Jones v. Barnes

BURGER, C.J.

We granted certiorari to consider whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every nonfrivolous issue requested by the defendant.

I
In 1976, Richard Butts was robbed at knifepoint by four men in the lobby of an apartment building; he was badly beaten and his watch and money were taken. Butts informed a Housing Authority Detective that he recognized one of his assailants as a person known to him as “Froggy,” and gave a physical description of the person to the detective. The following day the detective arrested respondent David Barnes, who is known as “Froggy.”

Respondent was charged with first and second degree robbery, second degree assault, and third degree larceny. The prosecution rested primarily upon Butts' testimony and his identification of respondent. During cross-examination, defense counsel asked Butts whether he had ever undergone psychiatric treatment; however, no offer of proof was made on the substance or relevance of the question after the trial judge sua sponte instructed Butts not to answer. At the close of trial, the trial judge declined to give an instruction on accessorial liability requested by the defense. The jury convicted respondent of first and second degree robbery and second degree assault.

The Appellate Division of the Supreme Court of New York, Second Department, assigned Michael Melinger to represent respondent on appeal. Respondent sent Melinger a letter listing several claims that he felt should be raised. Included were claims that Butts' identification testimony should have been suppressed, that the trial judge improperly excluded psychiatric evidence, and that respondent's trial counsel was ineffective. Respondent also enclosed a copy of a pro se brief he had written.

In a return letter, Melinger accepted some but rejected most of the suggested claims, stating that they would not aid respondent in obtaining a new trial and that they could not be raised on appeal because they were not based on evidence in the record. Melinger then listed seven potential claims of error that he was considering including in his brief, and invited respondent's “reflections and suggestions” with regard to those seven issues. The record does not reveal any response to this letter.

Melinger's brief to the Appellate Division concentrated on three of the seven points he had raised in his letter to respondent: improper exclusion of psychiatric evidence, failure to suppress Butts' identification testimony, and improper cross-examination of respondent by the trial judge. In addition, Melinger submitted respondent's own pro se brief. Thereafter, respondent filed two more pro se briefs, raising three more of the seven issues Melinger had identified.

At oral argument, Melinger argued the three points presented in his own brief, but not the arguments raised in the pro se briefs. On May 22, 1978, the Appellate Division affirmed by summary order. . . . The New York Court of Appeals denied leave to appeal. . . .

On August 8, 1978, respondent filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. Respondent raised five claims of error, including ineffective assistance of trial counsel. The District Court held the claims to be without merit and dismissed the petition. . . . The Court of Appeals for the Second Circuit affirmed . . . and we denied a petition for a writ of certiorari. . . .

In 1980, respondent filed two more challenges in state court. On March 4, 1980, he filed a motion in the trial court for collateral review of his sentence. That motion was denied on April 28, and leave to appeal was denied on October 3. Meanwhile, on March 31, 1980, he filed a petition in the New York Court of Appeals for reconsideration of that court's denial of leave to appeal. In that petition, respondent for the first time claimed that his appellate counsel, Melinger, had provided ineffective assistance. The New York Court of Appeals denied the application on April 16, 1980. . . .

Respondent then returned to United States District Court for the second time, with a petition for habeas corpus based on the claim of ineffective assistance by appellate counsel. The District Court concluded that respondent had exhausted his state remedies, but dismissed the petition, holding that the record gave no support to the claim of ineffective assistance of appellate counsel on “any . . . standard which could reasonably be applied." . . . . The District Court concluded:

“It is not required that an attorney argue every conceivable issue on appeal, especially when some may be without merit. Indeed, it is his professional duty to choose among potential issues, according to his judgment as to their merit and his tactical approach.” . . . .

A divided panel of the Court of Appeals reversed. . . . Laying down a new standard, the majority held that when “the appellant requests that [his attorney] raise additional colorable points [on appeal], counsel must argue the additional points to the full extent of his professional ability.” . . . . In the view of the majority, this conclusion followed from Anders v. California. . . . In Anders, this Court held that an appointed attorney must advocate his client's cause vigorously and may not withdraw from a nonfrivolous appeal. The Court of Appeals majority held that, since Anders bars counsel from abandoning a nonfrivolous appeal, it also bars counsel from abandoning a nonfrivolous issue on appeal.

[ . . . ]

The court concluded that Melinger had not met the above standard in that he had failed to press at least two nonfrivolous claims: the trial judge's failure to instruct on accessory liability and ineffective assistance of trial counsel. . . .

[ . . . ]

We granted certiorari . . . and we reverse.

