Transcript

IN THE SUPREME COURT OF THE UNITED STATES

GEORGE SMITH, WARDEN, Petitioner v. LEE ROBBINS

No. 98-1037

October 5, 1999

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:06 a.m.

APPEARANCES:

CAROL F. JORSTAD, ESQ., Deputy Attorney General, Los Angeles, California; on behalf of the Petitioner.

RONALD J. NESSIM, ESQ., Los Angeles, California; on behalf of the Respondent.

PROCEEDINGS

(11:06 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Smith v. Robbins.

ORAL ARGUMENT OF CAROL F. JORSTAD

ON BEHALF OF THE PETITIONER

MS. JORSTAD: Mr. Chief Justice, and may it please the Court:

This case concerns one of the hardy perennials of American law, what to do with a meritless criminal appeal when that appeal is brought by an appointed lawyer on behalf of an indigent client, and what the standard of reversal in such cases should be.

This Court addressed the problem in Anders v. California, holding that the indigent appellant in that case had his equal protection and due process rights to counsel on appeal violated by California's conclusory no-merit letter.

Anders has two component parts. The first is the identification of the constitutional rights at stake, and the second is the setting forth of a procedure by which those rights can be vindicated. The Ninth Circuit thinks that the Anders framework, the second part, is compulsory. We think not. In fact, we believe that the Ninth Circuit's insistence on rigid, programmatic adherence to that procedure has undermined California's legitimate efforts to provide effective assistance to indigent appellants.

The second issue is whether the Strickland test for ineffective assistance should apply to meritless indigent appeals. Federal habeas is intended to guard against extreme malfunctions in the State procedure. Ordinarily, Federal courts presume the regularity of State court judgments, but not in no-merit cases. In those cases, prejudice is presumed. This is presents problems, because it is altogether too one-sided, and because it turns the presumption of regularity on its head.

A presumption of prejudice should be reserved for cases where the error is so systemic that it's impossible to judge what the harm is, and the examples given generally are those of judicial bias and actual denial of counsel.

We urge that Strickland be adopted to bring this one anomalous situation into conformity with other cases where deficient performance by counsel is urged.

QUESTION: Ms. Jorstad, the problem that I have with that is not a theoretical problem, but kind of a practical one, and that is this, that if we require a demonstration of Strickland prejudice at the habeas stage, once there's been found to be an Anders violation, if we require the demonstration of Strickland prejudice at that stage, as a practical matter, what we are going to do is require the argument of the appeal in the first instance in a Federal court.

And number 1, that's going to take some serious time, and the oddity -- when you get to standing on head argument, the oddity is that you're going to have your appeal argued in the first instance in a Federal court, whereas in the first instance it shouldn't be, so for pragmatic reasons it seems to me that there's an argument that it makes a lot of sense to say that once you have shown the Anders violation, and let's say, to go -- I'd go this far for the sake of argument.

Once you've shown that there's a possibility that there could be a difference, that there might be some merit, that's as much as you should require, or in effect you're going to turn Federal courts in habeas cases on Anders into State appellate courts.

MS. JORSTAD: Justice Souter, I believe that that's not an overall concern. I think if we look at this in the context of merits briefs, where counsel raises one or two or three issues, but fails to raise one or two or three others, the Federal courts are in much the same position.

They're going to have to look -- in a Strickland context, there is no presumption of prejudice, but in a Strickland context they're going to have to look at these other issues that will be asserted on Federal habeas, and of course, they should have been exhausted in State court as well, so it won't be the first time.

QUESTION: Ms. Jorstad, doesn't the strength of your second argument on the prejudice and so forth from Strickland depend to a certain extent on whether we agree with you that the constitutional rights for the appellants discussed in Anders do not require that the particular Anders remedy be etched in stone, that other remedies would be equally effective? Isn't that going to influence somewhat the outcome of the Strickland analysis in the second prong?

MS. JORSTAD: Yes, it is, Mr. Chief Justice. Our position on this matter is that the first component of Anders, that is, the rights to be vindicated, is strictly constitutional. It goes to effective or ineffective assistance, and can always be raised in Federal court.

The second part of Anders, this prophylactic framework, is not constitutional. This is a matter of pragmatic suggestion by the court in Anders, and we believe that these rights can be vindicated. After all, what we're talking about is effective assistance of counsel, we're talking about equal protection, and to a lesser extent, due process, and the laboratory of the States should be allowed to develop these procedures in ways that make sense in those States, as long as they vindicate the underlying rights.

QUESTION: Do you believe as a general proposition that, if this Court identifies a constitutional violation, and says the way this violation is to be avoided in the future is to follow steps A, B, and C, that any court, State or Federal for that matter, is free to say, well, we really don't like A, B, and C, we'll try C, D, and F?

Do you believe that the lower courts are free, when we have come up with a pragmatic constitutional solution and says, this is the way it is to be avoided, are they free to ignore that?

