McCoy v. Court of Appeals of Wisconsin, District 1

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join, dissenting.

Indigent and incarcerated, appellant Ellis T. McCoy fights an uphill battle to overturn his conviction. Standing alone, he is hardly a match against the formidable resources the State has committed to keeping him behind bars. Appellant’s most crucial ally in this fight is the court-appointed appellate counsel that the State is constitutionally obligated to furnish him. Because the very State that is resolved to deprive appellant of liberty pays his defense counsel, he might understandably suspect his defender’s allegiance. Sensitive to that natural distrust, we have always assured indigent defendants such as appellant that our Constitution’s guarantee that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defense,” U. S. Const., Arndt. 6, “contemplates the services of an attorney devoted solely to the interests of his client.” Von Moltke v. Gillies, 332 U. S. 708, 725 (1948) (plurality opinion) (citation omitted). We have counseled them not to fear that they will receive no more justice than they can afford, because the “constitutional requirement of substantial equality and fair process” means that the rich and poor alike deserve “the same rights and opportunities on appeal . . . .” Anders v. California, 386 U. S. 738, 744, 745 (1967). The Court today reneges on these longstanding assurances by permitting a State to force its appointed defender of the indigent to advocate against his client upon unilaterally concluding that the client’s appeal lacks merit. I dissent.

I

“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U. S. 853, 862 (1975). See also Kimmelman v. Morrison, 477 U. S. 365, 379-380 (1986). Accordingly, our Constitution imposes on defense counsel an “overarching duty,” Strickland v. Washington, 466 U. S. 668, 688 (1984), to “ad-vanc[e] ‘the undivided interests of his client,’” Polk County v. Dodson, 454 U. S. 312, 318-319 (1981) (quoting Ferri v. Ackerman, 444 U. S. 193, 204 (1979)), and on the State a concomitant “constitutional obligation ... to respect the professional independence of the public defenders whom it engages,” 454 U. S., at 321-322 (footnote omitted). Once “the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” United States v. Cronic, 466 U. S. 648, 656-657 (1984) (footnote omitted). Our commitment to the adversarial process, we have repeatedly recognized, is every bit as crucial on appeal of a criminal conviction as it is at trial. See, e. g., Douglas v. California, 372 U. S. 353 (1963); Entsminger v. Iowa, 386 U. S. 748, 751 (1967); Evitts v. Lucey, 469 U. S. 387 (1985). On appeal, as at trial, our Constitution guarantees the accused “an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant’s claim.” Evitts, supra, at 394 (citations omitted). See also Jones v. Barnes, 463 U. S. 745, 758 (1983) (Brennan, J., dissenting).

Naturally, the defense counsel’s duty to advocate, whether on appeal or at trial, is tempered by ethical rules. For example, counsel may not in his or her zeal to advocate a client’s case fabricate law or facts or suborn perjury, and must at times disclose law contrary to the client’s position. See ante, at 440-441, and n. 14. Similarly, defense counsel have an ethical duty not to press appeals they believe to be frivolous, even though other lawyers might see an issue of arguable merit. See Polk County, supra, at 323-324. For retained counsel, who may decline to represent a paying client in what counsel believes to be a frivolous appeal, the latter duty does not interfere with the duty of unwavering allegiance to the client. Since, however, court-appointed counsel may withdraw only with court approval, the indigent client who insists on pursuing an appeal that counsel finds frivolous presents a unique dilemma: Appointed counsel, cast ostensibly in the role of defender, must announce to the court that will rule on a client’s appeal that he or she believes the client has no case.

We have struck a delicate balance permitting an appointed counsel to satisfy his or her ethical duty to the court in the manner that least compromises the constitutional duty to advocate the client’s case and that thereby minimizes the disadvantage to the indigent. Our cases make abundantly clear that an appointed counsel’s constitutional duty to advocate zealously on the client’s behalf does not end abruptly upon his or her conclusion that the client has no case. We have, for example, flatly disapproved of a regime that permits appointed defense counsel — or anyone other than the appellate tribunal itself — to adjudge finally the worthiness of an indigent defendant’s appeal. See Lane v. Brown, 372 U. S. 477, 485 (1963); Anders v. California, supra, at 744 (“[T]he court— not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous”).