II
In announcing a new per se rule that appellate counsel must raise every nonfrivolous issue requested by the client, the Court of Appeals relied primarily upon Anders v. California. . . . There is, of course, no constitutional right to an appeal, but in Griffin v. Illinois . . . and Douglas v. California . . . the Court held that if an appeal is open to those who can pay for it, an appeal must be provided for an indigent. It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal. . . . In addition, we have held that, with some limitations, a defendant may elect to act as his or her own advocate, Faretta v. California. . . . Neither Anders nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.

This Court, in holding that a State must provide counsel for an indigent appellant on his first appeal as of right, recognized the superior ability of trained counsel in the “examination into the record, research of the law, and marshalling of arguments on [the appellant's] behalf,” Douglas v. California. . . . Yet by promulgating a per se rule that the client, not the professional advocate, must be allowed to decide what issues are to be pressed, the Court of Appeals seriously undermines the ability of counsel to present the client's case in accord with counsel's professional evaluation.

Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated:

“One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” Jackson, Advocacy Before the Supreme Court. . . .

Justice Jackson's observation echoes the advice of countless advocates before him and since. . . .

[ . . . ]

There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts-often to as little as 15 minutes-and when page limits on briefs are widely imposed. . . . Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments-those that, in the words of the great advocate John W. Davis, “go for the jugular,” Davis, The Argument of an Appeal . . . in a verbal mound made up of strong and weak contentions. . . .

With the exception of these specified fundamental decisions, an attorney's duty is to take professional responsibility for the conduct of the case, after consulting with his client.

[ . . . ]

. . . . Anders recognized that the role of the advocate “requires that he support his client's appeal to the best of his ability.” [Anders v. California]. . . . Here the appointed counsel did just that. For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every “colorable” claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or our interpretation of that document requires such a standard. The judgment of the Court of Appeals is accordingly

Reversed.

[. . .]

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

. . . . I find myself in fundamental disagreement with the Court over what a right to “the assistance of counsel” means. The import of words like “assistance” and “counsel” seems inconsistent with a regime under which counsel appointed by the State to represent a criminal defendant can refuse to raise issues with arguable merit on appeal when his client, after hearing his assessment of the case and his advice, has directed him to raise them. . . .

[ . . . ]

The Constitution does not on its face define the phrase “assistance of counsel,” but surely those words are not empty of content. No one would doubt that counsel must be qualified to practice law in the courts of the State in question, or that the representation afforded must meet minimum standards of effectiveness. . . . To satisfy the Constitution, counsel must function as an advocate for the defendant, as opposed to a friend of the court. Anders v. California. . . . Admittedly, the question in this case requires us to look beyond those clear guarantees. What is at issue here is the relationship between lawyer and client-who has ultimate authority to decide which nonfrivolous issues should be presented on appeal? I believe the right to “the assistance of counsel” carries with it a right, personal to the defendant, to make that decision, against the advice of counsel if he chooses.

Of course, a State may also allow properly supervised law students to represent indigent defendants. . . .
If all the Sixth Amendment protected was the State's interest in substantial justice, it would not include such a right. However, in Faretta v. California . . . we decisively rejected that view of the Constitution, ably advanced by Justice BLACKMUN in dissent. Holding that the Sixth Amendment requires that defendants be allowed to represent themselves, we observed:

“It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. . . . Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’" Illinois v. Allen. . . .

Faretta establishes that the right to counsel is more than a right to have one's case presented competently and effectively. It is predicated on the view that the function of counsel under the Sixth Amendment is to protect the dignity and autonomy of a person on trial by assisting him in making choices that are his to make, not to make choices for him, although counsel may be better able to decide which tactics will be most effective for the defendant. Anders v. California also reflects that view. Even when appointed counsel believes an appeal has no merit, he must furnish his client a brief covering all arguable grounds for appeal so that the client may “raise any points that he chooses.” [Anders v. California]. . . .

The right to counsel as Faretta and Anders conceive it is not an all-or-nothing right, under which a defendant must choose between forgoing the assistance of counsel altogether or relinquishing control over every aspect of his case beyond its most basic structure ( i.e., how to plead, whether to present a defense, whether to appeal). A defendant's interest in his case clearly extends to other matters. Absent exceptional circumstances, he is bound by the tactics used by his counsel at trial and on appeal. Henry v. Mississippi. . . . He may want to press the argument that he is innocent, even if other stratagems are more likely to result in the dismissal of charges or in a reduction of punishment. He may want to insist on certain arguments for political reasons. He may want to protect third parties. This is just as true on appeal as at trial, and the proper role of counsel is to assist him in these efforts, insofar as that is possible consistent with the lawyer's conscience, the law, and his duties to the court.