MS. JORSTAD: I certainly don't think that any court is free to ignore this Court, but I would say that lower Federal courts certainly seem to me to be obliged, because of this Court's supervisory powers in addition to its constitutional jurisdiction, to follow whatever procedure this Court sets forth, but it has been the custom over many, many years for State courts to have some flexibility in interpreting this Court's procedural suggestions --

QUESTION: Do you think this Court is free to interpret its own opinions to decide that perhaps a suggestion in the opinion, or a formula, was not mandatory but could be replaced by an equally acceptable one?

MS. JORSTAD: I do, Mr. Chief Justice. I do.

QUESTION: But if it is mandatory, what's your answer then?

MS. JORSTAD: But if it is mandatory? If it is mandatory, if, in fact, this Court said what it meant and meant what it said in Anders, and if this court holds that as a matter of constitutional law that procedure were required, then California is not in compliance.

QUESTION: I thought we -- we don't mandate anything. We're not like a legislature. We don't issue prescriptions. I suppose the only real holding in Anders, the only holding in the actual case was that what occurred there did not comply with the Constitution.

MS. JORSTAD: I would agree with that.

QUESTION: And the further statement that in order to comply with the Constitution you have to do this, this, this, and this can be regarded as dictum, which you would be well-advised, if you're a lower court, to follow, but I'm not sure that a legislature has the obligation to follow that prescription as though we were laying down a prescription.

We decided in Anders that what occurred there did not provide effective assistance of counsel.

MS. JORSTAD: Yes, Your Honor. In fact, what was decided in Anders was that it didn't provide counsel at all and, of course, Anders antedated Strickland by 17 years, so there was no real test for prejudice in that case.

California took Anders very seriously, and so -- and People v. Feggans followed it very, very closely, but over time, things changed, and what has happened in the last 32 years and even less, really, is that California's system for providing representation to indigents has become more and more sophisticated, has become more established.

This is not a situation any longer. There is no indigent in the State of California who will be represented by some solo lawyer who crawls out of the woodwork. Everybody is responsible to the Appellate Projects. The Appellate Projects actually seek out lawyers, they train them, they match lawyers --

QUESTION: Well, but I guess -- why don't you help us understand what the California procedure is. A lawyer there representing an indigent defendant can find -- can conclude that he finds no valid grounds for overturning the appeal, and just write something to the court saying that, but not asking to withdraw, and not pointing out any arguable issues.

MS. JORSTAD: Let me --

QUESTION: Is that right? I mean, that's acceptable. That's what happened here.

MS. JORSTAD: No, it is not, Your Honor. I think that's --

QUESTION: I thought what happened here was that the lawyer found no grounds that he thought justified going further, and so advised the California courts, and did not ask to withdraw, and did not point out any so-called arguable issues.

MS. JORSTAD: If I may recap, that's I guess correct as far as it goes, but there are other aspects to it.

When the lawyer has decided that there's no merit to the brief, and when his appellate supervisor, his Appellate Project supervisor, who's an expert, concurs, he may file a brief under California procedure in which he sets forth a detailed statement of the case and statement of the facts with citations to the record which help the court to know that the record has been read and considered.

In the record, in the brief filed in this particular case, counsel mentioned in his statement of the case that there had been a Faretta motion, that the appellant's competency had been tested, and that there had been two so-called Marsden motions. In California they're for replacement of counsel. So those issues were kind of identified in the statement of the case.

In addition, you're correct in saying, Justice O'Connor, that he does not withdraw, and he asks the court -- he also does not, pursuant to the Wende case, argue against his client. What he does is to ask the court to make an independent review.

This allows the court to look at the record without having a list of issues that counsel has read, researched, and rejected. The idea here is to have the court take a fresh look, and that is in fact the holding of Wende, is that an independent review by the court is required.

QUESTION: Now, does the appellate -- does the counsel for the Appellate Project continue to participate at that point, or does he stand aside, just as the attorney stood aside?

In other words, the retained attorney consults the lawyer for the California Appellate Project, and that lawyer concurs with the judgment that there should be a Wende brief. Is that Appellate Project lawyer now out of the process, or does he continue to assist the court?

MS. JORSTAD: No, he would not assist the court, Your Honor. I think the main thing to be aware of in the California system is that the effort is to have the advocacy come at the front end. There's something like the Emperor's new clothes about saying vigorous advocacy in the context of a brief that's decided -- that they decide has no merit.

QUESTION: Yes, but the thing I wonder -- I think California has a pretty good system, frankly, and if I were designing one, maybe it would be California's, but the problem that I see is that we have an adversary system, basically, in the country and Anders says, you have a right to a lawyer, criminal defendant, and you have a right, as part of that, to have the lawyer think through on appeal what are his best arguments.

Now, we want him to go through that process, write down what his best arguments are, and if he thinks they're still no good, tell us why. That's part of what it is to be an advocate, and that's part of what it is to be a lawyer, and that's part of a right to a lawyer that you have. Now, given our adversarial system, why not?

MS. JORSTAD: Your Honor, first of all I would say that I certainly agree that the -- that any appellant has a right to a conscientious and diligent lawyer who looks for issues.

The question really, and the point of controversy really is, what is that lawyer to do when he can't find any, there's nothing there, and there are cases like that. There simply is nothing to raise that would not be violative of --

QUESTION: Well, here the Federal courts apparently concluded that there were some issues that ought to be raised and litigated.

