anders, finding that private counsel might give an Anders-type

brief to the client. See 486 U. S., at 439, n. 12. Although more

benign than the original spirit of Anders, it still paints an inaccu-

rate picture of counsel's role. McCoy repeats Anders original

mistake, basing constitutional protections on what counsel could

do as opposed to what an ethical attorney should do. The constitu-

13

tion does not mandate absolute equality, but rather freedom from

unreasoned distinctions. See Ross v. Moffitt, 417 U.S. 600, 612

(1974). While retained counsel may give a client with a frivolous

appeal an Anders brief, it is, at best, a rarity. A proper Anders

brief can involve tremendous work. By one estimate it requires as

much work as ten briefs on the merits. See Pengilly, supra, 9

Crim. Just. J., at 62-63. The paying client will rarely be as

capable of appreciating it as the appellate judge under the Anders

procedure. In almost any circumstance, giving an Anders brief to

a paying client would be a waste of the client’s money.

“Nor does the Constitution require that an indigent be

furnished with every possible legal tool, no matter how

speculative its value, and no matter how devoid of assis-

tance it may be, merely because a person of unlimited

means might choose to waste his resources in a quest of

that kind.” MacCollom, supra, 426 U. S., at 317

(Blackmun, J., concurring in the judgment).

Unfortunately, Anders’ harm does not stop with the reputation

of counsel. Anders’ basic mistrust places burdens on counsel and

courts that are the greatest cost of this decision.

B. The Impossible Dilemma.

Anders’ central difficulty stems from the type of brief it

requires counsel to write before withdrawing: “a brief referring to

anything in the record that might arguably support an appeal.”

Anders, supra, 386 U. S., at 744. The problem with this seem-

ingly innocuous requirement is that it is effectively impossible for

an ethical attorney to write.

A brief is “[a] written statement prepared by counsel arguing

a case in court. It contains a summary of the facts of the case, the

pertinent laws and an argument of how the law applies to the facts

supporting counsel's position.” Black’s Law Dictionary 192 (6th

ed. 1990) (emphasis added). Black’s definition nicely raises the

first problem with the “Anders” brief: what is appointed counsel's

position in the brief when he or she refers to items that “may

arguably support an appeal”?

If counsel believes that the highlighted issues are not frivolous

then the motion to withdraw is deceptive and thus unethical. See

14

ABA Model Rules of Professional Conduct, Rule 3.3 (1992)

(“MRPC”) (candor to tribunal). The only other realistic reading

of an Anders brief is that counsel is asserting that these issues do

not have merit, an interpretation supported by counsel's claim that

the appeal is frivolous. Although Anders looks for issues “that

might arguably support the appeal,” the fact that counsel seeks to

withdraw because there are no nonfrivolous issues cannot hide his

or her opinion of the client's claims.

Identifying specific issues as insufficient to support an appeal

typically is considered improper behavior of a professional

charged to act as “an active advocate in behalf of his client as

opposed to that of amicus curiae.” Anders, supra, 386 U.S., at

744.

“A lawyer should pursue a matter on behalf of a client

despite opposition, obstruction, or personal inconvenience

to the lawyer, and may take whatever lawful and ethical

measures are required to vindicate a client's cause or

endeavor.” MRPC, Rule 1.3, comment (1) (emphasis

added).

“{A] defense lawyer best serves the public, not by acting on behalf

of the State or in concert with it, but rather by advancing ‘the

undivided interests of his client.” ” Polk County v. Dodson, 454

U.S. 312, 318-319 (1981) (quoting Ferri v. Ackerman, 444 U.S.

193, 204 (1979)).

McCoy v. Court of Appeals of Wisconsin, 486 U. S. 429

(1988) illustrates the type of representation Anders encourages.

A Wisconsin rule required an Anders brief “also to include ‘a

discussion of why the issue lacks merit.’ ” /d., at 430. Appointed

counsel who sought to withdraw naturally refused to argue against

his client. See id., at 432, and n. 2. This Court upheld the rule

under Anders. See id., at 441-442. The McCoy Court was

sympathetic to counsel's predicament.

“Appointed counsel, however, is presented with a di-

lemma because withdrawal is not possible without leave

of court, and advising the court of counsel’s opinion that

the appeal is frivolous would appear to conflict with the

advocate’s duty to the client.” /d., at 437.

15

McCoy concluded that the Anders requirement that the court be

informed of counsel's conclusion resolved the dilemma. See ibid.

