Abstract

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a sufficient advocate.

The system is broken, but the solution is simple: a multi-tiered process of counsel review. If three competent lawyers, adequately incentivized by compensation, all agree that there is no basis for appeal, the court should permit withdrawal and consider the right to appellate counsel satisfied. Lawyers need not betray the clients, and courts need not get involved. The client, while still lacking a lawyer willing to pursue the appeal, has nevertheless had a sufficient substitute for purposes of the right to appellate counsel.

Keywords

Appeals, Criminal Appeals, Anders, Appellate Review, Right to Counsel

Publication Date

2019

Document Type

Article

Publication Information

53 Akron Law Review 481 (2019)

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COinS Andrew S. Pollis Faculty Bio