MS. JORSTAD: Nobody -- well, first of all, I would have to say that there have been two issues raised in this context, and I think both of them are, frankly, the definition of frivolousness. The first was, there was a complaint -- well, no, there was not a complaint. The district court itself essentially raised the issue of the law library and its adequacy.

The -- I had said all along that the law library only came up in the context of the judge's Faretta warnings to Mr. Robbins telling him all of the parade of horribles that he would face if he went pro per.

QUESTION: But wasn't the issue -- not the original Faretta, but later in the proceeding it is argued, I don't know if the record supports it, that the defendant made known a desire to have assistance of counsel later on --

MS. JORSTAD: That's absolutely --

QUESTION: -- and that is not mentioned at all in the, what would pass as an Anders brief by the lawyer. What is mentioned is the original threat of going.

MS. JORSTAD: Yes. Well, let me --

QUESTION: And also --

MS. JORSTAD: I'm sorry.

QUESTION: -- I don't see that his statement did mention that another lawyer in the public defender's office reviewed what he'd done.

MS. JORSTAD: It did not.

QUESTION: It didn't.

MS. JORSTAD: Actually I don't think that's true. I --

QUESTION: So we don't know from the record whether that was actually done, do we?

MS. JORSTAD: Yes, Your Honor, we do, because there was a declaration by counsel, and I believe it's in the joint appendix -- yes, at page 43. This was filed in the district court, and he said prior to the filing of briefs I consulted with the California Appellate Project and received their permission to file a Wende brief.

QUESTION: But we don't know what the appellate -- he asked permission to file, and he got permission.

MS. JORSTAD: Yes. Yes.

QUESTION: But it doesn't show that the Appellate Project read through the record again.

MS. JORSTAD: It does not. We do have the rules, and we do have the very excellent brief of the California Academy.

QUESTION: What are the rules, Ms. Jorstad.

MS. JORSTAD: I don't know the rules verbatim, but they provide for supervision, review, and concurrence on no-merit briefs. I would like to add that --

QUESTION: Can you tell us -- take us through, because I want to get to Justice Breyer's question again, after the Wende brief is filed, then I take it that the district court of appeals has a staff that looks at this brief and talks with the court about it, is that right?

MS. JORSTAD: Either somebody on the attorney's staff or a justice reviews the entire record from scratch.

QUESTION: Now -- now, as Justice Breyer indicated, that's an interesting system. It's not really the adversary system.

MS. JORSTAD: I think, again, to return to an earlier theme, that it only really makes sense to talk about an adversary system if there is some basis for adversarial representation. If there is no merit, a lawyer in California and in most other jurisdictions cannot raise a frivolous issue.

QUESTION: Ms. Jorstad, one thing that is bothering me about this argument is, it's a kind of a trust-me argument. There is something disciplined to writing out reasons why I have concluded that although these issues I could identify, they are not worthy of the court's attention.

The discipline of saying why, explaining why, it's just like for a court. A court has to give reasons for what it does, and sometimes, in writing out those reasons, one discovers that something isn't right, that it won't write, so the discipline that a lawyer has to go through in saying, this is my thought process, this is how I arrived at the conclusion, then none of that appears. None of that appears on the record. We haven't got a clue.

And something else, too, frankly, that bothers me is, the notion that there is a judge who's going to read through this whole record in these no-merits cases doesn't comport with reality. Isn't the reality that there's going to be some staff counsel, not even a law clerk to the judge, who is going to read this and present it to a panel and say, no merit?

MS. JORSTAD: Let me take those two questions seriatim. As far as the discipline of writing down why the issue is no good, I think if we try to step back a little and look at what's the basis for requiring that might be, we're talking here about the right to counsel, and we're talking about mostly equal protection.

If you analyze this as a matter of equal protection, it would simply never be true. I can say categorically that retained counsel would have to explain to the court why he failed to raise the issues he doesn't raise, nor would appointed counsel, who raises -- you know, even if counsel in a merits brief raises a single extremely marginal issue, that counsel would never have to say to the court, here are the other issues I considered, and here are the cases that say why they're no good. It just doesn't happen.

What I'm suggesting is that we do have -- Justice Ginsburg, you said, trust me, and I think we should afford similar trust to lawyers who write no-merit briefs that we give to lawyers who write merits briefs, and specifically I would point out that under the current system it takes a lot of courage to write a no-merit brief.

Now, first of all, I would also add that it's not as if the lawyer who presents a no-merit brief can just kind of write it off and hand it in and go away with his money. He has to justify himself to the Appellate Project. The Appellate Project is going to give it and him an advocate's review. They're going to give very close scrutiny, and they are going to know things that no court will ever be able to know, because they may be told in confidence by the client --

QUESTION: I think you could have said the same thing about the certificate in Penson v. Ohio. Maybe they didn't have a second one look at it. Why don't we trust -- why wouldn't we trust that lawyer?

MS. JORSTAD: Well, I mean, I certainly -- I guess that's possible. I would say that Penson v. Ohio, the --

QUESTION: The only difference between the -- his certificate and the certificate in this case is, you've also got a statement of facts here.

