What should be done in this situation?

Defense counsel accepts multiple appointments for criminal appeals. Rather than brief the merits of an individual case, defense counsel makes generic claims about operating procedures in the courthouse. The courts of appeals repeatedly hold that there is no merit to these claims, yet counsel continues to raise the claims over a period of years, without ever attempting to distinguish the adverse authorities. Otherwise, the briefs filed appear to contain no information related to the individual case, i.e. no statement of facts, no authorities directly applicable to the facts. Other than the cover pages and defendant's name and cause numbers it is the same meritless brief.

Some might say the State should not worry about this because it gets a "no brainer" appeal that is easy to handle. But under Article 2.01, it is our duty to see that justice is done. Moreover, some claims are now appearing from the underlying cases in writs and they may require more effort to address on the part of the State years after the fact.

Should defense counsel be the subject of a grievance? Should other measures be taken to ensure that indigent defendants are receiving effective assistance of counsel? If so, what?

Shannon,

Because there might be claims with merit that are being missed due to the failure to properly review, research, and brief, and the delay caused by the token appeal could prejudice a defendant entitled to relief, we should be holding such a practioner accountable. State appellate brief writers don't need easy briefing, we are sworn to do justice.

I have always been dissappointed that appellate courts don't take counsel to task--the chronic abusers are obvious. The State can certainly bring the problem to the attention of the trial courts too--eliminate the attorneys from the appointment list. But the time may have come to take the matter directly to the SBOT since others seem reluctant to step in (cynically, because there could be financial consequences, hopefully, though, because they are uninformed).
JAS

[This message was edited by JAS on 11-30-07 at .]

[This message was edited by JAS on 11-30-07 at .]

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The State can certainly bring the problem to the attention of the trial courts too--eliminate the attorneys from the appointment list.

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Is there any mechanism for the DA's office to be removing attorneys from the appointment list, though? And more importantly, should the DA's office be involved in that at all? I can certainly see a hue and cry raised from the defense bar if prosecutors start stepping in to remove appointed defense attorneys.

I think you owe it to your county not to waste $$ on this "advocate".

I think the state should take copies of the briefs to the trial ocurts that are appointing this lawyer. All of them from over the years.

The judge who authorizes his pay voucher may not have the benefit of seeing the pattern.

We had a similar occurence in our county and after the whole stack of brief was brought to the judges, they modified the rules such that it cut down on this lawyer's (appointed) business so much he took a job somewhere else and stopped representing indigent defendants.

Shannon, I have another ethical thought. There is no constitutional right of appeal except it must be equal where provided. Thus, I think 2.01 applies to the trial court level (only). Justice has already been done. You have no right to appellate reversal in the interest of justice. Rather there is the harmless error rule, the preservation rule, the briefing rules, all of kinds of roadblocks to justice at the appellate level. Theoretically the court can do justice under the fundamental error rule without your help/intervention. So I think the issue is more a practical one than an ethical one. I see appeals all the time where I say, "gee I am glad they did not raise that issue." I do not then bring it to the attention of the court of appeals that if I had written the appellant's brief it would have included a different point of error. I do agree that where we see consistent ineffective assistance (and in this case fraud upon the county), we should refer the matter to the Bar, the appointing judge, and maybe first the lawyer involved. I just observed that I left out the critical word in my first statement.

[This message was edited by Martin Peterson on 12-02-07 at .]

How is this any different than the issue being raised in the postconviction writ world, where some lawyer is cutting and pasting from a defendant's letter or other briefs without any real work on the case? Ultimately, the responsibility for supervision is with the judges. However, judges are notoriously reluctant to criticize the work of a lawyer, as they face the loss of financial contributions and risk triggering an opponent at the next election.

So, there should be a second level of judge (seems to me the presiding judge of the region would be a good choice) that oversees such matters. That way, a prosecutor or judge could simply refer the matter for consideration by the judge/supervisor. The judge/supervisor could remove the lawyer from the appointment list and/or refer the matter to the State Bar.

What about filing a motion with the appellate court to strike the appellant's brief and point out that the same brief has been filed numerous times before. File a copy with the trial court judge? And then file a grievance.

I see a fair number of defense briefs that make two page arguments that are obviously meritless. For example, that the evidence is legally insufficient because the jury should have believed the defendant.

The courts of appeals have made it such a burden for defense counsel to do an Anders brief that there is a strong incentive to just make frivolous complaints.

In some circumstances, an appointed appellate lawyer faces a no-win situation. A review of the case shows no real points of error; but, an Anders brief almost always draws a complaint, and sometimes a grievance, from an appellant. That's when we do see a fair number of factual insufficiency briefs. I can't really blame a lawyer under those circumstances.

But, is it really ethical to file a brief which raises a frivolous point without calling it by name? I agree the lawyer is certainly between a rock and a hard place, and should never just use a canned argument. I guess the decision in Anders was just not a very good means of solving the problem. Or, you could say it better protects the rights of the appellant than the briefs being filed to get around Anders. The truly embarassing thing must be when the court finds a point with merit that you missed.

