I’ve mentioned Anders briefs before. It’s the defense-lawyer equivalent of licking your master’s hand in submission. A creative lawyer can always find some issue somewhere, and filing a brief more or less saying your client should’ve been found guilty based on the record is just embarrassing.
If you aren’t sold on not filing Anders briefs solely because they’re humiliating to any competent lawyer, Arizona’s court of appeals recently provided another reason. In an opinion last week, the court disagreed with an appellate public defender’s assessment that only frivolous issues existed on appeal. The lawyer apparently reviewed the record enough to set forth a sufficient background to reveal potential issues, but he didn’t see at least one issue that the court saw.
I can’t imagine much worse for a lawyer than having a court that regularly shoots him down find an issue that he didn’t see based on his own version of facts. How’s that for incentive to not file an Anders brief? The issue the appeals court noted was whether the trial court erred by denying the defendant’s motion for new trial based on the fact a juror conducted outside research and told the rest of the panel about it. The court directed the lawyer who filed the Anders brief to file a new opening brief setting forth any non-frivolous issues, including that one.
I’m all about courts overturning convictions, and it sounds like there may have existed one hell of an issue. Sadly, I’m not thrilled about the opinion. Instead, I’m reminded of poor Charlie Brown and the football.
You probably remember that Lucy loves convincing Charlie Brown to run up and try to kick the football. It’s always her idea. She brings the football to him, and despite his reservations, she somehow manages to make him give it a try. Every time, she pulls that football away at the last moment, causing poor Charlie Brown to flip up in the air and land on his ass. Charlie Brown never actually gets the satisfaction of making contact. Instead, Lucy sets him up for failure, over and over again.
Arizona’s courts occasionally stretch the meaning of statutes to no end in upholding convictions. I’ve complained about felony flight before, but that’s the tip of the iceberg. If there’s some way to make a defendant’s conduct arguably constitute the crimes involved, text of the statute be damned. The stretch also applies to the constitution, the discovery rules, and pretty much everything else. I’ve had issues where the lower court is so clearly wrong that it almost defies belief. The reviewing court almost always figures out some way to punt. With special actions, they decline jurisdiction. With appeals, they stick with stare decisis or procedural errors by the defense. I’ve never seen an issue so good that a judge so inclined couldn’t reason it away.
Getting back to Charlie Brown, as much as I love the fact the court is setting up a nice, pretty football for defense counsel to try to kick, I’m pretty sure this isn’t going to end well for the defense. Should he have raised it to begin with? Of course. Is he going to win in the end? I doubt it.
My bet is that the court of appeals is going to defer to the trial court’s findings of fact regarding the information provided to the jury and its impact. Or maybe it’ll find a case from long, long ago in a place far, far away that arguably supports whatever crazy theory the state comes up with in its response. Okay, I’m probably giving the state way too much credit; I usually lose based on arguments the other side didn’t even raise. Perhaps the court will just go with the ol’ standby, “harmless error.” I may not be able to predict exactly how it’ll do it, but I’m fairly certain it’ll happen. Sure the juror messed up, but the defendant was totally guilty, right? Off with his head!
I like the opinion, and I want the defense to win. I just hope the court doesn’t pull a Lucy and put appellate counsel through the trouble of raising all kinds of issues only to shoot them down, one by one. I always felt bad for poor Charlie Brown, and the situation the court of appeals has created seems eerily familiar.
H/T Andrew Becke and Xochitl