Smith v. Robbins--Interest of Amicus Curiae Summary of Argument (File 1 of 3)


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IN THE

SUPREME COURT OF THE UNITED STATES

George Smith, Warden

Petitioner,

vs.

Lee Robbins,

Respondent.

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)⁽¹⁾ is a nonprofit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society.

The considerable difficulties the courts and counsel have with frivolous indigent appeals, as demonstrated by the decision below, are contrary to the interests of society that CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On December 31, 1988, defendant shot and killed his former roommate. Pet. for Cert. 2. He served as his own counsel at his trial in Los Angeles County Superior Court, id., at 3, and was convicted of second-degree murder and grand theft auto. Robbins v. Smith, 152 F. 3d 1062, 1064 (CA9 1998).

Defendant was appointed counsel for his appeal. Ibid. Appellate counsel found that there were no nonfrivolous issues to appeal. Pet. for Cert. 3. Following the procedures established in People v. Wende, 25 Cal. 3d 436, 600 P. 2d 1071 (1979), appellate counsel filed a nonmerit brief with the Court of Appeal. Pet. for Cert. 3. It contained the procedural history of the case, a statement of facts, and a request that the Court of Appeal independently review the record for appealable issues. In an attached declaration, appellate counsel averred that he had reviewed the entire record, discussed the case with trial counsel, and told defendant of his right to request counsel's removal and file his own brief in propria persona. Ibid. Defendant filed a brief on his own behalf. Ibid. The appellate court, after independent review of the record, found that appellate counsel satisfied his duties, that the issues raised by defendant were unsupported by the record, and that there were no arguable issues to appeal. Ibid.

After exhausting his state remedies, defendant filed a federal habeas action on February 24, 1994. Robbins, supra, 152 F. 3d, at 1064. He claimed that state appellate counsel's withdrawal violated Anders v. California, 386 U. S. 738 (1967). On October 24, 1995, the District Court granted the habeas petition, effectively requiring the California Court of Appeal to hear defendant's direct appeal. Id., at 1065. The Ninth Circuit affirmed, finding that the California procedure violated Anders because counsel's Wende brief had failed to "identify any grounds that arguably supported an appeal." Id., at 1067. It also upheld the District Court's conclusion that there were two nonfrivolous issues: 1) the denial of defendant's attempt to withdraw the waiver of his right to counsel; and 2) the inadequacy of the county jail's library depriving him of his right to self-representation. Ibid.

SUMMARY OF ARGUMENT

This Court has good reason to concern itself with wasting resources, as the judiciary is particularly vulnerable to resource limitations. Judicial decisionmaking is relatively expensive, and likely to get more expensive over time. The physical constraints upon the judiciary are particularly severe at the appellate level.

Frivolous appeals are thus a particularly important problem to attack. No legitimate interest is served by frivolous appeals. Because indigent criminal defendants have no incentive to forego frivolous appeals, this class of litigants is a singularly large source of frivolous appeals. Therefore, limiting frivolous defense appeals is a particularly fertile ground for saving scarce judicial resources.

Anders v. California exacerbates this problem by requiring appointed counsel confronted with a frivolous appeal to write an "impossible brief" that overburdens the courts and treats other defendants unfairly. The decision implicitly mistrusts the reliability of appointed counsel and presumes that retained counsel is willing to file anything for money, no matter how frivolous the appeal. Few attorneys are so unethical or incompetent.

The Anders brief imposes an impossible ethical dilemma between counsel's duty not to file frivolous claims, and the duty to act as advocate on behalf of the client. Anders also assumes that frivolous can be defined more precisely than reality allows. An issue either is or is not frivolous, if it might "arguably support the appeal" then it is no longer frivolous.

Anders also places too great a burden on the intermediate appellate courts by requiring them to search the record for appealable issues. Having courts act on behalf of indigent frivolous defendants in this manner creates equal protection problems, since nonindigent defendants and indigent defendants who file briefs on the merits do not get the same level of judicial scrutiny as Anders litigants.

Stare decisis is a rule of policy that should not prevent this Court from overruling or modifying Anders. There is no reliance interest in Anders, and it has caused considerable confusion. Given its high cost in wasted resources and the ethical dilemmas it causes, Anders should be abandoned.


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Footnote 1.Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.