Nickols v. Gagnon, 71-1507.

• Decision Date: 21 December 1971
• Docket Number: No. 71-1507.,71-1507.
• Citation: 454 F.2d 467
• Parties: O. D. NICKOLS, Petitioner-Appellant, v. John R. GAGNON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

454 F.2d 467 (1971)

O. D. NICKOLS, Petitioner-Appellant, v. John R. GAGNON, Respondent-Appellee.

No. 71-1507.

United States Court of Appeals, Seventh Circuit.

December 21, 1971.

O. D. Nickols, Wayne D. Landsverk, Correctional Internship Program, Univ. of Wisconsin, Madison, Wis., for petitioner-appellant.

Robert W. Warren, Atty. Gen., Madison, Wis., William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.

Before MAJOR, Senior Circuit Judge, FAIRCHILD and STEVENS, Circuit Judges.

STEVENS, Circuit Judge.

A Wisconsin jury found appellant guilty of murder. Counsel appointed to represent him on appeal advised the State Supreme Court that he could find no reversible error in the record and was permitted to withdraw; the conviction was affirmed. In collateral proceedings, State courts and the court below rejected appellant's claim that he did not have the effective assistance of counsel guaranteed by the Fourteenth Amendment as interpreted in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. His contention requires us to review the facts of this case, the holding of Anders, and the import of the Anders opinion.

I.

The evidence of appellant's guilt included the testimony of an eyewitness, corroborated by a pathologist's findings, and a confession which appellant made when he went to the police station on his own initiative to report the death, details of which were corroborated by physical evidence which he called to the attention of the police.

The attorney appointed to prosecute the appeal did not prepare an advocate's brief. He did, however, prepare a detailed letter which reflected a professional evaluation of the record and the points which might have been asserted as error. With respect to each, matter demonstrating the absence of merit was identified.¹ The letter reflects the kind of professional analysis which a trained advocate might make as a predicate to the preparation of an appellate brief; it did not, however, contain any argument urging reversal. The letter concluded with the statement:

"Consequently, I can not, in good conscience pursue an appeal on the state of the record, and ask to be relieved of further representation of the defendant."

Appellant contends that he received less effective representation than a wealthy litigant could have obtained and, therefore, Anders entitles him to a fresh appeal handled by another attorney. We, therefore, examine the Anders case.

II.

In 1957, Anders was found guilty of possession of marijuana, then a felony in California, and given an indeterminate sentence of six months to ten years. He appealed as an indigent; the appellate court granted his request for a free transcript and appointed counsel. That attorney informed the court that he would not file a brief because in his opinion there was no merit to the appeal. His letter read:

"Dear Judge Van Dyke:

"This is to advise you that I have received and examined the trial transcript of Charles Anders as it relates to his conviction of the crime of possession of narcotics.

"I will not file a brief on appeal as I am of the Opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him as they relate to his appeal.

"Mr. Anders has advised me that he wishes to file a brief in this matter on his own behalf.

"Very truly yours,

. . . . . ."²

The California court permitted Anders to file a brief in his own behalf, but refused to appoint another lawyer for him. His conviction was affirmed. Ultimately, this procedure was challenged by a habeas corpus petition filed in the federal court and reviewed in the Supreme Court. The question presented by Anders' certiorari petition was: "May a State appellate court refuse to provide counsel to brief and argue an indigent criminal defendant's first appeal as of right on the basis of a conclusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief?"³

The Supreme Court holding in the Anders case, which answered that question in the negative, is not dispositive here because the letter prepared by appellant's attorney was certainly not a mere "conclusory statement."⁴ It included a reasoned exposition of the basis for his conclusion. Nevertheless, even though the holding in Anders is not controlling here, we must consider the import of the Court's opinion.

III.

The Anders opinion has been interpreted as requiring a request to withdraw to "be accompanied by a brief arguing anything in the record that might support the appeal."⁵ Under this interpretation of Anders, an indigent has a constitutional right to have his appellate counsel advocate reversal as effectively as possible even though he has concluded that the appeal is without merit.