MS. JORSTAD: Your Honor, this is -- no, Your Honor, that's -- there are other differences. First of all, in Penson the attorney did write just a certificate. I would suggest to the Court that what California does is far more than that. The statement of a case, the statement of the facts is a guarantee that somebody's been through that record and knows what's in it, and isn't just filing a letter out of laziness. That's one thing.

A second thing is that in Penson the lawyer was really, really wrong. That is to say, he was -- he said there were no issues at all. The court, after having dismissed him, found a number of issues and, more importantly, found a single issue which resulted in the reversal of a count, a big mistake.

Now, Penson I think would have come out the same way if there had been a Strickland test as a presumption of prejudice, but it's very, very different, because in Penson the, really the largest fault was the court's, and that is in failing to appoint counsel once they knew that the first counsel had missed big, arguable issues. That would never happen in California. In California -- and it was in Penson the State reviewing board itself which found the errors and failed to appoint counsel.

In California, if a State -- if the State court finds that there are issues that should have been raised, even counsel who has not yet been dismissed, or a new counsel in some cases will be appointed and has to brief those issues.

QUESTION: Has that ever actually happened in California?

MS. JORSTAD: Yes, Your Honor. Yes, it has, and I would like to say, Justice Ginsburg, that unlikely as it may seem, I have pretty good reason to believe that judges and/or their research attorneys do, in fact, go through these records. It's a terrible burden, and the way --

QUESTION: Some or uniformly?

MS. JORSTAD: I'm sorry?

QUESTION: Some, or uniformly?

MS. JORSTAD: Well, I can't speak for the entire bench in California, but I do know that we have reported decisions, published decisions in which judges complain bitterly about the amount of time -- I mean, they're not happy, all of them, to be doing this work.

QUESTION: Ms. Jorstad, wouldn't it be helpful to the court to have an explanation of arguable issues and why they were rejected? I mean, if I were assigned the task of going over these records, I would think that would be a good starting point for me. I'm just surprised that California is resisting having such a system.

MS. JORSTAD: Well, Your Honor, it's interesting, because both sides of the -- not both sides of the bench, but both sides of the bar, both the people and the defense, feel the same way about this.

I think that when you talk about having reasons stated to the Court for issues that have been rejected, again we need to look at what constitutional interest would be satisfied by that.

If we're talking about the Sixth Amendment, or about equal protection, I don't think that that answers those things at all, because in fact a client --

QUESTION: Does this record have any statistics or figures on how often these no -- these Wende briefs are filed in California, percentage wise?

MS. JORSTAD: As of a few years ago it was in roughly 20 percent to, maybe, in some districts as much as 25.

QUESTION: And do the statistics also tell us how often under a Wende procedure the courts would actually find arguable issues on their review and send it back?

MS. JORSTAD: They do not, Your Honor. It does happen. I've seen it happen.

I started to say a little bit earlier, I think in answer to Justice Ginsburg's question, that it takes a lot of courage under the current system to file a Wende brief. These --

QUESTION: Well, it takes a lot of courage, but one countervailing consideration, I take it as a general matter, the enormous workloads that the assigned counsel are laboring under, and that seems to me one of the distinctions that goes to the analogy you tried to draw between the situation of normally retained paid counsel and the counsel who are subject to Anders. I mean, am I missing your point?

MS. JORSTAD: I believe you are.

QUESTION: Tell me, then. Your expression tells me I am --

(Laughter.)

QUESTION: -- but I'm not sure where I have done it.

MS. JORSTAD: The counsel who are appointed by the court -- or, excuse me, appointed by the Appellate Projects, and that duty is delegated by the courts, don't have enormous case loads, at least from the Appellate Project, because the work is divided up and I think a reasonable workload is assumed and, of course, whatever the workload is for these people who file no-merit briefs, the same could be said for people who are filing merits briefs. We don't monitor them. We shouldn't monitor these folks.

QUESTION: Well, yes, but except that if they're normally retained counsel, number 1 they don't have an inducement to give short shrift to issues which they could litigate and be paid for litigating, and number 2, I had supposed that as a group they were more likely to be able to control their own work loads and not take more than they could handle.

MS. JORSTAD: I think, Your Honor, that these attorneys are equally as well able to control their work load. They are not, as is true in the Attorney General's office, a member of an office where the work load is what it is and comes at you the way it comes at you. They --

QUESTION: May I ask if you disagree with the representations made in the amicus brief filed by the retired California judges, who say the system isn't working very well?

QUESTION: I was going to ask the same question. These are very distinguished judges.

MS. JORSTAD: Yes, they are.

QUESTION: Do they just disagree as a matter of policy, or are they making a constitutional argument?

MS. JORSTAD: Thank you for asking, Justice Kennedy, because that is the point of this brief. They don't like the procedure very much, these particular judges, and the thing they don't like about it is, they say it's inefficient, they say it makes the court work too hard, they say it's a waste of resources, but in fact, if you look at that brief, there is no claim that there's any constitutional deficiency in California's procedure.

If I may, I'd like to reserve the rest of my time.

QUESTION: Very well, Ms. Jorstad.

MS. JORSTAD: Thank you.

