What is ineffective assistance of appellate counsel?

Ye blind guides, which strain at a gnat and swallow a camel. — Matthew 23: 24.

In an unusual burst of candor, New York’s highest court recently confessed to what we’ve always suspected: if your appeal is a loser, it don’t amount to a hill of beans what your brief is like. People v. Alvarez (2019).

The issue was: does a badly written brief constitute ineffective assistance of appellate counsel, entitling Mr. Alvarez to a second shot? Fuggetaboutit, said the majority.  Granted, the brief “was somewhat terse, could have been better drafted, and is not a model to be emulated.” But how bad a brief could it be if the First Department understood it well enough to affirm the conviction? And where, in the same decision, the court affirmed the convictions of the two co-defendants, whose hot-dog appellate lawyers had raised the same issues?

So the majority decided that appellate counsel — a court-appointed sole practioner admitted to the Bar in 1958 and now appearing before the Great Court in the Sky — wasn’t ineffective “under our undemanding standard.” (Undemanding standard? We’ll remember that next time one of their nitpicking clerks calls up about some piece of paper we forgot to send).

But the two dissenting judges couldn’t resist scapegoating the lawyer for everything that’s wrong with the system, including that the appellant had been sentenced to 66 and 2/3 years, is desperately ill, and has 40 more years to go before he can even apply for parole.

The dissenters, one a former California white-shoe lawyer and the other a former law professor from New York City’s leading safety school, have no clue what it’s like to argue to the First Department.

Counsel “waited” over three years to file! scolds the professor.  The case was on the dismissal calendar, definitive proof of his moral laxity! Didn’t seek leave to the Court of Appeals! Didn’t write to the client! Didn’t cite cases, didn’t spell right, didn’t proofread, confuses “legal sufficiency” with “weight of the evidence,” incorrectly refers to the People as “plaintiff-appellee,” and — trigger warning for anyone traumatized by bad grammar — “uses the contraction it’s for the possessive.”  

The judge helpfully supplies a link to the offending brief to give “quick and easy perpetual access” so that “practionioners, educators and law students” can spit at it.  “To the organized bar,” she intones, “I ask: Is this an acceptable work product? Would any one of your members submit this on behalf of a client?”

Okay, okay, the lawyer should have put the brief through spellcheck and dropped a line to the client now and then. As for “legal sufficiency” versus “weight of the evidence,” we have yet to see a People’s brief that understands the difference. How come they never get rapped on the knuckles?

As for appellate counsel’s “waiting” three years: the only lawyers who can say they’ve never had an appeal where three years elapsed between being appointed and filing the brief are either 1) lying; 2) working for some little boutique outfit; or 3) living someplace where there hasn’t been a trial since Lizzie Borden. Hell, in an appeal from a New York City trial, it can take three years just to get the complete record.

Same with having a case on the dismissal calendar which, despite its scary name, only means you have to move for an extension of time. It no more makes the lawyer incompetent than having an overdue library book makes you a thief.

The bottom line is that none of counsel’s shortcomings made any difference to the result.  You can be sure that, unlike Mr. Alvarez’s lawyer, the co-defendants’ lawyers correctly wrote “its” for the possessive and didn’t make typos like “there was no proof that treats to the witnesses came from any of the defendants.”  And the record shows that after losing in the First Department, they dutifully sought leave in the Court of Appeals to get that piece of paper saying “denied.”

Oh, but the New York test for ineffective assistance is whether there was “meaningful representation,” says Judge Jenny. Not like the big bad Federal standard that requires a reasonable probability that, but for counsel’s errors, there would have been a better outcome. QED, we can find appellate counsel ineffective for errors but for which there’s not a snowball’s chance in hell the outcome would have been better.

Judge California, taking the angle compassionate, goes after the lawyer for failing to urge the First Department to reduce the sentence in the interest of justice. Did we mention that Mr. Alvarez  was convicted of being an enforcer for a drug gang and shooting a 14-year old dead and permanently maiming a 15-year old?

“Because I have great faith in the commitment of the Justices of our Appellate Division to the interests of justice,” comfortably opines the judge, “I do not conclude that a request by Mr. Alvarez to reduce the minimum term of his sentence would have been doomed to failure.”

It would be nice if he’d cited even one First Department decision reducing a sentence in the interest of justice in any remotely comparable case. At best, the court sometimes shaves off a year or two in a drug possession case, often over an indignant dissent. But then, “faith” according to believers, means “we believe because it’s absurd.”

The judge’s clinching argument for finding the lawyer ineffective is: “Were Mr. Alvarez your son, would you have instructed his lawyer not to ask the Appellate Division to exercise its interest of justice jurisdiction to reduce the sentence?”

Our readers (if any) will be astonished to hear that we have a personal axe to grind.  Of course, it’s barbaric to sentence anybody to more years than he can possibly live. Nobody has the right to predict that a person will never be rehabilitated.

But all this judicial grandstanding and a dime gets you a cup of coffee. We had a client similar to Mr. Alvarez, the difference being that there was an issue that no reasonable jurist would fail to recognize as reversible constitutional error.  And although we didn’t apply the California method of choosing issues by asking “what would we do if he were our son?” we did argue for reduction of his 100-year sentence.

Judge Wilson’s faith notwithstanding, the Appellate Division weasled out of the constitutional violation (“under the [unspecified] circumstances we find no error”) and of course didn’t reduce the sentence. A dead body, three seriously injured bystanders and some earthy remarks at sentencing? No way, unless the judges wanted their photos on the front page of the NY Post.

We sought leave in the Court of Appeals. Denied. No, no, there’s some mistake, we thought. Our guy was deprived of one of the few trial rights that the U.S. Supreme court uncompromisingly upholds. We tried again. Denied. By the same social justice warrior judge who wants law students to sneer in perpetuity at bad writing in a brief.

Straining at gnats and swallowing camels.

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in Criminal Defense Appeals, Law & Parody, Satire and parody. Bookmark the permalink.

5 Responses to What is ineffective assistance of appellate counsel?

  1. Louis Schwartz says:



  2. M. Schwartz says:

    Hilarious and sad. No, depressing. No, ever more depressing outrages in the criminal injustice system.


  3. zoe says:

    “The bottom line is that none of counsel’s shortcomings made any difference to the result.”
    Kinda makes you wonder why waste time as an attorney writing appeals?


  4. Anonymous says:

    April Fools . . . . There is one positive thing however, at least 1 judge at the CoA read that thing styled as a “brief.”


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.