The Anders Brief, State v. Cigic, and Does Cigic Deliver What it Promises?
| Citado como | Vol. 53 No. 1 Pg. 0016 |
| Páginas | 0016 |
| Año de Publicación | 2012 |
2012 Spring, Pg. 16. THE ANDERS BRIEF, STATE V. CIGIC, AND DOES CIGIC DELIVER WHAT IT PROMISES?
Volume 53, No. 1
Spring 2012
What is a court-appointed lawyer supposed to do when a criminal defendant insists on pressing an issue the lawyer believes has a low chance of success or may be frivolous?
On one side is fidelity to the client and the duty of "zealous appellate advocacy."(fn2) On the other is the duty to refrain from frivolous arguments.(fn3) "Representing the defendant at trial, the attorney violates no obligation of professional responsibility in forcing the state to prove its case, no matter how clear the defendant's guilt.... On appeal, on the other hand, the defendant is presenting a challenge and the lawyer has an ethical obligation not to assert frivolous claims."(fn4) While a privately retained lawyer may have the luxury to refuse the representation, an indigent client has a right to counsel on appeal.(fn5) Nonetheless, "the line between a frivolous appeal and one which simply has no merit is fine"(fn6 )"if indeed it exists at all."(fn7)
New Hampshire and other states have largely resolved the procedural aspects, but many substantive questions remain: Whose rules apply in federal appellate courts? What constitutes "frivolous," both in the context of a jury already having found the client guilty beyond a reasonable doubt, and also in the context of plausible but unlikely constitutional arguments? How many arguably frivolous arguments can a lawyer make in one case? What level of risk do criminal defense lawyers face, especially in light of precedent suggesting they will be treated deferentially in these matters? There are answers to some of these questions, but others are frustratingly ambiguous.
I. ANDERS V. CALIFORNIA
In Anders v. California,(fn8) the United States Supreme Court set forth its preferred procedure for appeals that do not state any meritorious issues,(fn9) reduced here to the procedural essentials:
* Appellate counsel makes a "conscientious examination" of the record;
* If the lawyer determines the appeal is "wholly frivolous," s/he moves to withdraw;
* Counsel also files an "Anders brief" referring to anything in the record that might arguably support the appeal;
* The defendant gets a copy of the Anders brief and has an opportunity to submit a pro se brief;
* The appellate court independently examines the entire record;
* If the court determines the appeal is wholly frivolous, it grants counsel's motion to withdraw and dismisses the appeal;
* If in its review of the record the court finds any arguable issues, it appoints new counsel to brief them.
II. PROBLEMS WITH ANDERS
Although it has its defenders,(fn10)Anders been widely criticized(fn11) because it creates conflicts for all actors in the criminal justice system. It requires defense lawyers to "assume contradictory roles,"(fn12) argue against their own clients,(fn13) and to "brief the unbriefable."(fn14) It flips the role of prosecutors by relieving them of their duty to defend the trial court's judgment, and instead requires them to concur with the defendant's appointed lawyer.(fn15)
For defendants, it makes them feel alienated, abandoned, and frustrated. It looks to them like their lawyer is in league with the government,(fn16) and reinforces the unfortunate view that public defenders are not fully on their side.(fn17) It inherently causes defendants prejudice because requiring the lawyer to withdraw and file an Anders brief "sends a tacit message that [the lawyer] considers the issues meritless."(fn18) It then requires the defendant, who presumably is not expert in criminal representation,(fn19) to carry an appellate "double burden" - first to convince the court there is enough merit to warrant appointment of a second lawyer, and then to convince the court to reverse the conviction.(fn20) Courts have even suggested the Anders procedure does not adequately protect rights.(fn21)
For courts, Anders puts them in the role of advocate rather than judge.(fn22) It causes additional work, as they are required to make a frivo-lousness determination,(fn23) and also review the entire record to search for issues, rather than just those portions referred to the court by counsel.(fn24) It also requires courts to review a pro se filing, which is often more laborious than lawyer-written work, despite the availability of an attorney already familiar with the case. Moreover, the review is inefficiently "fragmented" because the court must first consider the withdrawal motion, later the pro se brief, then later the record, and then possibly the brief by second appointed counsel.(fn25)
For the public, the Anders procedure is less efficient and therefore more costly(fn26) It potentially requires appointment of two lawyers when one, already familiar with the case, would have served the purpose or protecting the defendant's rights.(fn27) It also mandates review of the entire record, rather than just the portion relevant to the argued issues which would normally occur.(fn28)
In short, the Ariders procedure does not serve anyone well, prompting the Idaho Supreme Court to call it an "impractical and illogical procedure."(fn29)
III.STATES REJECT ANDERS
Anders at first appeared to be the mandated procedure,(fn30) but the United States Supreme Court has since held that it is a floor, not a ceiling, and that states are free to create alternatives.(fn31)
In 1977 Idaho announced it would not follow Anders, but rather would require counsel choose the strongest argument, however weak, and argue it as forcefully as possible. This preserves "the integrity of the attorney-client relationship"(fn32) and the adversarial nature of criminal appeals, which "is much to be preferred over a process in which the appellate judge feels obliged to act as a lawyer and the appellate lawyer feels constrained to rule as a judge."(fn33) Since then many jurisdictions have rejected Anders (fn34) and adopted some formulation of the "Idaho rule."
