262
Syllabus
477, two of the precedents on which the Anders Court relied, was that those procedures required only a determination that the defendant was unlikely to prevail on appeal, not that the appeal was frivolous. Wende, by contrast, requires both counsel and the court to find the appeal to be lacking in arguable issues, i. e., frivolous. An additional problem with the old California procedure was that it apparently permitted an appellate court to allow counsel to withdraw and then decide the appeal without appointing new counsel. Such a procedure was struck down in Penson v. Ohio, supra, because it permitted a basic violation of the Douglas right to have counsel until a case is determined to be frivolous and to receive a merits brief for a nonfrivolous appeal. Under Wende, by contrast, Douglas violations do not occur, both because counsel does not move to withdraw and because the court orders briefing if it finds arguable issues. The procedure disapproved in Anders also only required counsel to file a one-paragraph "bare conclusion" that the appeal had no merit, while Wende requires that counsel provide a summary of the case's procedural and factual history, with citations of the record, in order to ensure that a trained legal eye has searched the record for arguable issues and to assist the reviewing court in its own evaluation. Finally, by providing at least two tiers of review, the Wende procedure avoids the additional flaw, found in the Eskridge, Lane, and Douglas procedures, of having only one such tier. Pp. 278-281.
(c) The Wende procedure is also at least comparable to those procedures the Court has approved. By neither requiring the Wende brief to raise legal issues nor requiring counsel to explicitly describe the case as frivolous, California has made a good-faith effort to mitigate one of the problems that critics have found with Anders, namely, the requirement that counsel violate his ethical duty as an officer of the court (by presenting frivolous arguments) as well as his duty to further his client's interests (by characterizing the client's claims as frivolous). Wende also attempts to resolve another Anders problem—that it apparently adopts gradations of frivolity and uses two different meanings for the phrase "arguable issue"—by drawing the line at frivolity and by defining arguable issues as those that are not frivolous. Finally, the Wende procedure appears to be, in some ways, better than the one approved in McCoy, and in other ways, worse. On balance, the Court cannot say that the latter, assuming, arguendo, that they outweigh the former, do so sufficiently to make the Wende procedure unconstitutional, and the Court's purpose under the Constitution is not to resolve such arguments. The Court addresses not what is prudent or appropriate, but what is constitutionally compelled. United States v. Cronic, 466 U. S. 648, 665, n. 38. It is enough to say that the Wende procedure, like the
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007