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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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