At least with a frivolous sufficiency point, defense counsel is actually looking at the record and has the chance to find other errors. Indeed, even this new breed of brief that merely corrects typos or technical errors in judgments (rather than Anders or sufficiency points) still requires some review of the record. The mere cutting and pasting of nonsense arguments, however, does no justice. These defendants would get more representation by going pro se or having another inmate write a brief.

[This message was edited by Quiet Man on 12-02-07 at .]

I agree with Quietman. Usually, there is a difference between a brief filed to avoid filing an Anders brief and the repetitive filing of the same garbage just to milk the system. Aren't we talking only about the latter briefs?

If a trial judge won't help resolve the canned brief problem, perhaps the regional administrative judge can -- JB's point? Maybe the administrative judge should be charged with the responsibility for monitoring appellate briefing complaints.

JAS

Martin pointed out to me a few months back that there is a sanctions provision in Article 1.052.

An attorney's signature signifies that he has read the pleading and it is "not groundless and brought in bad faith" or "groundless and brought for harassment, uneccesary dealy, or other improper purpose."

"Groundless" is defined as "without basis in law or fact and not warranted by a good faith argument for the estension, modification, or reversal of existing law."

Could this be applicable to the original question?

It is incumbent on the State to file a motion with the courts seeking to strike the pleading and even recommending contempt in egregious situations. I am aware of State invoking the strike procedure (and an appellate court ordering rebriefing), but not the contempt sanction. In the right situation, I still think an ethics complaint would be appropriate.

In the appellate courts, rebriefing and striking can be ordered under TRAP 39.9 (a & b) too. And contempt is also provided for under TRAP 38.8(b)(4).

JAS

JAS, I guess that you meant 38.9(a&b) when you cited 39.9(a&b). I doubt you could ever use 38.8(b) to hold someone in contempt for a frivolous brief; it's about refusing to file a brief.

If your are going to do something about canned briefs it has to be on the basis of the complaints being obviously frivolous. There is nothing inherently wrong with a canned brief. I'm sure that lots of appellants won on largely canned briefs based on Grunsfeld or Rose.

But if you are going to take action on the basis of defense counsel filing an obviously frivolous brief then there are lots more defense counsel come into the target zone. For example, my impression is that roughly 80 percent of the points of error in death penalty appeals are canned and frivolous.

If your indignation is based upon defense counsel stealing from the county, then maybe the place to start is by pulling up the bills they submit. If they charge 50 hours of research and writing for a canned brief, then isn't that some kind of theft. Reminds me of the movie "The Firm."

[This message was edited by david curl on 12-03-07 at .]

[This message was edited by david curl on 12-03-07 at .]

The most I am comfortable doing is arguing the lack of merit to the courts of appeals; although I might urge that a contention by summarily dismissed for inadequate briefing, e.g, ignoring contrary controlling authority or not being based upon fact.

To request more, by using grievances or sanctions, seems to risk accusations of carrying our advocacy too far. And with the ever-present specter of habeas, finality is not really an accurate gauge of when redress should be urged.

I think the responsibility must remain upon the appellate courts, who if after review of the State�s argument and any reply, agree that contentions are wholly frivolous, should ensure that an appropriate agency follows up on the matter (including billing issues).

Both the failure to afford the defendant a fair appeal and the $ involved are at issue. The real problem is how to effectively control such abuses. What level of abuse must we tolerate before action is required? And what is the best avenue(s) for redress? We should not simply bury our head in the sand and defer to others.

I know it is not popular among our colleagues, but from all those PR classes some 20 years ago, one phrase of Professor Steele's has always remained with me: as lawyers "we have a duty to rat" on lawyers failing to perform their sworn duty. Just part of seeing that justice is done.

JAS

[This message was edited by JAS on 12-03-07 at .]

Is it really an appeal?

The issue reminds me very much of Ex parte Kerr, in which the Court of Criminal Appeals refused to entitle a canned habeas petition an actual habeas petition.

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We are confident that this sort of mistake [filing an inadequate petition] will not be made by other counsel after today. Although it is possible to characterize the original habeas attorney's filing as a Machiavellian strategy designed to thwart the proper statutory procedure for filing a death penalty writ, we have no reason to make that conclusion in this particular case. If future habeas counsel were to indulge in such a strategy (which we doubt), we have both the statutory and plenary authority to hold that attorney accountable via our powers of contempt,FN18 orders removing or denying compensation to dilatory counsel,FN19 reporting violations of the Texas Disciplinary Rules of Professional Conduct to the appropriate State Bar officials, as well as other remedies. FN20

Ex parte Kerr 64 S.W.3d 414, *421 (Tex.Crim.App.,2002)

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Of course, the discussion was all in retrospect, after the intial matter had been resolved. But it does seem to be a similar situation.