Anders Brief for Dummies

The U.S. Court of Appeals for the 5th Circuit (Federal) issued a housekeeping ruling today (US v. Garland) targeting counsel that wish to withdraw from a case by filing an Anders brief. The Court admonished counsel that they must not simply file a conclusory brief without any “meaningful discussion of the district court proceedings or any potential issues for appeal.” Reciting the Supreme Court’s holding in Anders v. California, 386 U.S. 738, 744 (1967), the court reminded counsel:

Rather than simply filing a brief that is little more than a no-merits letter, ‘counsel should, and can with honor and without conflict, be or more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.’

To assist future counsel that wish to withdraw and file an Anders brief, the Court directs them to its website, on which it has posted guidelines and a checklist for counsel to follow.

The Fifth Circuit’s website provides a detailed checklist and outline for Anders briefs for guilty pleas and for bench or jury trials. See http://www.ca5.uscourts.gov. The guidelines and checklist are under the ‘Attorney Information Section.'  This checklist is designed to assist counsel in preparing a brief that will satisfy the standards of Anders in this circuit.

The Court goes on to state that “if counsel submits a brief meeting this standard, we will no longer independently scour the record looking for nonfrivolous issues.” There you have it. Use the court’s template and you can’t go wrong. Appellate attorneys might also find the checklist helpful in filing Anders briefs to the state courts of appeals.

Anders Brief - How to Avoid a Frivolous Appeal

What do you do when you believe that there exist no grounds for appeal to your indigent defendant's conviction? Do you file an appeal anyway, knowing that your points of error are frivolous and risk running afoul of your state bar's ethical obligations? Do you simply file no appeal at all and leave your client high and dry? The recently reported CCA case of Garner v. State, reminds us what to do.

The solution is the Anders brief, named after the Supreme Court case of Anders v. California, 386 U.S. 738 (1967) and elaborated upon in Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). In Anders, the Supreme Court held that the responsibility to determine whether an appeal is frivolous in nature lies with the appellate court - not with the attorney of record. In order to ensure effective counsel on appeal for indigent defendants, without requiring counsel to breach ethical prohibitions against making frivolous arguments, the Supreme Court instituted the now-established procedure of the Anders brief:

1. Following conviction, if counsel, after a conscientious examination of the case, believes that all imaginable points of error are purely frivolous, then counsel must (a) file a brief with the appellate court detailing the reasoning for that belief and referring to anything in the record which might arguably support the appeal, and (b) request permission to be removed from representation.
2. A copy of counsel's brief must be furnished to the indigent defendant, who may file a pro se brief, thus allowing him to raise any points that he chooses.
3. The appellate court must then examine the record and decide whether the appeal is wholly frivolous.
4. If the court agrees that the appeal is frivolous, it may grant counsel's request to withdraw and affirm the conviction. If, on the other hand, it finds any of the legal points arguable on the merits (and therefore not frivolous) it must remand the cause to the trial court so that new counsel may be appointed to brief the issues.

In Garner, the CCA determined whether the lower court's lengthy opinion analyzing and discussing the reasoning behind its holding that the appeal was frivolous, was implicitly a determination that there were "arguable grounds" for review. In affirming the Tenth Court of Appeals' decision, the CCA held that when a court of appeals find no issues of arguable merit in an Anders brief, it may explain why the issues have no arguable merit.

Post-Trial Motions are NOT Self-Proving

For any new defense attorneys who may be reading this post, the following case is a must read.

Rouse v. State is a case about a defense attorney who improperly advised his client that if he did not like the sentence imposed by the judge during the sentencing phase of his guilty plea, he could simply withdraw his plea. The client was apparently led to believe that if he pled guilty (without a plea bargain), he would receive probation only. When the judge informed Appellant that he believed 10 years was an appropriate punishment (oddly, the judge seemed to be offering some kind of sua sponte plea bargain), Appellant tried to withdraw his plea, but the judge would not allow it. After Appellant was sentenced to 12 years TDC, his defense attorney (waiting until the last day to file his notice of appeal or motion for a new trial) faxed an unsworn document entitled "Motion for Appeal" to the court coordinator alleging that the defendant's plea should be withdrawn because of the incorrect legal advice that was provided to him.

On direct appeal, the 3rd District Court of Appeals relied on the unsworn affidavit to determine that Appellant's guilty plea was involuntary (Read lower court opinion here). On State's petition for discretionary review the Texas Court of Criminal Appeals considered whether the lower court erred by relying on unsworn allegations made by trial counsel in a document that was faxed to the court coordinator (when no fact-finder has evaluated the statement) to determine that a guilty plea was involuntary.  Relying on precedent from Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App. 1984), the CCA reversed the lower court decision, stating:

"We decide that the court of appeals erred to rely on the allegations in the 'Motion for Appeal' because post-trial motions such as these are not self-proving and any allegations made in support of them by way of affidavit or otherwise must be offered into evidence at a hearing. This rule is based, in part, on permitting the non-moving party an opportunity to respond to these allegations before a conviction is reversed on their basis."

The CCA also briefly considered whether and to what extent any "plea-bargaining" by the trial court concerning appellant's punishment could have influenced appellant's decision to enter an "open" plea of guilty. The CCA dismissed this contention as being without merit because the appellant's plea was entered the day before the judge's discussion with appellant regarding sentencing.