298
Souter, J., dissenting
indigent appellant is adequately protected because the lawyer assigned to a case under California's assigned counsel scheme may not file a Wende brief without the approval of a supervisor. The point is the need for some affirmative and express indicator that an advocate has been at work, in the form of a product that an appellate court can specifically review.5 Thus Anders requires counsel to flag the best issues for the sake of keeping counsel on his toes and giving focus to judicial review of his judgment. Wende on the other hand requires no indication of conceivable issues and hence nothing specifically reviewable by a court bound to preserve the system's adversary character. Wende does no more to protect the indigent's right to advocacy than the no-merit letter condemned in Anders, or the conclusory statement disapproved in Penson.
On like reasoning, Wende is deficient in relying on a judge's nonpartisan review to assure that a defendant suffers no prejudice at the hands of a lawyer who has failed to document his best effort at partisan review. Exactly because our system assumes that a lawyer committed to a client is the most dependable guardian of the client's interest, see supra, at 296-297, we have consistently rejected procedures leaving the determination of frivolousness to the court in the first instance, see Douglas, supra, at 355-356, or to the court following a conclusory declaration by counsel, see Penson, supra, at 81-82, or to the court assisted by counsel in the role of amicus curiae, see Ellis, 356 U. S., at 675. The defect in these procedures is their entire reliance on review by a detached magistrate who does not apply the partisan scrutiny in the first instance that defendants with paid lawyers get as a matter of course.
5 Since the state petitioner's claims that the lawyer's unrevealing and conclusory certification has been approved by a superior are neither here nor there on my analysis, I need not evaluate assertions by amicus Delgado that there is no scheme of assigned representation uniform throughout the State, see Brief for Jesus Garcia Delgado as Amicus Curiae 8.
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