Doherty, James J.

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 59 | Issue 1 Article 11968Wolf Wolf--The Ramifications of Frivolous AppealsJames J. DohertyFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationJames J. Doherty, Wolf Wolf--The Ramifications of Frivolous Appeals, 59 J. Crim. L. Criminology & Police Sci. 1 (1968)THE JOURNAL Or CimniAL LAW, CnRncOLOGY AND POLICE SCIENCECopyright @ 1068 by Northwestern University School of LawVol. 59, No. 1Printed in U.S.A.The Journal ofCRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCEVol. 59 March 1968 No. 1WOLF! WOLF!-THE RAMIFICATIONS OF FRIVOLOUS APPEALSJAMES J. DOHERTYThe author is First Assistant Public Defender of Cook County (Chicago), Illinois, and Chief ofits Appellate Division. He has been associated with the Public Defender's Office since 1956.In his article Mr. Doherty deplores the practice of frivolous appeals and discusses the deleteriouseffect upon meritorious cases which warrant the best efforts of appeal counsel and adequate attentionfrom the reviewing courts.As a career defender of indigent persons accusedof crime, I find myself in the anomalous and re-grettable position of criticizing a decision of theSupreme Court of the United States that was in-tended to benefit the very persons I defend. Thedecision is the one rendered in Anders v. Californiain May, 1967.1A 6 to 3 majority of the Court held that court-appointed appeal counsel does not fulfill his roleas an active advocate in behalf of his client bywriting a no-merit letter to the reviewing court.The Court established the following guidelinesfor the handling of appeals considered frivolousby appointed counsel:... if counsel finds his case to be wholly friv-olous, after a conscientious examination of it,he should so advise the court and request per-mission to withdraw. That request must, how-ever, be accompanied by a brief referring toanything in the record that might arguablysupport the appeal. A copy of counsel's briefshould be furnished the indigent and time al-lowed him to raise any points that he chooses;the court-not counsel-then proceeds, aftera full examination of all the proceedings, todecide whether the case is wholly frivolous. Ifit so finds it may grant counsel's request towithdraw and dismiss the appeal insofar asfederal requirements are concerned or proceedto a decision on the merits, if state law so re-1386 U. S. 738 (1967).quires. On the other hand, if it finds any of thelegal points arguable on their merits (andtherefore not frivolous) it must, prior to deci-sion, afford the indigent the assistance ofcounsel to argue the appeal.An earlier (1958) Supreme Court decision, Ellisv. United Statesy had held that appointed appealcounsel need only ask to withdraw whenever, after"Cconscientious investigation", he considered theappeal to be frivolous, after which the court of re-view would deny the appeal if it was satisfied thatthe withdrawing counsel had "diligently investi-gated the possible grounds of appeal". In Andersa new dimension was added: counsel who seek towithdraw must now submit a brief "referring toanything in the record that might arguably sup-port the appeal". This places counsel in quixoticposition, as the dissent points out, of trying to findsupport for an appeal which he has already con-cluded to be without any merit whatsoever.The dissenting opinion noted that California,the state out of which Anders arose, had earlier de-veloped a workable, fair system whereby the ap-pellate court could satisfy itself "from its own re-view" of the record whether counsel's assessmentof the record was correct. Moreover, the dissentvoiced its concern over the majority's impositionof "a single inflexible answer to the difficultproblem of how to accord protection to indigentappellants in each of the 50 States". This latter2 356 U. S. 674 (1958).JAMES J. DOHERTYobservation calls for further exploration and em-bellishment.Before we can seek to improve our law, we mustattain some fairly clear conviction of what goalsare to be desired. Then the decision of whether alaw is good entails judgment not only on the desir-ability of its goal but also on its practical working.Prognosticating whether a legal device will reallywork depends on a sane evaluation of each ruleand practice in law. This cannot be done morethan tentatively; it cannot be done by deductionfrom prevailing principles. Justice Holmes, in hislectures entitled, "The Common Law", statedthat "the life of the law has not been logic, it hasbeen experience".We are totally unaware of any compelling ex-perience which would prompt the Court in Andersto say that the procedure that it commands "willassure penniless defendants the same rights andopportunities on appeal-as nearly as is practi-cable--as are enjoyed by those persons who arein a similar situation but who are able to affordthe retention of private counsel".The new procedure will do no such thing. Infact, it will accomplish an opposite result. The moststartling feature of the Anders decision is that thepeople it will hurt the most are those whom itpurports to help-the indigent prisoners. There arethree reasons why the procedure commanded willhurt indigent appellants: 1) it will encourage me-diocrity; 2) it will contribute to a backlog of un-reviewed convictions; and 3) it will impair theeffectiveness of the forma pauperis bar.THE ENCOURAGEMENT OF MEDIOCRITYAll lawyers should be justifiably proud to playan active role in the expanding horizons of dueprocess of law. But their efforts and accomplish-ments will be hampered, delayed, and discouragedif they are forced to give formal priority to frivo-lous appeals. It is naive to expect that counselwho writes a brief will simultaneously move towithdraw. The decision invites sophistry; it offerscounsel the choice of filing a schizophrenic motionto withdraw (accompanied by a formal brief op-posing the motion), or the alternative of writingthe brief and not moving to withdraw. Human na-ture will force the selection of the latter alternative.That will satisfy the form of due process withoutregard to substance. Thus, the decision will en-courage mediocrity or default.On the other hand, by trusling the forma pau-peris bar and by challenging it, the Court can callforth heroic efforts. Almost without exception, thelawyers in recent landmark cases of substance werecourt-appointed. 