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Pro Se Tips and Tactics
by John Midgley
In three recent decisions, the U.S. Supreme Court addressed the kind and quality of representation to which people are entitled on appeal of their criminal convictions. If your conviction is on appeal (or should have been appealed but was not), you need to know about these cases and how you might take steps to address problems they present.
1. Anders procedure no longer required.
In Anders v. California, 386 U.S. 738, 744 (1967) and other cases, the Supreme Court held that before an attorney appointed to conduct a criminal appeal could withdraw claiming the appeal was frivolous, the attorney must draft and file a brief "referring to anything in the record that might arguably support the appeal" and send the brief to the convicted person so that they could submit additional argument. This year, in Smith v. Robbins, 120 S.Ct. 746 (2000), a bare five-person majority of the Court approved a California procedure that does not require counsel to "refer to anything in the record that might arguably support an appeal." The California procedure permits counsel who thinks a case is frivolous to merely summarize for the appellate court the procedural and factual history of the case, and leaves to the convicted person and the court the job of looking for arguable error in the record. The Supreme Court majority decided that this procedure adequately protects the right of the convicted person to a fair appeal, and found that an "Anders brief" identifying potential issues is not constitutionally required.
Justice Souter pointed out for the four dissenting Justices that elimination of the Anders brief deprives the convicted person of something crucial to the fairness of the appeal, the convicted person's own counsel's identification of points that might arguably support an appeal:
A simple statement by counsel that an appeal has no merit, coupled with an appellate court's endorsement of counsel's conclusion, gives no affirmative indication that anyone has sought out the appellant's best arguments or championed his cause to the degree contemplated by the adversary system.
To guard against the possibility that counsel has not done the advocate's work of looking hard for potential issues, there must be some prod to find any reclusive merit in an ostensibly unpromising case and some process to assess the lawyer's efforts after the fact. A judicial process that renders constitutional error invisible is, after all, itself an affront to the Constitution. 120 S.Ct. at 769.
2. No right to self-representation on appeal.
In Martinez v. Court of Appeal of California, 120 S.Ct. 684 (2000), the Court held that, unlike at trial, a defendant has no right to represent him- or herself on appeal. Criminal defendants have a limited right to represent themselves at trial if they validly waive the right to counsel. Faretta v. California, 422 U.S. 806 (1975). In Martinez, a nearly unanimous Court held that Faretta does not apply to appeals, and that the state may force on a convicted person a lawyer to conduct the appeal.
Martinez is of interest partly because Martinez himself claimed to be "a self-taught paralegal with 25 years' experience at 12 different law firms." 120 S.Ct. at 687. He represented himself at trial on grand theft and embezzlement charges and won an acquittal of the grand theft charge, but was convicted of embezzlement. Despite his experience in the law and his partial success as his own lawyer at trial, the California courts and then the U.S. Supreme Court denied his request to represent himself.
Notably, the Court did not say that convicted persons should never be allowed to represent themselves on appeal. The Court said only that the U.S. Constitution does not grant a right to self-representation, but left open other ways in which people can pursue self-representation: "Courtsmay still exercise their discretion to allow a lay person to proceed pro se." "Our holdingdoes not preclude the States from recognizing a right [to self-representation on appeal] under their own constitutions." 120 S.Ct. at 692.
3. Duties of trial counsel in assisting with filing appeal.
The third case, Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000), dealt with what trial defense counsel must do to assist a convicted person in deciding whether to appeal. The Ninth Circuit had granted Roe's habeas petition asking to reinstate his appeal because, under Ninth Circuit precedent, counsel's failure to appeal without the defendant's consent was automatically found to be ineffective assistance of counsel. The Supreme Court found that this automatic rule was not constitutionally required, and discussed when counsel must consult with a convicted person and file a notice of appeal.
The Court majority first noted that when a defendant asks counsel to appeal and counsel does not, that is always ineffective assistance. 120 S.Ct. at 1035. The Court then said that where there is no specific instruction from the convicted person, courts reviewing ineffective assistance claims could not presume that an appeal should have been filed, but must determine whether counsel consulted with the convicted person about an appeal. However, the Court refused to say that every failure of trial counsel to consult with a convicted person would be ineffective assistance:
We instead hold that counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. 120 S.Ct. 1029, at 1036.
The Court then stated that even though consultation was not always required under this standard, nevertheless in "the vast majority of cases" there will be a constitutional duty of counsel to consult with the defendant. 120 S.Ct. at 1037. Justice Souter, in a partly dissenting opinion, argued for a duty to consult in virtually all cases. He pointed out the obvious, that many convicted persons have little knowledge of what an appeal is or means, have difficulty with English, etc., and so are unlikely to be able to "demonstrate to counsel" an interest in appealing unless there is full consultation with counsel.