QUESTION: Mr. Nessim, we'll hear from you.

ORAL ARGUMENT OF RONALD J. NESSIM

ON BEHALF OF THE RESPONDENT

MR. NESSIM: Mr. Chief Justice, and may it please the Court:

I would like to begin by making three points. First, both the district court and the Ninth Circuit correctly found that there were arguable issues in this case. therefore, like the defendant in Penson, Robbins had a right under Douglas v. California to an advocate's brief on the merits.

Second, Robbins' State appellate attorney did not file a proper Anders brief in this case. This was not a mere technical violation of Anders. There was no advocacy. A nonlawyer could have written the brief or document which was filed here. As the Warden concedes, it does not refer to a single legal issue.

QUESTION: Well, Mr. Nessim, supposing that under a State which follows the Anders rules, an Anders brief is filed, but -- and the State -- the Federal court finds that there was some issue that should have been raised, what does the Federal court -- can the Federal court examine that on habeas, and if it does find an issue should have been raised, what is the remedy?

MR. NESSIM: I believe the remedy should be prejudice per se, Your Honor, because the Federal court will not be guided by the advocacy process, would not be able -- does not have the information, would have to speculate, as this Court has repeatedly found, to make that determination without an advocate's presentation, if there's a finding of an arguable issue that a merits brief is required.

If there's no finding -- if -- the Federal court may not be in a position to decide if there's an arguable issue with an inadequate merits brief or an Anders brief. If there's no adequate brief that refers to the issues, the court only has the cold record, and this Court has repeatedly found that that is insufficient for the court to make its determination.

QUESTION: Well, talk about consuming time, though. I mean, here the lawyer in the State court on appeal filed a no-merits brief under Anders, and you say the Federal district court, it doesn't have to decide that there actually was any error in the State court proceedings, but only that there was an arguable issue, and then what, it goes back to the State court to have another argument on an arguable issue, without ever finding any constitutional infirmity in the trial. That does seem going around Robin Hood's barn.

MR. NESSIM: Well, I think Anders is an efficient procedure. It requires the lawyer to act as an advocate. The Federal habeas court is unable to make the determination whether the appeal is wholly frivolous, which is constitutionally required, without the assistance of an advocate and, as I think a question was asked during the Warden's presentation, it's efficient to have the State court make the determination in the first instance.

The Federal court's determination was, was there a denial to right to counsel, and this Court has repeatedly found a right to counsel on the first appeal as of right. In fact, Pennsylvania v. Findley assumes that while Anders may not be mandatory in the case of post conviction or discretionary appeals, it is mandatory where there is such a underlying constitutional right.

QUESTION: That's a different question. I'd be awfully worried about -- I agree with the Chief Justice that, suppose -- what you're saying is, if lawyer A, who's a good lawyer, perfectly good, it's not inadequate assistance, brings an appeal and leaves out issue 1 in the State court and argues the rest of it. Issue 1 is gone. It's waived, unless it was inadequate assistance of counsel, which I assume it wasn't.

You're saying lawyer A did exactly the same thing, but not having found any other issues, he files an Anders brief, which in every other respect is fine, and under those circumstances we have two more procedures, 1) the procedure in habeas court where the habeas judge says, I guess it's arguable, you should have raised it, and then back we go to State court, and this time it wasn't waived.

Now, trying to reconcile that's impossible in my mind.

MR. NESSIM: In answer to your question, Anders requires that there be an advocate on appeal. In most cases it will be a merits brief, but if the lawyer is unable to do that because of ethical reasons, it requires an Anders brief, and in Penson this Court distinguished the situation between where a lawyer acts as an advocate but acts ineffectively, in which case there's not a presumed prejudice standard, and the situation where there is no advocate at all, and we would submit there was no advocate at all here, because a proper Anders brief was filed. In fact, of the nine issues that we refer to in our brief, not one of those are even hinted at.

QUESTION: That's the other question which I have, a more important question, on which I'm quite undecided. California seems to me to have a pretty good system, frankly. I mean, if I were a criminal defense lawyer, I might say they had a better system, because a lawyer who wants to file an Anders brief is not going to be an enthusiast, while the staff attorneys are paid to find those issues.

So to decide for you might require me to decide for a system that's actually going to give the criminal defendant a less-good shot at the appeal, and that's worrying me, so I want to know your response to that.

MR. NESSIM: Your Honor, the aspect of Anders which was criticized in California is the aspect of the independent judicial review, which is independently required by California law. The Wende case that's in fact one of the two issues they face, they interpret Anders as requiring that.

We would submit to you that the California system, while certain aspects of it are good, and there's no reason that they can't stay under what we promote, they can still have this appellate project system.

I would add that most of the facts concerning that system are not in the record of this case, which was pointed out in one of the amicus files, but more importantly -- and I think this is crystal clear -- while this case should be decided under Federal constitutional law, the Warden has mischaracterized the California system, and I would refer you to In re Sade C, an opinion of the California supreme court, which does not purport to break any new ground.

It just refers the precedents which were in effect, and it says that Wende -- and I'm referring to page 787 of actually the 55 Cal. Rptr. 2d version, but Wende made clear that in such a situation all the steps specified by Anders had to be taken, other than those dependent on filing a motion to withdraw.