Practitioners, commentators, and judges have found the

Anders resolution wanting. As one former public defender noted:

“In short, Anders first requires counsel to make an

impossible distinction between the ‘meritless’ and the

‘wholly frivolous.” Having done so, counsel is then

required to perform one or the other of two tasks, both of

which are impossible and unethical: either argue the

merits of claims which are meritless, or explain to the

court why those claims are meritless without taking a

position adverse to the client’s interest.” Pengilly, supra,

9 Crim. Just. J., at 52 (footnote omitted).

Anders places an ethical counsel confronted with a frivolous

appeal between the Scylla of the duty not to present frivolous

claims and the Charybdis of counsel's duty to act as an advocate

on behalf of the client's interest.

“I think it is clear, however, that an attorney confronted

with the Anders situation has to do something that the

Code of Professional Responsibility describes as unethi-

cal; the only choice is as to which canon he or she prefers

to violate.” /d., at 64.

Other practitioners share this experience. A New York Legal

Aid attorney described how many counsel dealt with the dilemma:

“Some have written cursory and conclusory briefs which

at least cannot be said to be advocacy against one’s client,

even though they ar. of little aid to the client or the court

in reviewing arguable errors. Others have written briefs

detailing at length both the facts and the legal issues and

authorities. This, although most helpful to the court,

usually is in effect a brief against the client.” Hermann,

Frivolous Criminal Appeals, 47 N. Y. U. L. Rev. 701,

711-712 (1972) (footnote omitted).

As the author noted, “[hJowever highminded may have been

the Court's intentions [in Anders]... , in practice they cannot be

fulfilled.” /d., at 711. A career public defender observed, “Any

client is entitled to the very best that a lawyer has to offer; his

skill, his knowledge, his experience, and his diligence. But no one

16

has the right to make an intellectual prostitute out of a lawyer.”

Doherty, Wolf? Wolf!—The Ramifications of Frivolous Appeals,

59 J. Crim. L., Criminology & Police Sci. 1, 3 (1968).

Anders’ ethical dilemma has not escaped the attention of

commentators. One commentator noted that while the procedure

approved in McCoy “does reduce the risk that incompetent or lazy

counsel will file a pro forma Anders brief, it intensifies the Anders

anomaly when counsel is conscientious.” | G. Hazard &

W. Hodes, The Law of Lawyering §3.1:304, p. 568 (2d ed. 1996

Supp.). As another authority on professional responsibility

pointed out, “While the court was well-meaning in developing the

Anders procedure, it has proved to promote what amounts to an

inherent conflict between the attorney and client... .” J. Hall,

Professional Responsibility of the Criminal Lawyer 681-682 (2d

ed. 1996): see also C. Wolfram, Modern Legal Ethics 817 (1986)

(“The Anders directives are confusing, if not contradictory.”).

Anders’ ethical problem has caused a reaction in some state

courts.

“The major difficulty with the Anders procedure is its

requirement that an attorney assume contradictory roles if

he wishes to withdraw on the grounds that the appeal

lacks merit... . This Janus-faced approach . . . runs the

risk of alienating and frustrating his client, who can

scarcely be blamed for feeling abandoned and betrayed

* Commonwealth v. Moffett, 418 N. E. 2d 585, 590

(Mass. 1981) (footnote omitted).

The sense of betrayal fostered by Anders will make for a very

strained counsel-client relationship where the court refuses to

grant the Anders motion. “In any case where counsel has unsuc-

cessfully sought to withdraw on the basis that the appeal is

frivolous and without merit he can find himself in a completely

intolerable situation if required to thereafter pursue an appeal.”

State v. McKenney, 568 P. 2d 1213, 1214 (Idaho 1977) (per

curiam).

The Anders Court wants appointed counsel to act like

advocates as opposed to amicus curiae when attempting to

withdraw from an appeal. See Anders, supra, 386 U. S., at 744.

“This is a nonsequitor, however, for if it is assumed that the appeal

17

was in fact without merit, then no lawyer would have a license to

press it forward, as amicus or otherwise.” | Hazard & Hodes,

supra, The Law of Lawyering, at 567. If anything, a conscientious

Anders counsel acts more as amicus than advocate. The brief in

McCoy that spelled out the weakness of the client's position is the

nonpartisan advocacy one could expect from amicus. In any

situation outside of Anders, however, such a brief from an

advocate for a client would be malpractice and would subject

counsel to discipline.

Just as this Court cannot use judicial fiat to avoid the eco-

nomic realities, see Part 1, supra, Anders cannot avoid its ethical

problem. Fairness to the countless diligent and ethical appointed

appellate counsel and their clients requires this Court to address

the ethical dilemma posed by Anders.

(. The Impossible Distinction.