Similarly, our Constitution strictly limits the appointed counsel’s latitude to depart from the role of defender — either by declining to advocate at all or, worse yet, by opposing the client — when that counsel believes his or her client’s appeal lacks merit. In Anders, supra, we held that a court may not permit appointed counsel to withdraw from a criminal appeal on the basis of the bald assertion that “ ‘there is no merit to the appeal.’” Id., at 742. Instead, appointed counsel’s “role as advocate requires that he support his client’s appeal to the best of his ability” and that any request to withdraw on the ground that the appeal is frivolous “must... be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id., at 744. Central to our analysis was the constitutional imperative to “assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.” Id., at 745. This “constitutional requirement of substantial equality and fair process,” we held, “can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae” Id., at 744. We took pains to emphasize that the Anders-brief requirement “would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain.” Id., at 745.

Anders’ injunction against casting appointed counsel in the role of an amicus who might “brief his case against his client” is best understood in light of Ellis v. United States, 356 U. S. 674 (1958) (per curiam), on which Anders relied, where we concluded that defense counsel abdicated their role as advocates by arguing to the court that their client’s appeal was meritless. After identifying a single “‘possible’ area of error,” Ellis v. United States, 101 U. S. App. D. C. 386, 387, 249 F. 2d 478, 479 (1957) (en banc), as presumably Anders would require counsel to do, the “defense” memorandum proceeded to prove (not merely to announce) that “there was not such merit even in this aspect of the appeal as to warrant further prosecution of the appeal,” and that therefore “no substantial question existed in this case.” Ibid, (emphasis omitted). The Court of Appeals commended the defense counsel’s conduct as faithful to their duty “to advise the court in this matter.” Id., at 386, 249 F. 2d, at 478 (emphasis in original). See also ibid. (“[C]ounsel should determine for the benefit of this court whether the case warranted review”); id., at 387, 249 F. 2d, at 479 (“[CJounsel appointed by the court to represent indigent defendants who wish to appeal their convictions owe an obligation to the court as well as to their clients”). We summarily vacated the judgment and remanded, roundly criticizing the role that the Court of Appeals encouraged counsel to play: “In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But representation in the role of an advocate is required.” 356 U. S., at 675 (emphasis added).¹

Anders and Ellis together carefully prescribe the contours of appointed counsel’s constitutional duty upon concluding that an appeal lacks merit. Appointed counsel must advocate anything in the record arguably supporting the client’s 'position. When counsel has nothing further to say in the client’s defense, he or she should say no more. At that point, an unadorned statement that counsel believes the appeal to be frivolous satisfies the appointed counsel’s constitutional duty to the client and ethical duty to the court, see Polk County, 454 U. S., at 323, and any further discussion of the merits im-permissibly casts defense counsel in the role of amicus.

I — i

Wisconsin’s Rule 809.32(1) forces appointed counsel to do exactly what we denounced in Ellis and Anders. The Rule begins with the requirement, consistent with Anders, that appointed counsel “shall file with the court of appeals ... a brief in which is stated anything in the record that might arguably support the appeal,” but in the next breath it departs from Anders’ prescription by requiring also “a discussion of why the issue lacks merit.” Wis. Rule App. Proc. 809.32(1). The Wisconsin Supreme Court, in language reminiscent of the Court of Appeals’ opinion in Ellis, extolled the discussion requirement “as a significant administrative aid to the reviewing court [which] serves an informational function and, equally important, enables the court to operate in a more efficient, expeditious and cost-saving manner.” Wisconsin ex rel. McCoy v. Wisconsin Court of Appeals, 137 Wis. 2d 90, 103, 403 N. W. 2d 449, 455 (1987). As in Ellis, the foregoing functions, however expedient they might be, describe a role ordinarily filled not by defense counsel, but by amici and the State’s attorney. Under the Rule, then, a court-appointed counsel no longer “acts in the role of an active advocate in behalf of his client.” Anders, 386 U. S., at 744. Far from providing the accused “Assistance of Counsel for his defense,” as the Sixth Amendment mandates, the Rule explicitly “force[s] appointed counsel to brief his case against his client,” id., at 745. No less than the no-merit briefs we disapproved in Ellis, the no-merit discussion undermines the “very premise of our adversary system of criminal justice,” Herring, 422 U. S., at 862.

