Cite as: 528 U. S. 259 (2000)
Souter, J., dissenting
It goes without saying, too, that Wende's reliance on judges to start from scratch in seeking arguable issues adds substantially to the burden on the judicial shoulders. While I have no need to decide whether this drawback of the Wende scheme is of constitutional significance, it raises questions that certainly underscore the constitutional failing of relying on judicial scrutiny uninformed by counsel's partisan analysis. In an amicus brief filed in this case, 13 retired justices of the Supreme Court or Courts of Appeal of California have pointed out the "risk that the review of the cold record [under the Wende scheme] will be more perfunctory without the issue-spotting guidance, and associated record citations, of counsel." Brief for Retired Justice Armand Arabian et al. as Amici Curiae 5. The amici have candidly represented that "[w]hen a California appellate court receives a Wende brief, it assigns the case to a staff attorney who prepares a memorandum analyzing all possible legal issues in the case. Typically, the staff attorney then makes an oral presentation to the appellate panel . . . ." Id., at 6. When the responsibility of counsel is thrown onto the court, the court gives way to a staff attorney; it could not be clearer that Wende is seriously at odds with the respective obligations of counsel and the courts as contemplated by the Constitution.
III
Unlike the Court, I reach the question of appropriate relief. With respect to respondent's Anders claim, the Court of Appeals premised its disposition on finding that two potentially meritorious issues showed that Robbins had been prejudiced by the failure of the Wende scheme to result in their litigation. I think it unnecessary to invoke such findings, however, and would hold for Robbins simply because of the failure to provide an advocate's analysis of issues as a predicate of court review. Without more, I would, in effect, require the state courts to reinstate the appeal for treatment consistent with the Anders application of Griffin.
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