Our company boss-persons recently decreed that the office’s 50-year archive of vintage appellate briefs must go. We sadly watched as giant blue bins were loaded to the brim with typewritten pre-computer gems of scholarship and advocacy, condemned to be recycled into toilet paper. But let’s face it, a losing brief is already trash. Imagine the size of the dumpsters at the Appellate Division!
But we keep writing briefs anyway. What for?
Well, maybe if there were no appeals, the criminal process would look like this:
Judge: Your client is obviously guilty or the police wouldn’t have arrested him. I order him to take a plea.
Defense counsel and prosecutor (combined into one person to conserve scarce judicial resources): Yes, Your Honor, consider it done.
Judge: And waive his right to appeal. I never want to see that shmo again.
Combined counsel: Yes, Judge.
Judge: The sentence is a prison term of 500 years to be followed by 100 years of post-release supervision.
Defendant: But I didn’t plead guilty! And I’m only charged with spitting on the sidewalk!
Judge: Ha, ha, what are you going to do about it?
But thanks to the noble army of appellate lawyers indignantly waving our tiny arms and threatening judges with a one in gazillion chance of getting reversed, plea proceedings look like this:
Judge: Youunderstandthatbypleadingguiltyyougiveupyourrighttogototrial andholdtheprosecutiontoitsburdenofproofcrossexaminethewitnesses callwitnessesonyourbehalfandrequireaunanimousverdictbyajuryoftwelve. Void where prohibited, some restrictions may apply. Do you understand?
Judge: And you have to waive your right to appeal.
Judge: Your bargain discount sentence is a prison term of a mere 100 years, to be followed by 100 years of post-release supervision.
Some nitpickers whine that the plea process is an assembly line. Like assembly lines are bad! Even the crummiest factory has inspectors who weed out the three-armed sweaters and two-headed barbie dolls. So what’s wrong with having appellate lawyers inspect the guilty pleas and appeal waivers coming off the conveyor belt?
Plenty, fumes Justice Thomas, dissenting in Garza v. Idaho (2019), where Justice Sotomayor floats the radical notion that if a client asks his lawyer to file a notice of appeal, the lawyer should just do it. A notice of appeal is nothing but a form that takes five minutes to fill out telling the court that the client wants to pursue an appeal. It doesn’t commit the lawyer to anything. But because Garza’s lawyer refused to file it, Garza lost all opportunity to appeal. Sotomayor found this to be ineffective assistance of counsel.
Another “defendant-always-wins rule!” cries Thomas. Garza had no right to appeal! He pled guilty, signed an appeal waiver and that’s that!
But Sotomayor (former Bronx prosecutor) points out that some rights are nonwaivable, even with an appeal waiver. And some plea proceedings, we’re here to tell you, aren’t too different from our parody. So a defendant has a perfect right to have his lawyer file a notice of appeal, even after an appeal waiver. He can always decide not to follow it up if getting the plea vacated means risking a longer sentence. As the Idaho defense lawyers argue in their friendly brief, the worst that can happen is that some appellate lawyer has to write an Anders brief showing why there are no “non-frivolous” issues. But it’s not okay to refuse your client’s request to file a notice.
Thomas, after kvetching that this amounts to imposing “mechanical rules” on lawyers (as if lawyers were a bunch of Montessori kindergarteners), goes on to rail against the whole notion of any constitutional right to counsel. Back in the good old days when children could be hanged for stealing a piece of cheese, the right to counsel meant only that an accused couldn’t be prohibited from having a lawyer, “not as a guarantee of government-funded counsel.”
According to Thomas, the Supreme Court has been tobogganing down the slippery slope ever since Gideon v. Wainwright to the point where indigent criminals can demand not only counsel, but effective counsel! Imposing a crushing burden on taxpayers! Why! exclaims Thomas, the Federal Government’s budget for defense counsel is over $1 billion!
Apparently not realizing that $1 billion is peanuts to us taxpayers forking out $25 billion for a wall.