Anders’ problems do not end with its ethical dilemma. It also

requires appointed counsel to split a hair too fine for even skilled,

conscientious attorneys. The Anders Court, in its effort to protect

indigent defendants from incompetent counsel, presumes that

“frivolous” is capable of being defined much more precisely than

reality allows.

Anders requires the brief accompanying the motion to

withdraw to mention “anything in the record that might arguably

support the appeal.” 386 U. S., at 744. This cannot mean every

conceivable issue; the universe of frivolous issues is vast and may

be unlimited. This interpretation is supported by Anders’ qualify-

ing phrase “might arguably.’ These issues must thus come from

a special subset of the set of all frivolous appeals; they are

frivolous, but sufficiently less frivolous than other issues to

warrant bringing to the attention of the Court. This is an unfair

and impossibly impractical distinction.

“In effect, then, the Court must assume three categories of

issues: (1) issues that are wholly frivolous and that do not

have to be considered further by either counsel or court;

(2) issues that are not substantial enough to warrant

concluding that the appeal is anything but wholly frivo-

lous but that nonetheless for, presumably, some other

reason warrant discussion in an Anders brief accompany-

ing a motion to withdraw; and (3) issues that arguably

support a nonfrivolous appeal and whose presence in the

record triggers an obligation on the part of the appellate

court to appoint new counsel to argue those points fully.

“Such hair-splitting among possible arguments hardly

describes an operable test.” Wolfram, supra, Modern

Legal Ethics, at 817-818.

“Frivolous” cannot be defined with great precision. “Frivo-

lousness, like madness and obscenity, is more readily recognized

than cogently defined.” Hermann, supra, Frivolous Criminal

Appeals, 47 N. Y. U. L. Rev., at 705 (footnote omitted). This

Court has never given an, precise definition of “frivolous.”

Anders tosses around concepts such as “wholly frivolous,”

“arguably support the appeal,” and “arguable on the merits”

without giving any further definition to these open-ended terms.

See Anders, 386 U.S., at 744. The closest this Court has come to

fleshing out “frivolous” came in McCoy v. Court of Appeals of

Wisconsin, 486 U.S. 426 (1988).

“The terms ‘wholly frivolous’ and ‘without merit’ are

often used interchangeably in the Anders-brief context.

Whatever term is used to describe the conclusion an

attorney must reach as to the appeal before requesting to

withdraw and the court must reach before granting the

request, what is required is a determination that the appeal

lacks any basis in law or fact.” /d., at 438-439, n. 10.

This is hardly encouraging to an appointed counsel attempting

to split .inders’ hairs. The reality is that every conclusion that an

appeal is frivolous must be taken from the context of that particu-

lar case. “Thus the “wholly frivolous’ concept is not defined by

abstract standards, but rather in terms of counsel's determination

after a conscientious consideration of the record.” Nickols v.

Gagnon, 454 F. 2d 467, 471 (CA7 1971) (Stevens, J.). Without

the guidance of bright-lines or clear definitions, counsel's task is

unduly burdensome, if not impossible.

Anders’ imprecision will also place undue burdens on the

counsel who feels that there are not even any potentially arguable

issues. Briefing an unquestionably frivolous issue would facially

comply with Anders at the risk of concealing “a substantial

19

problem in arecord....” /d., at 472. Yet a brief containing no

arguable issues runs a substantial risk of being labeled as not

complying with Anders.

Anders’ unguided distinction between the merely frivolous

and the frivolous, but potentially arguable, reinforces the two-

faced nature of this brief.

“As a practical matter, however, the brief required in order

to withdraw will be nearly impossible to write. Counsel

must explain why her client's appeal is frivolous, while

simultaneously pointing to all errors in the record mandat-

ing reversal of her client's conviction.” Pritchard, Auc-

tioning Justice: Legal and Market Mechanisms for

Allocating Criminal Appellate Counsel, 34

Am. Crim. L. Rev. 1161, 1166 (1997).

There is a further problem with Anders’ requirement that

counsel point out some potentially arguable issues.

“As the [Anders] dissenters rightly pointed out (and as

frustrated appellate counsel have learned over the years)

if there is an argument of that quality revealed in the

record then the appeal is by definition not frivolous.

Anders briefs therefore necessarily entail legal submis-

sions that counsel regards as frivolous.” | Hazard &

Hodes, supra, The Law of Lawyering §3.1:304, at 567

(2d ed. 1996 Supp.).