The implicit rationale is that for present purposes substantial withdrawal is equivalent to formal withdrawal, and in the footnote there it says that the Oregon court erred in finding that an Anders brief which referred to issues was not required.

So our position is, first of all Federal constitutional law controls, but there is no contrary California system. If this Court looks at footnote 8 and footnote 22 of Sade C, which does not purport to break new ground, it just refers to California law. Footnote 22 says very clearly that the brief that was filed in that case, if Anders was to apply -- the court concluded that Anders did not apply in that case. It deals with a custody situation.

But they said that we note that under Anders none of the briefs submitted by appointed appellant counsel would have been sufficient. Anders brief must contain law as well as facts, although each of the briefs here, and I'm paraphrasing, has facts, none has law.

QUESTION: Well now, let's get down to what you really are complaining about so that I can get this in perspective. What you say should have happened here is that the lawyer, who found no good issue, should nonetheless have spelled out what arguable issues there might be, even though he didn't think they were sustainable for a legitimate on appeal, right? You want to see that, you want to see this spelled out. Is that correct?

MR. NESSIM: Yes, but I think from an --

QUESTION: Okay, and also you want, as I understand it, to require that the lawyer, having filed that, then withdraw. Is that the other component of what you want?

MR. NESSIM: No, Your Honor.

QUESTION: No.

MR. NESSIM: First of all I think terminology is important. If the lawyer found arguable issues, then a merits brief is required. If the lawyer found no arguable issues, and the State had -- has an epic system that did not allow the filing of a merits brief in that situation, an Anders brief, which does not argue issues -- and Anders does not require the argument of Federal issues. It requires the reference of those issues, so -- and the reason why that's important --

QUESTION: Well, so that's what we're quibbling about, some description of issues that aren't even arguable.

MR. NESSIM: The points served by that, Your Honor, are two, and the Anders court said this. The Court said it in McCoy and Penson first. The court is unable to make its determination whether the appeal is wholly frivolous without the assistance of the reference of legal issues. The cold record is insufficient.

Second, a mere conclusory statement, whether it's a one-sentence or one paragraph in Anders, or the type of brief here, which does not refer to a single legal issue, does not give the court information to make the second determination of whether the attorney was effective, or by --

QUESTION: What is going to be the reaction of a typical court when it gets the kind of brief you say ought to be filed? There are six issues here, but they're all frivolous.

MR. NESSIM: The purpose of an Anders brief is not to decide the case on the merits.

QUESTION: Well, answer my question, if you will --

MR. NESSIM: Yes.

QUESTION: -- not just go into some recitation.

MR. NESSIM: If the court receives such a brief, the court will be able to look at those issues and maybe the court will have a different opinion on whether those issues are arguable or not. Maybe the court will see that this -- the court will have some evidence that the attorney was effective.

QUESTION: If the issues are arguable, he has to file a merits brief, doesn't he?

MR. NESSIM: That's correct, but --

QUESTION: Is that so? Let me -- excuse me. Could I just make this one point?

QUESTION: Yes, sure.

QUESTION: I think McCoy holds to the contrary on that, because McCoy approved the Wisconsin procedure in which, after identifying arguable issues, if the lawyer went ahead and explained why he thought they did not justify a merits brief, that satisfied Anders.

MR. NESSIM: That's correct. McCoy validated what could be called Anders plus. Anders requires a reference to issues.

QUESTION: Right.

MR. NESSIM: Anders requires, in fact -- requires not only a reference of the relevance facts pertaining to those issues, but a reference to the relevant law which pertains to those issues.

QUESTION: But I thought the purpose of Anders in part, which you haven't referred to, so I might be wrong, was to say to the lawyer, lawyer, do the following: read the transcript. Now, when you read the transcript, think what is the best argument I could make.

Now, write it down, and then if you want give the reasons why it isn't that great, but it forces the lawyer to go through that advocacy process, and in the course of doing so, he may find some issues. That, I thought, was the major purpose of Anders, but you didn't refer to that, so maybe I was wrong.

MR. NESSIM: You are correct, Your Honor. In fact, Penson, explicitly after discussing the two purposes I discussed, said that a third purpose said that it provides an independent inducement to counsel to do what Douglas requires, which is to diligently review the record, research the law, and by putting pen to paper, with that discipline you're much more likely to find an arguable issue than you would if you didn't engage in that process, so it does provide an independent inducement.

QUESTION: But the lawyer in Anders, in the Anders procedure, need not follow the final step outlined by Justice Breyer, which is to say why these arguments are frivolous.

MR. NESSIM: That is correct.

QUESTION: He can say, I hereby certify that the following issues should be examined pursuant to Anders, and then list these things.

QUESTION: Which means that he thinks they're frivolous, doesn't it?

MR. NESSIM: That is correct, and the purpose is not to decide them on the merits, but you're right. I think it's more than a listing. It's a reference of the relevant facts and the relevant law. I think the Seventh Circuit in many ways has given the most attention of the circuit courts as to what an adequate Anders brief, then Judge Stevens' opinion --

QUESTION: It's strange, I suppose there are innumerable frivolous issues that could be found in any case. I mean, you know, the failure of California to provide a thirteenth juror is a frivolous issue.