The Court’s curious conclusion that counsel nevertheless does not act as an amicus curiae when he or she files the requisite no-merit discussion is rooted in a single observation: that the requirement poses little danger that counsel, in deciding whether “to pursue the appeal,” will improperly “weig[h] the probability of success against the time burdens on the court and the attorney.” Ante, at 443 (citation omitted). But declining to burden the court with another case or another brief is not the only, nor even the most common, sense in which counsel act as amici, and is assuredly not the meaning that Anders and Ellis ascribed to the term. The most common definition of “amicus curiae” is “[a] person with a strong interest in or views on the subject matter of an action [who] petition[s] the court for permission to file a brief . . . to suggest a rationale consistent with its own views.” Black’s Law Dictionary 75 (5th ed., 1979). And as the numerous passages quoted above from Ellis and Anders make clear, the Court’s reference to amici focused more on the concern that counsel might advocate against their client than on the concern that they might not advocate at all (a possibility that Anders itself prohibits). Thus, the Wisconsin Rule falls squarely within our flat prohibition against casting defense counsel in the role of amici.

Not only does Wisconsin’s Rule impinge upon the right to counsel, but — contrary to our admonition that “there can be no equal justice where the kind of appeal a man enjoys ‘depends on the amount of money he has,”’ Douglas, 372 U. S., at 355 (quoting Griffin v. Illinois, 351 U. S. 12, 19 (1956) (plurality opinion)) — it does so in manner that ensures the poor will not have “the same rights and opportunities on appeal” as the rich. Anders, supra, at 745. Central to the Court’s contrary position is its repeated observation that neither rich nor poor are entitled to pursue a frivolous appeal. See ante, at 436, 438-439. At issue here, however, is not the indigent’s right “‘to pester a court with frivolous arguments . . . that cannot conceivably persuade the court,’” ante, at 436 (citation omitted), nor the right to a state-funded “unscrupulous attorney” to do so, ante, at 439, n. 12, but the indigent’s right to the usual adversary appellate process to test the validity of a conviction even though a single attorney unilaterally concludes that the appeal lacks merit. Legal issues do not come prepackaged with the labels “frivolous” or “arguably meritorious.” If such characterizations were typically unanimous or uncontroversial, we could freely permit defense counsel to decide finally whether an appeal should proceed, but see Lane v. Brown, 372 U. S. 477 (1963), or to advise the court without any advocacy on their clients’ behalf that an appeal is frivolous, but see Anders, supra; Ellis, supra. It by no means impugns the legal profession’s integrity to acknowledge that reasonable attorneys can differ as to whether a particular issue is arguably meritorious.

Therein lies the Wisconsin Rule’s inequity. When retained counsel in Wisconsin declines to appeal a case on the ground that he or she believes the appeal to be frivolous, the wealthy client can always seek a second opinion and might well find a lawyer who in good conscience believes it to have arguable merit. In no event, however, will any lawyer file in the wealthy client’s name a brief that undercuts his or her position. In contrast, when appointed counsel harbors the same belief, the indigent client has no recourse to a second opinion, and (unless he or she withdraws the appeal) must respond in court to the arguments of his or her own defender. An indigent defendant who accepts the State’s offer of counsel must submit to the state-imposed risk that counsel will advocate against him or her upon unilaterally concluding that the appeal is frivolous, but the defendant with means to purchase a defender whose allegiance is undivided need never fear such treachery. When retained counsel “actively represent conflicting interests” we deride them as “ineffective,” Cuyler v. Sullivan, 446 U. S. 335, 350 (1980); see Wheat v. United States, ante, p. 153, but when appointed counsel actively brief both sides of an appeal we congratulate them for achieving “substantial equality and fair procedure,” ante, at 435.

The Court is left, then, to justify the inequality on the basis of an imagined distinction between the “typical advocate’s brief in a criminal appeal” and the Anders brief. Ante, at 442.² It is true that the question presented to the court in an Anders brief (whether the appeal has arguable merit) differs from that presented in a brief on the merits (whether the accused should prevail). Any substantive difference between the two questions, however, does not in itself suggest, as the Court maintains, that counsel’s advocacy on behalf of a client should be any less forceful in the one context than in the other. Anders itself makes clear that the role of counsel writing an Anders brief, like his or her role in a “typical advocate’s brief,” is to advocate. The no-merit letter filed by Anders’ lawyer was flawed because it “did not furnish [An-ders] with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity,” Anders, 386 U. S., at 743 (emphasis added). The Anders brief is supposed to aid the reviewing court, but not in the sense that an amicus does. Rather the Anders brief was designed to spare the reviewing court from having to sift through “only the cold record . . . without the help of an advocate,” id., at 745 (emphasis added).

