U.S. v. Edwards
| Decision Date | 14 November 1985 |
| Docket Number | No. 85-1934,85-1934 |
| Citation | 777 F.2d 364 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leslie EDWARDS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Sheldon Nagelberg, Chicago, Ill., for defendant-appellant.
Scott F. Turow, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUDAHY, ESCHBACH and POSNER, Circuit Judges.
Counsel for the defendant in this criminal appeal, which has not yet been briefed or argued, has submitted a document captioned "brief" which reads in its entirety as follows:
SHELDON NAGELBERG, appointed counsel for LESLIE EDWARDS, the Defendant-Appellant in the above numbered appeal, seeks permission of this Court to withdraw in accord with the principles enumerated in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accord with such SHELDON NAGELBERG certifies that
a. He has examined the entire transcript of the trial and sentencing hearing and cannot locate anything in the record that might arguably support an appeal;
b. He believes, after a conscientious examination of the record, that such an appeal is wholly frivolous, notwithstanding the existence of facts previously stated in SHELDON NAGELBERG'S Petition Not To Be Appointed Counsel For the Defendant-Appellant, and a Petition For Reconsideration.
The Anders decision cited in Mr. Nagelberg's "brief" allows an appointed counsel in a criminal appeal to seek permission to withdraw as counsel on the ground that an appeal would be in his opinion frivolous. See 386 U.S. at 744, 87 S.Ct. at 1400. A lawyer, after all, has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court, so if he believes in good faith that there are no other arguments that he can make on his client's behalf he is honor-bound to so advise the court and seek leave to withdraw as counsel. The court can then decide whether to appoint another counsel or allow the appellant to proceed on his own.
In Anders, however, the Supreme Court disapproved the use of a "no merit" letter, see id. at 745, 87 S.Ct. at 1400, whereby the lawyer merely advises the court of his conclusion that the appeal is frivolous. Since, speaking realistically, a criminal defendant who has money will always be able to persuade some lawyer to prosecute an appeal for him, parity--or, again speaking realistically, an approximation to parity--between criminal defendants who do and those who do not have monetary means requires that the appointed counsel who wants to withdraw not leave his client wholly in the lurch, which is the practical consequence of the "no merit" letter. Instead he must file a brief that will advise the court of what points he might have raised and why he thinks they would have been frivolous. See id. at 744, 87 S.Ct. at 1400. This...
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...he can make on his client's behalf he is honor-bound to so advise the court and seek leave to withdraw as counsel." United States v. Edwards, 777 F.2d 364, 365 (CA7 1985). When retained counsel concludes that an appeal would be frivolous, he or she has a duty to advise the client that it wo......
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