» Post-Conviction » A Brief for Those Who Lack Creativity

A Brief for Those Who Lack Creativity

Yesterday, Ohio criminal defense lawyer Jeff Gamso put up a blog post that included this paragraph:

In Ohio criminal defense circles, I’m known as one of the Anti-Anders-brief Nazis. Under considerable pressure from other members of the bar, I was convinced not to try publicly humiliating the lawyers who file them. Sort of like maintaining good relations with repressive regimes because we can reach them better if we’re nice, I have standing offers out to help lawyers find issues when they’re stuck. Occasionally I’m taken up on the offers. I’ve had some success at convincing people they shouldn’t be filing them. And I speak about this sort of thing a fair amount at CLEs. It’s not enough, but it’s what I can do.

If you aren’t a criminal defense lawyer, you probably don’t know what an Anders brief is. Consider yourself lucky. An Anders brief is an appellate criminal defense lawyer’s white flag signaling defeat. It’s the equivalent of an appellate lawyer publicly wearing a sandwich board sign telling everyone he or she has read an entire trial case worth of transcripts, met with the client, and spoken with the trial lawyer, yet is still incapable of finding a single reason in the record why his or her client, who lost at trial, shouldn’t have been convicted.

Maybe I’m exaggerating a bit, but Anders briefs really are pretty amazing things. An Anders brief, which has the same silly table of contents and table of authorities as any appellate brief, literally just describes the nature of the case and the facts, then says that counsel has found no arguable question of law that is not frivolous. The lawyer then asks the court to do his job search the record for reversible error. As if that wasn’t enough, the brief usually ends by asking the court for leave so the client, without any help from the person who’s supposed to be representing him, can file a supplemental brief on his own.

When I was in law school, I wrote a number of appellate briefs working as a clerk and research assistant for a sole practitioner. I remember being very suspicious of the Anders briefs he had me write. I always thought there were issues, but he told me it wasn’t worth it because they all involved us arguing for the appellate court to overturn well-established precedent from a higher court. Invariably, I would encounter existing case law that was ridiculous and unfair. The idea of filing an Anders brief instead of fighting the good fight bothered me.

At the time, unfortunately, I had never done a trial or even seen a trial. I didn’t even have a bar number. He was the lawyer, so Anders briefs they were. He told me he wouldn’t be appointed for anything other than the direct appeal, so he wouldn’t be able to personally litigate the issues any further. I realized soon that what he really meant was that he wouldn’t get paid enough to take the appeal up to a court that actually had the power to do anything, and he wasn’t interested in working for free. He also seemed very concerned that the next lawyer, if there was one, would think badly of him for making an argument contrary to existing case law.

I hated every second I spent writing those briefs. I thought about how dumb it was that an appellate court even needed a brief to review the record on its own. Did they require a table of contents and table of authorities just to make sure the lawyer on appeal did something on the case? What would they do if I incorrectly cited Anders v. California or got a cite to the record wrong? Would anyone actually read the brief? Do the courts really hate trees so much that they waste paper just for the sake of wasting paper? I often thought about how it might actually be easier to write a real appeal on many of the more basic arguments I wanted to raise. Why not just give it a whirl?

As a lawyer, I’ve done everything I can to avoid ever having to file an Anders brief. I consider myself a very creative person, and I’ve had to put that to good use. I’ve made plenty of purely equitable arguments and argued for overturn of precedent. Some arguments may have been pretty far out, but I never made one I don’t still stand behind.

As a result, I’ve gotten at least one somewhat snarky decision from an appellate court. It didn’t feel good being treated like a dumbass for making an argument, but I feel confident that anyone reading the briefs without the benefit of a legal education would’ve thought I was in the right. Constitutions, statutes, and cases are frequently unfair. I just pointed it out and suggested an alternative. It isn’t my fault that a few people who are almost completely disconnected from the world in which most of us reside aren’t willing to think outside the box. I’d like for everyone to think I’m smart and like me, but that isn’t my job. Writing those terrible briefs for that other lawyer made me feel much worse than writing something a few judges didn’t get.

Sadly, I must admit that there is one Anders brief out there with my name on it. My nightmare came last year when I received an appellate appointment in a different jurisdiction. The circumstances were fairly unusual, and even though I didn’t have an appellate contract in that jurisdiction, it made a lot of sense for me to do the appeal. I took it on expecting I would find something, but I soon realized I was mistaken.

The trial lawyer told me it would be an Anders brief, and I immediately became suspicious of him. The suspicion only lasted until I finished reading the record. The defense won every motion. From what I recall, almost every defense objection was sustained, and almost every one of the state’s objections was overruled. The judge happily struck every prospective juror the defense requested be struck, and he gave the defense every single requested jury instruction. Even with those victories, the case against the client was overwhelming. It involved drug sales to an undercover agent witnessed by no less than a half dozen other officers. On top of that, the defendant was acquitted on all the counts that might have given rise to an appellate issue regarding the sentence. Even the client couldn’t think of a single issue.

Winning all those motions probably felt great for the defense lawyer at the time, but it made my job all but impossible. I wrote an Anders brief with my head hung low, and I filed it in shame. I think that’s going to be the last appellate appointment I ever accept. With private cases, I can screen for issues.

Personally, I’d love to attend one of Jeff Gamso’s CLEs and hear more about what he has to say on the subject. There’s something terribly wrong about the very concept of an Anders brief, and I’d be a happier person having gained some knowledge that might help make sure I never have to feel the shame of filing one again.

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2 Responses to "A Brief for Those Who Lack Creativity"

  1. Scott says:

    Tonight I was putting the finishing touches on my own response to an Anders brief. I was putzing around searching the internet when this post came up.

    My client’s previous attorney had filed one and waved the white flag. The client’s mother hired me to file a response and do the appeal. From the get go something just bothered me about this whole process. And your words here have really framed the issue for me: The idea that one would flat give up and not craft any kind of argument is plain offensive to me.

    Thank-you for a great post.

  2. […] mentioned Anders briefs before. It’s the defense-lawyer equivalent of licking your master’s hand in submission. […]

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