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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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