Confronted with an impossible distinction, and the unpleasant

task of satisfying the Anders “ceremony,” see Wolfram, supra, at

817, many lawyers will simply refuse to file such briefs and

instead file frivolous appeals. See Pritchard, supra, 34

Am. Crim. L. Rev., at 1166-1167; Hermann, supra, 47

N. Y. U.L. Rev., at 715-716. In this context, a decision to file a

frivolous appeal is an unfortunately rational decision to avoid

Anders.

D. The Unfair Burden.

Anders’ distrust of appointed counsel leads it to transfer the

responsibility of winnowing frivolous appeals from counsel to the

appellate courts. Placing this decision in the hands of the courts

20

burdens already overburdened institutions, and unfairly advances

the interests of the least deserving litigants.

Under Anders, before an appellate court may grant appointed

counsel's motion to withdraw, it must “decide whether the case is

wholly frivolous” only “after a full examination of all the proceed-

ings.” Anders, 386 U.S., at 744. Few duties, if any, can be less

appealing to the intermediate appellate courts than searching the

entire record to find the rare nonfrivolous needle in a haystack of

frivolous claims. Cf. Brown v. Allen, 344 U.S. 443, 537 (1953)

(Jackson, J., concurring). Just as the conscientious Anders brief

can require the work of ten merit briefs, see Pengilly, supra, 9

Crim. Just. J., at 62-63, the detailed review of the entire record

required by Anders places a disproportionate share of the court's

scarce resources on presumptively frivolous appeals.

It is not the standard practice of the appellate courts to comb

the record for all possible issues and raise unmentioned issues for

argument on the merits. An issue defendant failed to raise on the

first appeal in state court may be procedurally barred under federal

habeas corpus. See Murray v. Carrier, 477 U. S. 478, 490-491

(1986). It is not typical for courts to address unraised errors in

criminal appeals, and any attempt to do so would further burden

them. See Warner, supra, 23 Fla. St. U. L. Rev., at 661.

This presents an equal protection problem that some consider

to be the greatest difficulty posed by Anders. The detailed court

review and the sua sponte raising of arguable issues gives Anders

defendants greater privileges than either nonindigent defendants

or the indigent defendants whose counsel submit a brief on the

merits. See id., at 641-642. As Anders is substantially based on

treating the indigent fairly in comparison to the nonindigent

defendant, see, e.g, Anders, supra, 386 U. S., at 457; McCoy,

supra, 486 U. S., at 438, this failure of Anders is particularly

disturbing. See Warner, supra, 23 Fla. St. U. L. Rev., at 662.

The injustice of this inequality is compounded by the uniquely

undeserving recipients of Anders’ largesse. Anders protects a

class of litigants who are overwhelmingly validly convicted of

crimes. Reversals after a court rejects an Anders motion occur

“[e]xceedingly rarely ... .° Wolfram, supra, at 817, n. 35.

Instead of minimizing resources on this undeserving many, Anders

wastes judicial and attorney time on them at the expense of the

21

deserving few. Indeed, some state courts have found hearing

frivolous appeals on the merits to be a more efficient use of their

resources than utilizing the cumbersome Anders procedure. See,

e.g., State v. McKenney, 568 P. 2d 1213, 1214 (Idaho 1977) (per

curiam), Commonwealth v. Moffett, 418 N. E. 2d 585, 590-591

(Mass. 1981).

Under Anders the only party who does not bear the cost of

frivolous appeals is the indigent defendant who wishes to press the

frivolous claims. This creates an economic “tragedy of the

commons” where the frivolous indigent defendants consume

more resources than their cause warrants. See Pritchard, supra, 34

Am. Crim. L. Rev., at 1167-1168. Disposing of frivolous claims

is important; unfortunately Anders transferred responsibility to the

wrong actor. It is the attorney's role to act as gatekeeper against

frivolous litigation; responsibility for identifying and disposing of

such claims should be left to counsel, who are better equipped to

fulfill this function than the courts. Huguley v. State, 324 8. E. 2d

729, 731 (Ga. 1985).

Ill. Anders should be overruled or substantially modified.

When a decision is as heavily criticized and as harmful as

Anders v. California, 386 U. S. 738 (1967) a discussion of its

continued validity under the doctrine of stare decisis is necessary.

Although Anders has had a substantial impact upon criminal

procedure, and has existed relatively undisturbed for over 20

years, it should not be allowed to stand. The decision generates no

reliance interest, it confuses the courts, and it causes considerable

harm to society and the indigent defendants it is meant to protect.

Any protections for indigent defendants with potentially frivolous

claims deserve a sounder, less expensive foundation.

