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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.