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High cost of murder

Posted by Russell D. Hunt | Oct 09, 2010 | 0 Comments

This week I had a close brush with the Anders standard .  An Anders brief is a "no-merit" brief in which the appellate lawyer informs the court of appeals that he cannot find any meritorious issue in the case to support an appeal.

My friend Jamie Spencer recently wrote an interesting post about a case in which a Texas lawyer wrote a very sloppy Anders brief.   In  preparation for the posting, Jamie actually went and read the  Anders  case (RTFM?), which has a happy ending–Appellant Anders actually had meritorious issues in his case that his original counsel had missed, and his case was reversed and remanded.  A rare win on appeal for the defense.

  No Appellate lawyer or Appellate court wants to deal with an Anders brief.  This is because a correctly-drafted Anders brief requires the Appellate lawyer to brief any conceivable error and explain why that error has no merit.  As an illustration of the tedium of an Anders brief, See the 5th Circuit's 7-page single-spaced outline of the minimum things a proper Anders brief must contain.   (RTFM)   So I was working away on a brief to the US 5th Circuit Court of appeals in an appointed appeal of a guilty plea.  I had not handled the case at the trial court level, but I had noticed that the Appellant had filed his own notice of appeal from jail.  An appellant's filing his own NOA is rather unusual because most of the time the attorney will prepare and file the notice of appeal, especially since Appellant had hired the out-of-town lawyer to handle his case.  Unfortunately the NOA was not filed on time but it was mailed on time from jail which is close enough ( see this article concerning the "mailbox rule").   

I had visited with the trial counsel and he had told me of the one possibly meritorious sentencing issue which I had duly briefed and was writing about.  I didn't recall any mention from him of any particular problems with filing an appeal.  Then I noticed the big problem– Appellant had plead guilty with a plea agreement in which he waived his right to appeal.  Whenever I had dealt with this situation in the past, the Government had always chosen to enforce the appeal waiver. And I had never had any strong argument about why they shouldn't.  But in this case I really felt like my client had gotten the short end of the stick.  

What to do?  There is no manual for this situation.  So I did some instant research– I called my friend Stan Schweiger who is an excellent appellate lawyer .  Stan suggested that I call up the head of the US Attorney's office appellate section.  Stan assured me that he was a reasonable guy who might just choose not to enforce the appeal waiver.

Anders averted: I spoke with AUSA Joseph Gay, head of the appellate section, and he turned out to be an eminently reasonable guy.  He said that the Government would actually read my brief and take a look at the merits of my case before deciding whether to exercise the appeal waiver provision of the plea agreement. 

I must say that I was somewhat surprised and very impressed.  In the past I have never had a prosecutor tell me that they might just overlook the appeal waiver if they agree that the client got a raw deal.  It is too easy for a prosecutor to lose track of the fact that their goal is not to rack up wins but to see that justice is done.  Which is exactly what not enforcing the appeal waiver in this situation would do.

Will I win this appeal?  I don't know, but at least I have a shot at making an argument for my client.  And as an added bonus, I didn't have to write the dreaded and detestable Anders brief.

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