4. Steps you can take.
Smith and Martinez, taken together, could cause tremendous problems in a case in which appellate counsel believes there are no arguable grounds for reversal. A convicted person could be saddled with a lawyer who (perhaps incorrectly) thinks there is no merit to the appeal, but at the same time the convicted person could be unable to assert a right to self-representation.
There are a few things you can do to try to lessen the impact of these decisions on your appeal. First, you should inform your appellate counsel in writing as soon as they are assigned to your case about any issues you think should be raised as part of the appeal. Many a convicted person has come up with issues that a lawyer (or the person proceeding pro se) has turned into a winning appeal.
Second, you should take advantage of any rules that allow you to file pro se materials even though you are represented by counsel. Many states' court rules provide this right in every criminal appeal. See Martinez, 120 S.Ct. at 692.
Third, if you do want to try to represent yourself, ask to do so. As noted above, appellate courts still have the discretion to let you represent yourself if you can show some ability to do so, or you may be able to make a claim that state law gives you the right to represent yourself. In some states, the right to appeal from a criminal conviction is a constitutional right (there is no such right in the United States Constitution), so you may be able to argue that you can represent yourself in exercising that right. See, for example, State v. Sweet, 581 P.2d 579 (Wash. 1978).
Do not undertake self-representation unless you have some legal experience and ability or some excellent help from someone who knows what they're doing. (Writ writers vary widely in their ability to actually help you; proceed with caution and beware of people who want to charge you a lot of money to work on your case. Writ writing, especially for money, may also violate prison rules.)
If you do decide to file pro se materials or you are allowed to represent yourself, do not waste the appellate court's time with disorganized filings or "issues" you want to raise that do not have any basis in the trial record. An appeal is normally based only on what happened at trial, and you will not gain reversal of your conviction without a strong showing that your legal rights were violated at trial and that the violation impacted your conviction. Consult manuals showing how to brief issues on appeal and present your materials in a well-organized, succinct manner that makes clear what legal errors occurred at trial and how that hurt your defense.
Roe presents different issues about what you can do to protect your rights. If you did not have an appeal, but wanted to, Roe might help you get your right to appeal reinstated. In order to do this, you will have to show one of three things:
1) you asked your counsel to appeal, and they did not; or
2) you had nonfrivolous grounds for appeal and your counsel did not discuss the appeal with you; or
3) you "reasonably demonstrated" to your counsel that you were interested in appealing, and your counsel did not discuss the appeal with you.
Since you will be raising these issues in a post-conviction (habeas-type) proceeding, it will be your burden to prove that one of these things happened. The best evidence is written evidence: A letter or note from you (if you wrote one) to your lawyer asking about appealing, or a notation in the lawyer's file that you asked about an appeal or that there might be good issues for appeal.
Given that this kind of evidence is most likely to be found in your trial lawyer's file (unless you kept a copy of a note you wrote), it is crucial to ask for a copy of the lawyer's file at the earliest possible time. As a former client, you should be able to get a copy of most papers in your former lawyer's file. See ABA Model Rule of Professional Conduct 1.16(d), requiring that lawyers "surrender papers and property to which the client is entitled"
Roe also seems to suggest, by emphasizing the need for the trial lawyer to talk with you if you have nonfrivolous grounds for appeal, that if you now are able to show that there were good grounds for appeal, you might be able to get relief. In other words, if you can now do legal research showing nonfrivolous grounds that the lawyer should have seen but did not, and can also show the lawyer did not talk with you about an appeal, you may be able to demonstrate ineffective assistance.
If you are seeking to reinstate your appeal, you may want to look to state law first. As noted above, in some states the right to appeal from a conviction of crime is a constitutional right, which might translate to a more favorable standard for reinstating appeals than is set out in Roe. See State v. Sweet, cited above.
Note that if you are thinking of trying to get your appeal reinstated through filing a habeas-type action in state court, perhaps followed by a federal habeas corpus petition, there are now strict time limits on federal habeas actions. 28 U.S.C. § 2244(d). Many states also have time limits on post-conviction actions. Check to see if you still have time and act quickly if you do.
The material in this column is not intended to be specific legal advice about your case. As always, you must do your own research based on the facts of your case.
[John Midgley is an attorney with Columbia Legal Services in Seattle, WA.]
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