What I’m Doing at Work: Not today, of course, but yesterday I was working on an Anders case. You may have seen Bashman’s post here about a case where counsel filed an Anders brief on behalf of a client names Anders. Even if you don’t know what an Anders brief is, you could probably at least figure out that it’s kind of like a defendant named Miranda claiming he wasn’t read the Miranda warnings.
The basic deal is this. In the ’60s, after the Supreme Court held that criminal defendants have a right to counsel on their first appeal of right (Douglas v. California, I think), lawyers were faced with a dilemma: What if the appeal is frivolous? If there’s no right to counsel, a lawyer could say that this appeal is a sure-loser and tell the defendant he won’t waste his time, have fun in jail. But post-Douglas, these attorneys were obligated to at least file something. At trial, the lawyer can argue reasonable doubt and cross-examine the government’s witnesses even if he or she knows the defendant has no chance. But on appeal, the attorney can’t argue that the conviction was contrary to law if it wasn’t — the lawyer still has a duty of candor to the tribunal. So what is the recourse for a lawyer here?
The Supreme Court answered in Anders v. California, 386 U.S. 738 (1967). The attorney should state that he or she has reviewed the record and found no meritorious grounds for appeal. And then, the attorney can present any issues — even facially frivolous issues — to the court for review, with the understanding that the attorney isn’t signing his or her name to meritless arguments. (Normally, of course, arguing something that is totally without merit can cost an attorney all kinds of sanctions.) The court then takes it upon itself to scour the record for anything supporting the appeal. (Another neat tidbit: unlike most other cases, where the client has to speak through counsel, in an Anders cases the defendant-appellants can file a supplemental brief raising any issues they want.)
I find Anders cases interesting on several levels. First of all, until I started this job, I had never heard of the case, despite taking three or four classes in law school where it could have come up. A bigger rant about everything that’s wrong with law school will have to wait, but one thing I don’t like is that in the case method, every case seems to be incredibly close. I understand the pedagogical value of that, but (a) I think it can lead students to become ultra-Realists, because they see a bunch of 5-4 decisions with very little context for them so they start to think that the answer is whatever the judge wants it to be — I don’t have time to flesh this out more, but I saw it happen; (b) It doesn’t make clear to students that so many cases (at least on the lower courts) are pretty easy and decided unanimously — a subset of the first point, I suppose; and (c) it doesn’t show that some cases, like Anders, can be so easy that they create problems for the advocate.
Second, working on an Anders case for the court is, I think, an approximation of being an appellate lawyer. I have to look through the record and attempt to find any grounds that might support an appeal. We’re pragmatic about it, though. Every time the lawyer objected at trial doesn’t turn into an appeal over the admissibility of certain evidence. Some issues aren’t even arguably arguable.
The other thing is that nowadays in the federal system, with so few trials, there’s not much to argue in well over 90% of the cases. When the defendant pleads guilty, pretty much the only things to appeal are (a) whether the district court followed the rules in accepting the plea — ensuring it was knowing and voluntary, and (b) whether the application of the Sentencing Guidelines was correct. And, most U.S. Attorney’s offices include waivers of appellate rights in the standard plea agreement, so even decent issues are waived. (Note: a few things aren’t covered by the waivers and you can argue it shouldn’t be enforced, so it might not eliminate the appeal, but it does streamline it.)
Anyway, Anders is an interesting case that acknowledges how easy most cases are. Most of the ones I’ve worked on have been fairly routine, but the one I have now at least presents an issue or two worthy of discussion. If you plead guilty and waive your right to appeal, that’s about the best you can hope for.
What I’m Doing at Home: Cleaning my apartment, shopping for a computer. Both hassles.
What I’m Reading: Catching up on magazines, as usual. I’ve finally gotten into 2004 with most of them. In between books right now.
What I’m Watching: I taped Conan O’Brien’s appearances in Toronto last week and watched those. I like Conan, and these were some good shows. He created a bit of a fuss in Quebec by making fun of the folks there via recurring puppet character Triumph, the Insult Comic Dog. (Typical joke: “So you’re French and Canadian? That means you’re obnoxious and dull.” “I need a translator because the only French I know is ‘I surrender!’”) I will note, though, that the Quebecois who talked to the dog seemed to be laughing.
What I’m Listening To: Little of this, little of that. I’ve had “Eggman” from Paul’s Boutique by the Beastie Boys in my head. A little Randy Newman, a little Pretenders. Am I purposely trying to be eclectic? Yeah, a little.
What I’m Thinking About: My move coming up this summer. I’ve been reading guidebooks and looking at maps and news from there. I’m not sure if I’m just getting cabin fever here or if I’m getting tired of this job after my stupid work issue last week or what. But I’m starting to look forward to my next job (an elbow clerkship, for you late-comers).
What I’m Not Thinking About: I’m trying to get into a state of denial about the Democratic race. Surely they’re not dumb enough to nominate Kerry, right? I mean, they wouldn’t intentionally do something that ridiculous, would they? Surely not. Serenity now.
Factoid About Me: How about this: I once sat in a football stadium full of people as Billy Graham led the assembled masses in prayer. No, I didn’t go to a crusade — but wouldn’t that have changed the way some of you saw me! I was at the first game played in that stadium, and Graham came to “bless” it.
Speaking of prayer and large groups, that reminds me of a story from high school. At my graduation ceremony, one of the student speakers “spontaneously” (i.e., without official approval) asked the crowd to stand and led them in a recitation of the Lord’s Prayer. I sat silently, because I thought this was inappropriate in several respects. We were in the basketball arena, and there were a lot of people (my class was about 200). As it happened, my seat was on the end of a row, so half the gym could clearly see me sitting there while they all stood and prayed. (If it wasn’t “all,” it was darn near all.) My mother proclaimed herself “mortified” at my gesture.