While stare decisis is an important doctrine serving a useful

social policy, it does not have the same force as a statute or the

Constitution. The judiciary’s role in our society is as an inter-

preter of laws. See The Federalist No. 78, at 467 (A. Hamilton)

(Rossiter ed. 1961). Therefore, stare decisis, while respected,

cannot deter this or any other court from its ultimate duty of

interpreting the law. Stare decisis is the law’s servant, not its

master.

This Court has recognized that the doctrine does not have the

force of a rule of law and may be overridden when appropriate.

“Whether it [stare decisis] shall be followed or departed from is

a question entirely within the discretion of the court... .” Hertz

v. Woodman, 218 U.S. 205, 212 (1910). While it will be followed

in most cases, this is simply “a policy judgment that ‘in most

matters it is more important that the applicable rule of law be

settled than that it be settled right.” Agostini v. Felton, 521 U.S.

203, 235 (1997) (quoting Burnet v. Coronado Oil & Gas Co., 285

U.S. 393, 406 (1932) (Brandeis, J., dissenting)). Therefore, this

Court has “treated stare decisis as a ‘principle of policy,’ Helver-

ing v. Hallock, 309 U.S. 106, 119 (1940), and not as an ‘inexora-

ble command.’ * Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

63 (1996) (quoting Payne v. Tennessee, 501 U. S. 808, 828

(1991)).

Perhaps the most important factor in limiting stare decisis is

the ability of other bodies to overturn this Court’s decisions. This

Court is particularly reluctant to overturn its own statutory

interpretations, because Congress “remains free to alter what [this

Court has} done.” Patterson v. McLean Credit Union, 491 U.S.

164, 172-173 (1989).

Constitutional cases are another matter. Because * ‘correction

through legislative action is practically impossible,’ ~ constitu-

tional cases are more prone to re-examination than statutory cases,

Payne v. Tennessee, supra, 501 U. S., at 828 (quoting Burnet,

supra, 285 U. S., at 407 (Brandeis, J., dissenting)). Given the

necessary tension between our democratic ideals and judicial

review under the Constitution, see Rehnquist, The Notion of a

Living Constitution, 54 Tex. L. Rev. 693, 695-696 (1976), this

Court must be ready to reexamine its constitutional decisions in

order to maintain the democratic nature of our society.

Refusing to reexamine an incorrect opinion that the public

cannot overturn is corrosive to this Court’s public respect. Thus

the decision to uphold the incorrectly decided line of cases under

Lochner v. New York, 198 U.S. 45 (1905) until 1937 helped to

damage this Court as a public institution. See Planned Parent-

hood of Southeastern Pa. v. Casey, 505 U. S. 833, 861-862

(1992). “Of course, it is embarrassing to confess a blunder; it may

23

prove even more embarrassing to adhere to it.” United States v.

Bryan, 339 U.S. 323, 346 (1950) VJackson, J., concurring).

This Court is also more willing to reexamine decisions that

have developed contradictions over time. Thus, this Court will

not allow stare decisis to preserve inconsistent or difficult to

administer decisions. See Patterson, supra, 491 U. S., at 173.

Similarly, if the conditions that motivated a decision change, then

there is good reason to overrule the prior decision. See Casey, 505

U.S., at 855, 862.

The fact that stare decisis is not a “ ‘mechanical rule’ ” is

demonstrated by the hierarchy wishin the doctrine. While some

decisions are virtually etched in stone, others warrant more

flexibility. For those cases less worthy of stare decisis, “ ‘the

process of trial and error, so fruitful in the physical sciences, is

appropriate also in the judicial function.’ ” United States v. Scott,

437 U.S. 82, 101 (1978) (quoting Burnet, supra, 285 U.S., at 408

(Brandeis, J., dissenting)).

The most important consideration when examining the stare

decisis value of a decision is the public's reliance interest in that

precedent. Staure decisis benefits society and legal institutions

“because it promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived integrity of

judicial process.” Payne, supra, 501 U. S., at 827. Where these

interests are greater, stare decisis considerations are correspond-

ingly more important. Thus, “stare decisis concerns are at their

acme in cases involving property and contract rights.” State Oil

Co. v. Kahn, 522 U.S. 3, 20 (1997); Payne, supra, 501 U. S., at

828.

There is no reliance interest in Anders. Reliance is at its

weakest in cases involving “procedural and evidentiary rules.”

Payne, supra, 50\ U. S., at 828. Anders’ particular lack of

reliance interest can be seen by examining the analogous field of

retroactive application of statutes.

The retroactive application of statutes is generally disfavored.

See Landgraf v. USI Film Products, 511 U.S. 244, 268 (1994).

However, when the statutory change effects a rule of procedure,

then the change generally may be applied to a pending case

24

because “they regulate secondary rather than primary conduct.”