How does counsel go -- well, yes, he has to identify issues that he thinks do not justify an appeal, correct, but if they justify an appeal, that is, I guess if they're arguable, he has to conduct the appeal, so what he has to list are frivolous issues. There are innumerable frivolous issues in any case. I really don't -- I don't know what I would do with this if I had to comply with it.

MR. NESSIM: In response to that, first of all we're talking about not -- we're talking about issues which appear to be frivolous. There's been no determination that they are frivolous. But I don't think Anders requires any conceivable frivolous issues such as a thirteenth juror. I think that the types of issues which should be identified are those which a trained advocate, and this comes from Nichols, would identify and consider, that a trained advocate would identify and consider in the evaluation of the appeal.

QUESTION: So he would say, this is as close as I can get to a nonfrivolous issue. Isn't that what he's doing? It's a kind of modified issue-spotting. This is as close as the record gets to a nonfrivolous issue. That's what he's supposed to list, right?

MR. NESSIM: I think that's correct. If you take the most simplest of proceedings, a guilty plea, with a very standard sentencing, what does an attorney do? I think that an attorney in that case should at least refer to the issues such as voluntariness of a plea, whether the defendant was advised of rights, whether the sentencing was in the range.

If the attorney does that, the appellate court will have the information to decide, 1) whether the appeal is wholly frivolous, 2) whether the attorney provided effective assistance, and whether he did his duties under Douglas v. California. I think it's a very workable system.

QUESTION: And it will get the court there faster than the court will get if it has to do it all by itself.

MR. NESSIM: That's right. Anders is not only constitutionally required, it's an efficient system. What's being complained about by some practitioners or judges in California is the failure to file an Anders brief, because the court then is just left with a cold record, and is forced to do the whole thing itself.

QUESTION: What about the appellate process?

QUESTION: On that point, Justice Stevens and I were both interested in the brief filed by the retired justices. Do you interpret this brief as saying that there is a constitutional deficiency in the California procedure, or that they just prefer the old procedure as a policy matter? How do you interpret the brief?

MR. NESSIM: Yes. Your Honor, I interpret the brief as the judges' commenting on policy, not constitutionality. I disagree with the Warden's statement that their statement is to, in a sense, agree with the Warden that the California system, which is practiced at least in some parts of California, is the correct system. I think they're talking about the policy.

And with respect to the CAP system, as we pointed out in our brief, most of -- the only thing about cap, which is in the record, came out the first time at the Federal habeas level, when Mr. Goodwin, the appellate attorney, filed a declaration where he said he consulted with an appellate attorney.

That doesn't indicate that they independently reviewed the record, and even if they did, that was the situation in Ellis back in, I think it was in '58 or '63, where the Court said it doesn't matter how many attorneys looked at something behind closed doors, the court needs the assistance of an advocate. Somebody has to act as an advocate.

QUESTION: You suggested, I think, in your brief that these appellate projects where not uniform in their approach, and that some of them do require an identification of issues that the lawyer considered. I think there's some disagreement about that. Can you tell us a little bit more about -- it's rather foggy what these appellate projects are.

Ms. Jorstad said that they are run by experts, that the staff of experts in these matters -- but I'm a little unclear on exactly what these animals are.

MR. NESSIM: Your Honor, we said very little in our brief on the merits about the CAP system. It is addressed in great length in one of the amicus briefs that was filed on our behalf, the one on behalf of Delgado.

Our position on the CAP system is, first of all it's not in the record and shouldn't be considered, but if the Court does consider it, as the Daskian brief points out, there are five different appellate projects in California, and one of them in 1990, after the Ninth Circuit decision in Griffy, where the courts basically said, the Ninth Circuit in that case, if the California system is as they claim, meaning not requiring an Anders brief, it's unconstitutional.

According to this brief, one of the appellate projects at that time switched to the Anders system and according to this brief two others have, but I would caution the Court, none of this is in the record.

Our position is that even if -- 1) it's not in the record, and 2), even if there was a second attorney who reviewed it, this Court has repeatedly held that is not the substitute of an advocate's brief, and an Anders brief, while a very strange form of advocacy, is still an advocate's brief, and the court needs that.

I would point out also that there is a fundamental difference between the Warden's position and our position as to what an arguable issue is. The Warden I think would ask counsel to speculate as to, in a sense act as amicus per aes, which was criticized before as to the likely success of an issue.

I think in McCoy this Court very clearly said that an arguable issue is any issue that has any basis in fact or law, and I think the nine issues that we set forth, and we only need one -- and the lower courts didn't say that there were not more than two. They said there were at least two.

I think that if this Court -- and this is not only a case of equal protection. Due process concerns, Ebbitts made that very clear, as well as Sixth Amendment concerns are present, too. If one applies the balancing test, which in MLB was discussed again last term, there is a fundamental interest at stake here, the right to counsel on the first appeal as of right, and if you look at the State interest, Anders is efficient.

