Tuesday, May 08, 2012

Where a quasi Anders brief was filed by counsel along with pro se filings by appellant, Court of Appeals reiterates that there is no constitutional right to hybrid representation and that to do so is also in violation of Local Appellate Rule 31.3

Mr. Turner was indicted on three weapons offenses including 924(e) and was convicted after trial. In United States v. Turner, No. 10-4573 (E.D.PA 04/19/12), the Court of Appeals affirmed the conviction. In doing so, the Court noted the "unusual turns" this case took on appeal and addressed several issues that were raised as a result.

On appeal, the "unusual turns" are as follows: First, Mr. Turner’s counsel filed a "quasi Anders brief" which raised two colorable arguments and nine frivolous arguments - in it there was no request to withdraw as counsel; Second, Mr. Turner filed a pro se pleading that the Court construed to be a motion for leave to file supplemental brief - in it he requested that counsel withdraw and he raised new arguments on the merits; Third, and in response to Turner’s pro se filing, his counsel filed a Motion for Leave for Appellant to File a Pro Se Supplemental Brief, noting that Third Circuit Local Appellate Rule 31.3 permitted the filing of a supplement brief, "if appropriate." Both the "quasi Anders brief" and the pro se document were forwarded to the merits panel. In response, the Government asked the Court to reconsider, arguing that Turner was seeking "hybrid representation." Turner responded pro se and argued that he was entitled to "hybrid representation" because he and his counsel were divided on meritorious issues. His counsel then filed a response reiterating that this was an "unusual case," adding that a "quasi Anders brief" was filed in order to make any arguments possible on behalf of the client while also addressing arguments the client insisted be made despite the advice of counsel. The motions panel denied the Government’s motion for reconsideration. Thereafter the Government filed a merits brief addressing the two colorable claims filed by Mr. Turner’s counsel but refusing to address the remaining claims arguing that it was prohibited by Local Appellate Rule 31.3. Turner’s counsel filed a reply brief arguing that Rule 31.3 was ambiguous and permitted the filing of a supplement brief in the unusual case. The Court of Appeals then granted a yet to be ruled on request for leave for Turner to file a supplemental brief. In response, Turner filed another brief which raised four additional issues but without any legal support. The Government, confused, argued that the Court should not consider the pro se arguments while Turner was represented by counsel.

The Court of Appeals then turned to the two non-frivolous claims raised by Turner’s counsel. With little discussion, the Court found no plain error in both his argument that a limiting instruction should have been given regarding a cooperating witnesses and in its admission of evidence it deemed relevant.

The Court then took the opportunity to explain the proper procedure counsel should follow when a disagreement exists with their clients as to which arguments to present to the Court on appeal.

First, the Court of Appeals held that a "quasi Anders brief," though well intentioned, was improper. The Court noted that there is no constitutional obligation for counsel to present frivolous arguments. The Court also found that the Rules of Professional Responsibility do not propose such a solution to these types of disagreements. To the contrary, the Rules suggest counsel has an ethical obligation to not pursue frivolous appeals. An Anders brief is not a "substitute for an advocate’s brief on the merits." To do otherwise, vis-a-vis a "quasi Anders brief" runs afoul of these principles. The Rules of Professional Responsibility propose that if such disagreements exist the client should discharge their lawyer - although the Court cautioned that an indigent appellant does not have a right to counsel of choice nor does an appellant have a right to proceed pro se.

Second, the Court of Appeals held that it would not accept the invitation to consider Mr. Turner’s pro se filings as it is prohibited by Local Rule 31.3 which forbids such consideration when he was represented by counsel. The Court noted that it may have considered such filings in the past, but that practice should have been abrogated once Local Rule 31.3 was adopted in 2002. It also clarified that the Local Rule permits supplemental filings by "counsel" and not by represented party. This ensures that "counsel and the client speak with one voice" and avoids the "morass of hybrid advocacy" that this case presented.

1 comment:

  1. As counsel representing indigent defendants, I find the Anders process problematic in many respects -- notably, forcing counsel to choose between arguing against clients' interests and squelching clients' ability to give voice to arguments that they -- with their liberty at stake -- should hav some ability to raise. And if there is, indeed, a distinction between arguments "without merit" (which counsel can raise) and "frivolous" (which counsel cannot raise), has anyone ever articulated in a truly useful way what that distinction is? With respect, I think that how to properly balance the competing interests of judicial efficiency/economy, indigents' access to the courts, and maintaining the attorney/client relationship needs careful thought that goes beyond recourse to current rules.

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