Id., at 275. “Primary conduct” is the conduct of people in their

ordinary course of life. In Landgraf, this was “the discriminatory

conduct of respondent's agent... .” /d., at 283. In the present

case, this would be Robbins’ car theft and the killing of his former

roommate.

The “secondary conduct” is the adjudication, in this case the

defendant's trial. Decisions regarding trial procedures, such as

evidence to be heard at sentencing, thus do not invoke the reliance

interest warranting stare decisis protection. See Payne, supra,

501 U.S., at 828. The Anders procedure is even further removed

from defendant's conduct. It is a “prophylactic framework,” see

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), that regulates

appellate procedure, which is so far removed from defendant's

initial conduct it could be deemed “tertiary conduct.” No one

regulates their affairs in reliance on Anders’ rule of appellate

procedure.

Another important consideration in deciding whether to

uphold a decision is how well the precedent guides those who

must apply it. A precedent that proves to be confusing and

difficult to apply deserves much less stare decisis protection. See

United States v. Dixon, 509 U. S. 688, 712 (1993). “[W]hen

governing decisions are unworkable or are badly reasoned, ‘this

Court has never felt constrained to follow precedent.” ” Payne,

supra, 501 U. S., at 827 (quoting Smith v. Allwright, 321 U.S.

649, 665 (1944)).

Anders’ intrinsic ethical conflict and the considerable diffi-

culty with finding possibly arguable, but still frivolous issues,

makes a brief comporting with the literal rule and spirit of Anders

practically impossible to write for conscientious, ethical attorney.

See supra, at 13-19; see Pengilly, Never Cry Anders: The Ethical

Dilemma of Counsel Appointed to Pursue a Frivolous Appeal, 9

Crim. Just. J. 45, 52 (1986); Pritchard, Auctioning Justice: Legal

and Market Mechanisms for Allocating Criminal Counsel, 34

Am. Crim. L. Rev. 1161, 1166 (1997). Anders left key terms such

as “wholly frivolous” and “arguably support the appeal” unde-

fined, a failing this Court has never remedied. See supra, at 18.

It is unfortunately too easy to sympathize with the complaint of

one attorney that “[a]fter reading [Anders] carefully, however, |

25

still had no idea what was expected of me or any other appointed

attorney in a similar position.” Pengilly, supra, 9 Crim. Just. J.,

at 47. As one treatise somewhat undiplomatically put it: “such a

document, known as an Anders brief, is an anomaly, and demon-

strates the Court's isolation from the realities of practice.” 1 G.

Hazard & W. Hodes, The Law of Lawyering §3:1:304, p. 567 (2d

ed. 1996 Supp.)

Anders is no easier on the courts that must administer it. A

Florida appellate judge, in her survey of the courts implementation

of Anders, noted that dealing with Anders is “{a] continuing

source of frustration for the appellate judge .. . .”. Warner, Anders

in the Fifty States: Some Appellants’ Equal Protection is More

Equal than Others’, 23 Fla. St. U. L. Rev. 625, 625 (1996).

Anders’ \ack of clarity is reflected in the many different ap-

proaches courts take to implementing the decision.

“Ten states have rejected the Anders procedure.” /d., at 642.

The judicial abandonments of Anders have invoked various

reasons and applied different means to avoid this decision. The

Idaho Supreme Court simply refused to allow counsel to withdraw

from frivolous appeals, finding that such appeals can be disposed

of more fairly and efficiently through the traditional briefing

process than under Anders. See State v. McKenney, 568 P. 2d

1213, 1214 (1977) (per curiam). The North Dakota Supreme

Court found Anders violated state constitutional law depriving

defendant of his state right to appeal. See State v. Lewis, 291

N. W. 2d 735, 738 (1980). Its solution was to appoint new

counsel whenever original counsel claimed the appeal was

frivolous. /bid. Even though this might force some counsel to file

briefs that they believed frivolous, this consequence was accept-

able due to the substantial court time saved by abandoning Anders.

See ibid. Unfortunately, the Court also concluded that it would

still impose sanctions for prosecuting a frivolous appeal. /d., at

738-739.

The Massachusetts Supreme Court effectively abandoned

Anders in Commonwealth v. Moffett, 418 N. E. 2d 585 (1981).

The Court's decision was based on both the “Janus-faced ap-

proach” of Anders briefs, and the administrative problems of

dealing with Anders. See id., at 590. If counsel finds it “abso-

lutely necessary” to be disassociated from frivolous arguments in

the brief, the court allowed ccunsel to indicate this in a preface to

the brief, while requiring this brief to be served on the client. /d.,

at 591-592.