[ . . . ]

. . . the Court argues that good appellate advocacy demands selectivity among arguments. That is certainly true-the Court's advice is good. It ought to be taken to heart by every lawyer called upon to argue an appeal in this or any other court, and by his client. It should take little or no persuasion to get a wise client to understand that, if staying out of prison is what he values most, he should encourage his lawyer to raise only his two or three best arguments on appeal, and he should defer to his lawyer's advice as to which are the best arguments. The Constitution, however, does not require clients to be wise, and other policies should be weighed in the balance as well.

It is no secret that indigent clients often mistrust the lawyers appointed to represent them. . . . There are many reasons for this, some perhaps unavoidable even under perfect conditions-differences in education, disposition, and socio-economic class-and some that should (but may not always) be zealously avoided. A lawyer and his client do not always have the same interests. Even with paying clients, a lawyer may have a strong interest in having judges and prosecutors think well of him, and, if he is working for a flat fee-a common arrangement for criminal defense attorneys-or if his fees for court appointments are lower than he would receive for other work, he has an obvious financial incentive to conclude cases on his criminal docket swiftly. Good lawyers undoubtedly recognize these temptations and resist them, and they endeavor to convince their clients that they will. It would be naive, however, to suggest that they always succeed in either task. A constitutional rule that encourages lawyers to disregard their clients' wishes without compelling need can only exacerbate the clients' suspicion of their lawyers. As in Faretta, to force a lawyer's decisions on a defendant "can only lead him to believe that the law conspires against him." . . . . In the end, what the Court hopes to gain in effectiveness of appellate representation by the rule it imposes today may well be lost to decreased effectiveness in other areas of representation.

The Court's opinion also seems to overstate somewhat the lawyer's role in an appeal. While excellent presentation of issues, especially at the briefing stage, certainly serves the client's best interests, I do not share the Court's implicit pessimism about appellate judges' ability to recognize a meritorious argument, even if it is made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it. If the quality of justice in this country really depended on nice gradations in lawyers' rhetorical skills, we could no longer call it “justice.” Especially at the appellate level, I believe that for the most part good claims will be vindicated and bad claims rejected, with truly skillful advocacy making a difference only in a handful of cases. In most of such cases-in most cases generally-clients ultimately will do the wise thing and take their lawyers' advice. I am not willing to risk deepening the mistrust between clients and lawyers in all cases to ensure optimal presentation for that fraction-of-a-handful in which presentation might really affect the result reached by the Court of Appeals.

Finally, today's ruling denigrates the values of individual autonomy and dignity central to many constitutional rights, especially those Fifth and Sixth Amendment rights that come into play in the criminal process. Certainly a person's life changes when he is charged with a crime and brought to trial. He must, if he harbors any hope of success, defend himself on terms-often technical and hard to understand-that are the State's, not his own. As a practical matter, the assistance of counsel is necessary to that defense. . . . Yet, until his conviction becomes final and he has had an opportunity to appeal, any restrictions on individual autonomy and dignity should be limited to the minimum necessary to vindicate the State's interest in a speedy, effective prosecution. The role of the defense lawyer should be above all to function as the instrument and defender of the client's autonomy and dignity in all phases of the criminal process.

[ . . . ]

The Court subtly but unmistakably adopts a different conception of the defense lawyer's role-he need do nothing beyond what the State, not his client, considers most important. In many ways, having a lawyer becomes one of the many indignities visited upon someone who has the ill fortune to run afoul of the criminal justice system.

I cannot accept the notion that lawyers are one of the punishments a person receives merely for being accused of a crime. Clients, if they wish, are capable of making informed judgments about which issues to appeal, and when they exercise that prerogative their choices should be respected unless they would require lawyers to violate their consciences, the law, or their duties to the court. On the other hand, I would not presume lightly that, in a particular case, a defendant has disregarded his lawyer's obviously sound advice. . . . The Court of Appeals, in reversing the District Court, did not address the factual question whether respondent, having been advised by his lawyer that it would not be wise to appeal on all the issues respondent had suggested, actually insisted in a timely fashion that his lawyer brief the nonfrivolous issues identified by the Court of Appeals. . . . If he did not, or if he was content with filing his pro se brief, then there would be no deprivation of the right to the assistance of counsel. I would remand for a hearing on this question.