IV. NEW HAMPSHIRE RESOLVES ANDERS PROCEDURE - STATE V. CIGIC
In 1994 New Hampshire Supreme Court joined that trend in State v. Cigic (fn35) writing that "the efficiency and integrity of the appellate process are better ensured by the adoption of a modified Idaho rule."(fn36)
The court recognized that rejecting Anders would require tolerating occasional frivolous appeals.(fn37) It suggested however they would be "extremely rare" because it is not frivolous to merely believe one's position will not win, it is not frivolous to make "a good faith argument for an extension, modification or reversal of existing law," and it is not frivolous to challenge the sufficiency of evidence used to convict.(fn38)
For reasons that have been thoroughly discussed on these pages,(fn39 )and drawing largely from ABA standards, the New Hampshire Supreme Court set forth in detail what must be done when the lawyer thinks a criminal appeal may be frivolous:
* Counsel tries to talk defendant out of the appeal;
* If defendant decides to pursue it, counsel files a notice of appeal including all arguable issues;
* A transcript is prepared with a copy to the defendant;
* Counsel reviews the complete record and again determines whether the case has merit;
* If the lawyer still thinks the appeal is frivolous, counsel again tries to talk the defendant out of it;
* If the client nonetheless wants to go forward, the lawyer files a brief arguing the issues as well as possible(fn40);
* The court reviews in the normal course.
The New Hampshire Supreme Court acknowledged that "our adoption of this procedure may, on rare occasions, require appellate counsel to assert a frivolous issue before this court. Accordingly, we create an exception to New Hampshire Rule of Professional Conduct 3.1 for such conduct."(fn41)
The Cigic court "caution [ed], however, that under the procedure ..., appellate counsel is still otherwise absolutely obliged not to deceive or mislead the court. Such deception would include a misstatement of the facts of the case, or a misapplication of the law to those facts. In addition, counsel must not deliberately omit facts or authority that directly contradict the argument."(fn42)
Thus Cigic appears to give criminal defense lawyers a free pass on frivolous arguments. But a review of files at the New Hampshire Supreme Court Attorney Discipline System reveals that over the last decade, New Hampshire lawyers have from time to time been cited on Rule 3.1 grounds, with at least two in a criminal defense representation.
V. WHOSE RULES APPLY TO APPEALS IN THE FIRST CIRCUIT
For appeals in the First Circuit, a New Hampshire lawyer can reasonably expect New Hampshire's ethics rules - and therefore Cigic - applies, if the lawyer's principal office is in New Hampshire, and especially if the case originated in the New Hampshire District.(fn43)
VI. SUFFICIENCY ARGUMENTS RARELY FRIVOLOUS
The ethics rule barring frivolous arguments largely carves out criminal defense. It provides that although" [a] lawyer shall not bring or defend a proceeding... unless there is a basis in law and fact for doing so that is not frivolous,... [a] lawyer for the defendant in a criminal proceeding.. .may nevertheless so defend the proceeding as to require that every element of the case be established."(fn44) Cigic nearly reiterates this, but adds a caveat. Cigic says: "Provided that appellate counsel has a good faith basis for doing so, it would... not be frivolous... to challenge the sufficiency of the evidence used to convict the defendant."(fn45) Thus, as long as there is a "good fath basis," a criminal defense lawyer may make a frivolous argument. This standard begs the...
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