Perhaps the most thorough examination of Anders came from

another court that withdrew from the decision, the Oregon

Supreme Court. In State v. Balfour, 814 P. 2d 1069 (1991), the

Oregon high court reasoned that after Penson v. Ohio, 488 U.S.

75 (1988), Anders was not a mere set of guidelines, but instead “a

stringent benchmark against which to gauge state procedures.”

Balfour, 814 P. 2d, at 1076. The Balfour Court nonetheless

reaffirmed its preeminence as the arbiter of legal ethics within the

state except when such practices implicated federal constitutional

rights. /d., at 1078. Therefore, it rejected Anders as the only

permissible solution to the problem of frivolous appeals by

indigent detendants. /bid. By preventing counsel from withdraw-

ing, the constitutional mandate for 4m “rs was gone; Anders only

applied to motions to withdraw. ” + 1079. This allowed

counsel to avoid the unethical requ. ent of having to argue

frivolous issues. Counsel would simply file a statement of the

facts and jurisdiction of the court. /d., at 1080. If the defendant

desired to raise issues, counsel would assist in preparing them, but

would not have to sign that part of the brief, avoiding any ethical

problem with advancing frivolous issues. /bid. This convoluted

brief would thus resolve Anders’ conflict between advocacy and

the prohibition against frivolous appeals. See id., at 1081.

Georgia, Mississippi, and New Hampshire have also aban-

doned Anders in decisions. See Huguley v. State, 324 8. E. 2d

729, 731 (Ga. 1985); Killingsworth v. State, 490 So. 2d 849, 851

(Miss. 1986) (en banc); State v. Cigic, 639 A. 2d 251, 254 (N.H.

1994). Other courts have abandoned Anders informally. These

states include: Hawaii, Kansas, Maryland, New Jersey, Alaska,

and Nebraska. See Warner, supra, 23 Fla. St. U. L. Rev., at 651.

There is little consistency among the jurisdictions that attempt

to apply Anders. California's interpretation, People v. Wende, 25

Cal. 3d 436, 600 P. 2d 1071 (1979), is perhaps the closest to literal

compliance with Anders. See Pengilly, supra, 9 Crim. Just. J., at

§7-58. The California Supreme Court noted that under this

procedure, counsel could obtain greater review for the client than

when counsel raised specific issues in a brief on the merits. See

27

Wende, 25 Cal. 3d, at 1078, 600 P. 2d, at 1075. The Court felt

confident that attorneys would not shirk their professional

responsibility by filing false Anders briefs, ibid., showing more

respect for the profession than the Anders majority.

Following this Court's example in Anders, the California

Supreme Court provides little detail as to what the withdrawal

brief should contain, other than “a statement of the facts and the

applicable law ....” See People v. Feggans, 67 Cal. 2d 444, 447,

432 P. 2d 21, 23 (1967); Wende, supra, 25 Cal. 3d, at 440, 600

P. 2d, at 1073. Other states, however, are more willing to inform

counsel what the brief should obtain. Arkansas provides particu-

larly detailed guidance, requiring that the brief:

“shall contain an argument section that consists of a list of

all rulings adverse to the defendant made by the trial court

on all objections, motions and requests made by either

party with an explanation as to why each adverse ruling is

not a meritorious ground for reversal. The abstract section

of the brief shall contain, in addition to the other material

parts of the record, all rulings adverse to the defendant

made by the trial court.” Rules of Arkansas Supreme

Court and Court of Appeals, Rule 4-3(j)(1).

This level of detail is not required of briefs on the merits, and

probably deters the filing of Anders briefs. See Warner, supra, 23

Fla. St. U. L. Rev., at 653, n. 223. A somewhat less detailed, but

still explicit regulation was upheld by this Court in McCoy v.

Court of Appeals of Wisconsin, 486 U.S. 429, 430 (1988). Other

states are much less focused, allowing Anders to be governed by

local rules of court, see Warner, supra, 23 Fla. St. U. L. Rev., at

654, n. 225.

One consequence of the confusion surrounding Anders is a

considerable variation in how courts review Anders motions. The

Warner survey of Anders found that:

“Fourteen courts, or twenty-one percent of those respond-

ing, indicated that they do not comb the record to point

out arguable appellate issues. Others reported that they

point out only issues constituting clear error, not merely

issues of arguable merit. When unaddressed issues are

found, the majority of courts simply order rebriefing by

28

appointed counsel. However, a substantial number of

courts order the appointment of new counsel to file new

briefs on this occasion. And, in what appears to be a

practice contrary to the holding of Penson v. Ohio, some

courts address the issues sua sponte without any rebrief-

ing. When issues of arguable merit are found by the court

in its review, whether to appoint new counsel or to allow

rebriefing by withdrawing counsel also varies among the

districts within some states.” /d., at 656.