3A BACKLOG OF UNREVIEWED CONVICTIONSWith the advent of increased criminal appeals,the task of briefing and arguing forma pauperisappeals has been delegated, and will increasinglybe delegated, to tax-supported groups of lawyersassigned to appeal work exclusively. If such groupsof lawyers are forced to brief frivolous appeals, thepeople who will suffer the most are the indigentprisoners who have been unjustly convicted; theywill languish in prison while the lawyers devotetime and energy to hopeless causes, on a first come-first served basis.4The Appeals Departments of various PublicDefender Offices throughout the country are theplaces where backlogs of unreviewed convictionswill first be revealed. Since such offices are notori-ously understaffed and underpaid, frivolous ap-peals will compound the evil of delay in reviewingmeritorious appeals. It takes far more time towrite a frivolous appeal than it does to write onethat a lawyer can really sink his teeth in. In themeantime, the backlogs continue to grow, andbacklogs of unreviewed convictions could producesituations whereby a convicted person may havealready served his time before his case comes to theattention of an appellate court.It is no answer to suggest that the organized barof private practitioners could render the neededrelief. That this probably would not happen is il-lustrated by the experience in Cook County, Illi-nois, where, in 1930, an unworkable assigned coun-sel system bad produced such a backlog of criminalcases on the trial docket that it became necessaryto create the office of Public Defender.It makes no difference whether a log-jam is atthe mouth of the river or at the outlet. Assumingthat the large law firms briefed and filed all theappeals in the Public Defender's backlog within30 days, it would simply move the log-jam into theState's Attorney's office. If that office receivedsufficient outside help to cope with the inundationof appeals, it would simply move the log-jam intothe reviewing courts.3 For example, see Gideon v. Wainwright, 372 U. S.333 (1963).4 A first come-first served basis is the only fair methodof handling appeals assigned to a public agency.[Vol. 59FRIVOLOUS APPEALSThe place to attack any evil is in its cause. Oneof the causes of growing backlogs of unreviewedconvictions is the frivolous appeal.IMPAIR3NT OF H E EFFEcT VENEss OFTm FoRuA PAuPERiS BAREvery lawyer who undertakes the appeal of alaw suit has a duty to his client to win if at all pos-ible. He also has a duty to his profession, the re-viewing court, the law, justice, and above all tohimself, to make sure that if he does prevail it isindeed by honorable means. He has not only theright but the duty to vigorously and fearlesslychampion the most unpopular cause, but he shouldnot urge a frivolous position or undertake an appealon a gamble that the reviewing court will err inhis favor. The lawyer who does the latter will losestature which may extend beyond the particularcase; he will find himself in the position of theshepherd boy who cried, "Wolf, wolf!" when therewas no wolf. The reviewing court will not knowwhen he is sincere.Candor, fairness and sincerity are every lawyer'sresponsibility to every court in which he appears.He does not have to be right, but he has to believehe is right. And the court has to believe that he be-lieves he is right. Anything short of that is intel-lectual dishonesty.The statement in Anders that the procedurecommanded "will assure penniless defendants thesame rights and opportunities on appeal--as nearlyas is practicable--as are enjoyed by those personswho are in a similar situation but are able to affordthe retention of private counsel", is predicatedupon the inarticulated and false premise that pri-vate lawyers will undertake the appeal of any crim-inal conviction, even a frivolous one, so long asthey are compensated. With deference and respectfor the Court, I cannot subscribe to such an un-warranted denigration of the Bar.Under the standards of ethical conduct pre-scribed in the Canons of Professional Ethics, aprivate lawyer who is approached to under-take a criminal appeal should charge a reasonablefee to make a preliminary study of the record.5 Ifhe decides that the contemplated appeal is withoutmerit, he should so advise the client and decline toundertake the appeal. Under those same standards,a court appointed counsel on appeal who consci-entiously arrives at the conclusion that an appealis frivolous-that there are no grounds of appeal-should be premitted to withdraw upon the filing ofan affidavit which recites the facts (with recordreference) and his opinion that the appeal is with-out merit.In the Third Book of Moses, called Leviticus, wefind the following at Chapter 19, verse 15:Ye shall do no unrighteousness in judgment:thou shalt not respect the person of the poor,nor honour the person of the mighty: but inrighteousness shalt thou judge thy neigh-bor.From this authority it is respectfully submittedthat an indigent prisoner is entitled to counsel onappeal as much as an affluent prisoner, but notmore.Any client is entitled to the very best that a law-yer has to offer; his skill, his knowledge, his experi-ence, and his diligence. But no one has the right tomake an intellectual prostitute out of a lawyer.A lawyer's time and advice are for sale. His in-tegrity is not for sale. And it should not be givenaway.CONCLUSIONWhen viewed realistically, undue solicitude forindigent prisoners who have been proved guiltybeyond a reasonable doubt in a fair trial is a denialof equal protection to those indigents who have notbeen proved guilty beyond a reasonable doubt orwho have not received a fair trial, because of delayin reviewing their convictions.For the benefit of indigent prisoners who havebeen unjustly convicted, the frivolous appealshould not be permitted to consume the time ofappeal lawyers and reviewing courts.-See Canons 5, 12, 15, 22, 30, 31, and 44.

Wolf Wolf--The Ramifications of Frivolous Appeals

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Wolf Wolf--The Ramifications of Frivolous Appeals

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