I just read Anders v California for the first time (ever, or in a long time) in preparation for writing this post. You always hear about Anders briefs, and I have some vague notion that it’s what an appellate lawyer files when they want to tell the court that there is nothing worth appealing in their client’s case. Heck, I didn’t even know (or remember) that Anders won, by reverse and remand – which makes me fairly certain I’ve never carefully analyzed the opinion.
The gist of it is that sending a letter to the court saying,
“I will not file a brief on appeal, as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders, and have explained my views and opinions to him. . . . [H]e wishes to file a brief in this matter on his own behalf,"
is not enough. The case then outlines the proper procedures, which are not the topic of this post, so ‘nough said about that.
The dissent has an interesting tidbit. Here are Potter “I Know It When I See It” Stewart’s thoughts on the issue of whether a no merit letter to the court should suffice:
The quixotic requirement imposed by the Court can be explained, I think, 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.
That is an assumption to which I cannot subscribe.
I cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty.
If the lawyer can be trusted in all things, then a letter stating his view that there are no issues to appeal would be good enough. Fair point. Now here’s a snippet from a recent Texas appellate court memorandum opinion affirming a six and a half year DWI sentence where an Anders brief was filed for appeal:
[The] attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.
The case met the other requirements of Anders, and thus the defendant loses. He had a professional evaluation of the record, so that’s that. Then I noticed the footnote:
We did note, however, errors in appellate counsel’s brief of a nature suggesting that more care should have been taken in using prior briefs as a basis for preparing the current brief.
Counsel stated in his preliminary statement of this case that this was an aggravated robbery case instead of a DWI—but then later in the same sentence states the jury found Roark guilty of DWI (the correct offense).
This misstatement of aggravated robbery also occurs on page three of counsel’s brief. Counsel further states the offense took place June 28, 2004, when in fact it occurred January 28, 2004.
Also, counsel states there was no motion for directed verdict based on insufficient evidence; however, trial counsel did move for a directed verdict based on insufficient evidence that [the defendant] was driving a vehicle as opposed to just being in his yard when he was arrested.
Some of these errors are piddling, inconsequential. The first one simply shows that the attorney has filed these in the past, but is unaware of Microsoft Word’s handy “find and replace” function. Practitioner tip: use control-H and then you don’t have to replace every single “Aggravated Robbery” with “DWI” one at a time.
Remember, the court’s footnote in no way disapproved of using a prior brief as a template, so that’s not a problem. It’s all that pesky wrong-name-of-offense that causes a few seconds time to double take, and then giggle to themselves about the sloppiness of the lawyer. Judicial time is valuable; don’t slow them down.
Second error, simple typo.
The third goof is slightly more troubling. Currently, there is no Word Processor on the market that will be able to evaluate whether or not this client’s lawyer asked for a directed verdict, while your last client’s lawyer did not. But we affirm the conviction because the defendant “had a professional evaluation of the record”.