Anders is a mess. The socially useful experimentation of

federalism is one thing; the widespread repudiation and inconsis-

tent application of Anders’ vague and inconsistent mandates is

another. Something must be done about Anders, and stare decisis

should not stand in the way.

Ideally, Anders should simply be overruled. It wastes scarce

judicial resources on behalf of the least deserving litigants at the

expense of indigent defendants with valid claims. It is premised

upon a degrading appraisal of the appointed bar and a cynical

appraisal of retained counsel. By virtue of its unsolvable ethical

dilemma and logically untenable distinctions, Anders requires a

brief from counsel that is as impossible to write as it is degrading.

All of these problems limit judicial efforts to free up its scarcest

resources, the appellate courts.

Overruling Anders will not leave indigent defendants without

recourse if appointed counsel improperly withdraws. A claim for

ineffective assistance of appellate counsel would still be available

to appellants who are actually prejudiced. See Evitts v. Lucey,

469 U. S. 387, 397-398 (1985). “The ability to raise ineffective

assistance claims based in whole or in part on counsel’s proce-

dural defaults substantially undercuts any predictions of

unremediated manifest injustice.” Murray v. Carrier, 477 U. S.

478, 496 (1986). While such relief may not be easy to obtain,

appeals believed frivolous very rarely contain reversible issues.

See supra, at 21. Allowing counsel to act as gatekeeper would

free resources to allow other defendants with briefable issues to

receive justice.

Overruling Anders does not abandon the indigent defendant

whose counsel seeks to withdraw. Some procedure should guide

the court’s discretion to allow counsel to withdraw, but it should

29

be less cumbersome, divisive, and suspicious than Anders.

Counsel should not be required to submit the impossible Anders

brief, but may instead write a letter like the one accepted by the

California Court of Appeal in Anders. The letter should state that

there is no merit to the appeal, that counsel came to this conclu-

sion after studying the record, and that counsel informed defen-

dant of this conclusion. See Anders v. California, 386 U. S. 738,

739-740 (1960). Defendant should receive a copy of this letter,

and should have the option of filing a pro se brief, or making a

request to the court to find substitute counsel. The request may

include any potentially appealable issues defendant wishes to

bring to the court's attention. The court may, but does not have to,

grant defendant's request for new counsel. Courts would be free

to develop more stringent policies, or even to forbid counsel from

withdrawing from frivolous appeals.

This procedure would be efficient, by avoiding Anders’

wasteful duplication of resources. It would also be easier for

counsel than writing the impossible Anders brief, while still

protecting defendant. Although the protection is less than that

found in Anders, the interests Anders purports to protect deserve

less effort than that decision requires. Attorneys can be trusted to

act professionally when withdrawing from cases. An erroneous

withdrawal that results in the undeserved affirmance of a convic-

tion is exceedingly rare. See supra, at 21. The harm to society

and defendants from Anders’ wasteful procedure is greater and

more certain. In the end, everyone benefits by abandoning

Anders, for a more trusting, less cumbersome procedure.

If this Court refuses to overrule or modify Anders, it should

nonetheless “decline to go beyond it, by even a fraction of an

inch.” Silverman v. United States, 365 U.S. 505, 512 (1961).

The Ninth Circuit's decision to void California’s Wende procedure

is such an improper extension of Anders. A wrong tule is

necessarily a “new rule,” not dictated by precedent. Cf. Conn v.

Gabbert, 526 U.S. ___ (No. 97-1802, April 5, 1999) (slip op., at

7) (holding the nonexistence of a right “pretermit[s] the question

of whether such a right was ‘clearly established’ as of a given

day”). The Ninth Circuit's decision was thus at least barred under

Teague v. Lane, 489 U. S. 288 (1989).

30

“Justice, like other goods, is scarce.” Pritchard, supra, 34

Am. Crim. L. Rev., at 1191. Anders has created an unworkable

standard in pursuit of an unnecessary goal, “squandering judicial

resources with little offsetting benefit to anyone.” Sandin v.

Conner, 515 U.S. 472, 482 (1995). This Court should trust courts

and counsel to find the best way of maximizing justice with their

necessarily limited resources.

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit

should be reversed.

April, 1999

Respectfully submitted,

KENT S. SCHEIDEGGER

CHARLES L. HOBSON®

ffvrormeys for 4micus Curiae

eval Foundation

* Attorney of Record