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Justices: Anders withdrawals not allowed

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The Indiana Supreme Court has rejected a procedure set up by the nation's top court more than four decades ago that allows attorneys to withdraw from criminal appeals they deem frivolous. Our justices say it's practically and financially more efficient to simply proceed with an appeal and let that process play out.

Deciding on a case that's moot but presents an issue of great public concern and "significantly implicates appellate practice and procedure, constitutional rights, legal ethics, and judicial resource management," Indiana's justices ruled unanimously today on Bryan G. Mosley v. State of Indiana, No. 49S02-0812-CR-643. They affirmed the criminal defendant's misdemeanor conviction for resisting law enforcement and sentence of 363 days of probation, which the Court of Appeals had done last year.

But more significantly, the justices tackled an issue that's divided the nation's state and federal courts and has brought debate in Indiana since the Supreme Court of the United States ruled on Anders v. California, 386 U.S. 738 (1967). The ruling established protocol permitting appointed counsel to withdraw from "frivolous" criminal appeals by filing a brief - now dubbed an "Anders brief" - with the appellate court. That procedure requires public defenders to review the record, brief the court on any possible meritorious issues, and give the appeals court a chance to fully examine whether the case has merit and the attorney can withdraw.

In the Mosley case, the Court of Appeals observed that an appeal shouldn't be found in every case and that attorneys can use the Anders brief procedure.

"Trying to create issues where there are none leads to the sort of perfunctory, baseless brief we have before us today," the appellate panel wrote last year. "When there are no meritorious arguments to be made, the better approach is to file a brief in accordance with our decision in Packer v. State, 777 N.E.2d 733 (Ind. Ct. App. 2002), which outlines the proper procedure for such a situation."

That was the basis for the Indiana Supreme Court acceptance of the case, which now tosses out the procedure being used here.

"Overall, Anders is cumbersome and inefficient. ... An attorney who withdraws pursuant to Anders must still review the record, complete at least some legal research, consult and advise the client, and draft a brief for submission to the Court of Appeals," Indiana Justice Theodore Boehm wrote. "Requiring counsel to submit an ordinary appellate brief for the first time - no matter how frivolous counsel regards the claims to be - is quicker, simpler, and places fewer demands on the appellate courts."

Turning to rulings from various other jurisdictions out-of-state and on past cases where Indiana justices had commented on the Anders issue, the Indiana high court noted that it also finds fairness issues with the procedure because it flags a case as meritless and creates a more perfunctory review by appellate judges.

"We understand the frustration of the Court of Appeals in receiving underdeveloped briefs and poorly substantiated arguments," the justices wrote. "We also recognize that our decision to prohibit Anders withdrawals may in some cases perpetuate the filing of 'perfunctory' appeals. But in a direct appeal, a convicted defendant is entitled to a review by the judiciary, not by overworked and underpaid public defenders."

The Indiana justices pointed out that the federal justices in 2000 said states could craft their own policies to supplement or offer alternatives to Anders for indigent criminal appeals, and outlined how Indiana Professional Conduct Rule 3.1 includes a comment permitting an attorney to proceed on a defense that might be unjust but not preventing him or her of defending someone charged with a crime. Bryan G. Mosley in this appeal used that conduct rule to make state constitutional claims against the Anders withdrawal, but the Hoosier justices didn't bite and based their opinion here on the court's "supervisory authority over matters of appellate procedure and professional responsibility."

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  1. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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