To be sure, the Anders brief, unlike the typical brief on the merits, concludes with an assertion — “This appeal is frivolous” — that is contrary to the client’s interest. It does not, however, follow that “no constitutional deprivation occurs when the attorney explains the basis for that conclusion.” Ante, at 443. Such a conclusion, the Court seems to agree, is no different in type from other statements that defense attorneys are obligated to make against their clients’ best interests, such as an admission that the weight of authority is against the client’s position or that certain facts belie the client’s case. See ante, at 440-441, and n. 14. No one would suppose that the limited obligation to cite contrary law and facts translates into a general obligation to expose all the weaknesses in a client’s case, or even to explain why the particular law or facts cited disfavor the defense. Merely because counsel constitutionally may take slight deviations from the role of advancing the client’s undivided interests does not mean that counsel constitutionally may entirely abandon that role, nor even that counsel may depart from that role any more than is absolutely necessary to satisfy the ethical obligation.³

Neither the Court nor the State identifies any interest that demands so drastic a departure from defense counsel’s “overarching duty,” Strickland, 466 U. S., at 688, to advocate “the undivided interests of his client,” Ferri v. Ackerman, 444 U. S., at 204. No doubt, a counsel’s refutation of the argument that he or she deems frivolous lightens the court’s load, and in some circumstances might even expose an analytical flaw that is not apparent from counsel’s bare conclusion. But an issue that is so clearly without merit as to be frivolous should reveal itself to the court as such with minimal research and no guidance. One might perhaps hypothesize an issue whose frivolity is so elusive as to require refutation. In such an event, as in every other stage of a criminal prosecution, the Wisconsin Supreme Court was surely correct that “[t]he court will be better equipped to make the correct decision about the potential merits of the appeal if it has before it not only the authorities which might favor an appeal, but also the authorities which might militate against it.” 137 Wis. 2d, at 100-101, 403 N. W. 2d, at 454. Never before, however, have we permitted a court to further the interest in having “powerful statements on both sides of [a] question” by compelling a single advocate to take both sides. Cronic, 466 U. S., at 655 (footnotes and internal quotations omitted). There is no more reason to command defense counsel to refute defense arguments they deem frivolous than there is to force them to refute their own arguments on the merits of nonfrivolous appeals. In either situation, the State has a corps of lawyers ready and able to perform that task.

hH H-I HH

The Court purports to leave unscathed the constitutional axiom that appellate counsel “must play the role of an active advocate, rather than a mere friend of the court,” Evitts, 469 U. S., at 394. Our disagreement boils down to whether defense counsel who details for a court why he or she believes a client’s appeal is frivolous befriends the client or the court. The Court looks at Wisconsin’s regime and sees a friend of the client who “assur[es] that the constitutional rights of indigent defendants are scrupulously honored.” Ante, at 444. I look at the same regime and see a friend of the court whose advocacy is so damning that the prosecutor never responds. See Tr. of Oral Arg. 13-14, 30. Either way, with friends like that, the indigent criminal appellant is truly alone.

1 Viewed in that light, our statement in Anders that we “would not force appointed counsel to brief his case against his client,” Anders v. California, 386 U. S. 738, 745 (1967), or to act as an amicus curiae, is directly responsive to Anders’ argument that, notwithstanding Ellis, “[c]ounsel must convince the court that the issues are truly ‘frivolous.’ This must be done in a documented memorandum which analyzes the facts and applicable law.” Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 16.

2 As a preliminary matter, the Court’s contention that the brief prescribed by Wisconsin law “is not a substitute for an advocate’s brief on the merits,” ante, at 444; see also ante, at 439-440, n. 13, is belied by the reality that such briefs usually culminate not simply in a grant of counsel’s motion to withdraw, but in an affirmance of the conviction, see Wis. Rule App. Proc. 809.32(3).

3 The Court creatively recharacterizes the Anders brief as designed to “provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability,” ante, at 439. In the first place, Anders did not focus on whether the lawyer is a careful defender or a clear thinker. The appellate court may not merely examine counsel’s brief and rubber-stamp his or her conclusion; it merely uses the brief as a guide in order to conduct an independent inquiry into the otherwise “cold record.” Anders, 386 U. S., at 745. More importantly, the recharacterization proves little. One might just as easily recharacterize the inquiry on the merits of an appeal as whether counsel correctly concluded that the client should prevail. Yet this recharacterization would not impose on defense counsel an obligation to rebut their own arguments on the merits.