This interpretation attaches paramount importance to the form, rather than the substance, of a lawyer's representation. It is based on a slight, though critical, modification of the language of the Anders opinion, and fails to read that language against the reasons which Anders had advanced for holding the California practice unconstitutional.

Anders forcefully argued that the conclusory no merit letter which his lawyer had prepared provided the Court with no assistance whatsoever in making its review of the record, and of particular significance, no assurance that the lawyer had, in fact, discharged his obligation to his client in a competent and professional manner. The danger that a busy or inexperienced lawyer might opt in favor of a one sentence letter instead of an effective brief in an individual marginal case is real, notwithstanding the dedication that typifies the profession.⁶ If, however, counsel's ultimate evaluation of the case must be supported by a written opinion "referring to anything in the record that might arguably support the appeal," 386 U.S. at 744, 87 S.Ct. at 1400, the temptation to discharge an obligation in summary fashion is avoided, and the reviewing court is provided with meaningful assistance.⁷

Contrary to the interpretation of Anders for which appellant contends, that opinion does not require a petition for withdrawal to be accompanied by a brief "arguing anything in the record that might support the appeal."⁸ Nor does the word "brief" itself necessarily connote an adversary presentation of points that are demonstrably without merit. It does connote a professional exposition of all points which have sufficient significance that trained counsel would at least identify and consider them in his evaluation of an appeal.

The Anders opinion requires appointed counsel to represent his client effectively—not merely to serve as a friend of the court—and to demonstrate in writing that he has discharged his professional responsibilities. It requires that the indigent receive substantially the same assistance of counsel as one who can afford to retain an attorney of his choice.⁹ We do not, however, read the opinion as requiring appointed counsel to make arguments that he would not consider worthy of inclusion in a brief submitted on behalf of a paying client. Nor do we construe the opinion as requiring counsel to urge reversal if he can find no merit in the appeal.

Appellant argues, and others have so interpreted the Anders opinion, that there is a critical though narrow distinction between complete frivolity and absence of merit.¹⁰ In this case, counsel stated that "after careful perusal of the record and of the law, I can find no possible merit in the appeal." Since he did not use the words "wholly frivolous" which appear in the Anders opinion, it is contended that reversal is required. This is not a fair reading of that opinion. We believe the case focuses attention on the substance and quality of counsel's representation rather than the form of words used to express his conclusion. Thus, the "wholly frivolous" concept is not defined by abstract standards, but rather in terms of counsel's determination after a conscientious examination of the record.¹¹ In this case counsel's letter demonstrates that such a conscientious examination was made, and since we agree with his conclusion that there was "no possible merit in the appeal," we attach no constitutional significance to the particular words used to express his conclusion.

The fundamental shortcoming of the procedure condemned by Anders was its failure to assure an indigent substantial equality with nonindigents on appeal.¹² It has been urged that equality can only be achieved if appointed counsel is required to argue earnestly for reversal even if he is convinced that his arguments have no merit.¹³ Again, however, we believe that such an interpretation of Anders improperly elevates form over substance. If there is no merit to a proposition, the possibility that an advocate's charade would persuade an appellate court to the contrary is remote. On the other hand, if a substantial issue is identified by an adequate letter from counsel, his evaluation is not apt to foreclose its careful consideration by the court. Indeed, there may be a greater risk that vigorous argument of two or three frivolous points would actually conceal a substantial problem lurking in a record than a dispassionate review and appraisal of all of the points that might arguably support reversal.

If retained counsel are effective advocates and attentive to their professional responsibilities, they will seldom advance contentions that are groundless.¹⁴ The mere fact that such a lawyer is making an argument should indicate that it has sufficient substance to merit the court's attention. If appointed counsel were obligated in every case to make arguments that amount to little more than meaningless charades, a subtle but invidious distinction between appointed and retained counsel might develop.¹⁵ The indigent, unlike the nonindigent defendant, would lose the benefit of retained counsel's implicit representation to the court t...