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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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