All it requires the attorney to do is to put pen to paper, to put -- he had to go -- he or she has to go through that process anyway. It doesn't involve greater expenditures.

QUESTION: Well, I suppose --

MR. NESSIM: It's efficient for judges.

QUESTION: I suppose in the Anders opinion itself there's some indication that we wouldn't preclude other systems that were equally as effective, right?

MR. NESSIM: The --

QUESTION: I mean, Anders isn't necessarily the only way that the right to counsel can be satisfied.

MR. NESSIM: This Court has repeatedly held that advocacy is necessary to reliably decide a case, and we would submit that the lawyer has -- Anders is a limited exception. A merits brief is much preferred. Anders is just a recognition that there are certain State ethical rules that sometimes prohibit that.

So I think any system would require a form of advocacy to give the Court the information it needs, because a cold record is insufficient, and I should add -- QUESTION: So --

MR. NESSIM: I should add that Anders, McCoy, and --

QUESTION: But it's so odd when the court itself says, we don't want it and need it. We have a different system that we think works as well.

MR. NESSIM: First of all, that's what the Warden --

QUESTION: I mean, if it's -- this was for the benefit of the court presumably, and the court says, I don't need it, thank you.

MR. NESSIM: First of all, Your Honor, the California courts have not said that. In fact, they've said the exact opposite of what the Warden says, and in terms of a policy matter, that's what the retired judges are saying.

QUESTION: Well, but --

MR. NESSIM: They need that brief.

QUESTION: -- I thought in Wende the supreme court of California had approved this system.

MR. NESSIM: Not at all, Your Honor. If this court reads the Wende opinion, there were two questions raised in Wende, 1) whether the appellate court had to make an independent review of the whole record, and the second question Wende considered was whether counsel had to formally withdraw. Now --

QUESTION: Well, here the court of appeals in this case said they were satisfied the respondent's attorney had fully complied with the responsibilities in Wende. I mean, that suggests that the California courts do recognize this system. I mean, it would really be a very strange world if the California courts don't recognize it, and yet this case comes here in this posture.

MR. NESSIM: I would submit, Your Honor, that the -- many California courts --

QUESTION: Well, but --

MR. NESSIM: -- have misinterpreted their own law, and --

QUESTION: Well, that's not a question for us, whether California courts misinterpret their own law. That's up to them.

MR. NESSIM: Well, I agree with that, Your Honor. The answer for the ultimate question for this Court is whether the system meets constitutional standards, but California's argument that their system is consistent with California law independent informs this Court's analysis on each of the three questions. It's part of the Bierdenberg v. Georgia balancing of interests.

If the States -- if -- you have to look -- obviously, the high court of California is the ultimate authority on California law, not the intermediate appellate court, not the Warden, and if they've said an Anders brief is required, that affects the balancing of interests. It also, when the California supreme court states that though an attorney -- and this goes back to Justice O'Connor's question that I didn't have a chance to answer about --

QUESTION: Well, I -- before you go back to any other question, I wish you'd answer mine, and here the California court of appeals said it examined the record, found no other arguable issues, and the response attorney fully complied with his responsibilities, citing Wende, and then the California supreme court denies review. Are you saying that this is the California court of appeals' position is contrary to California precedent?

MR. NESSIM: Yes, Your Honor, and I refer you to Wende, and I agree that Wende is not the clearest --

QUESTION: Okay. We've got the California court of appeals saying this did comply with Wende. We've got you saying it didn't. That's a rather easy choice.

(Laughter.)

MR. NESSIM: Well, Your Honor, if that was the choice, I would agree with you. I'm referring you to what the California supreme court said in Wende, and what it made crystal clear, not seeking to break any new ground in Sade C. It said, in California an Anders brief must refer to law as well as facts, and --

QUESTION: If we reject your view of what those two cases stand for, and we accept that the California procedure is, you do not have to identify issues that you considered along the way, let's assume that that is the California law, does that affect whether you should win or lose?

MR. NESSIM: No, it should not affect. We should still win, Your Honor, because if one goes back and reads the State's briefs in Anders v. California, they are an exact replay of their arguments here. They argued there there was a multi-tiered review of several attorneys. They argued there that there was an independent judicial review of the whole record, and this Court found that insufficient.

Why, and again I go back to the purposes, because the Court -- the cold record is not enough for the court to make the determination of whether the appeal is wholly frivolous, nor was it enough to determine whether counsel provided effective assistance.

The brief here only -- a high school student could have written this brief. It first of all misses most of the important pretrial proceedings, and even its summary of the facts, it's a nonlawyer's discussion. It's a summary of a witness-by-witness basis. There's no advocate's basis.

I should add here that the failure of advocacy goes beyond, in this case, the mere file -- the failure to file an advocate's brief, whether merits or Anders.

The Chief Justice in his dissent in Penson discussed that there's no reason to doubt that the attorney conscientiously reviewed the record in that case. There's plenty of reason to doubt that in this case. Many of the important pretrial proceedings weren't even transcribed at the time, so the attorney didn't have the benefit of that, the appellate court didn't have the benefit of that.

In fact -- and then Penson discusses that one of the important responsibilities of an advocate is to ensure that the appellate court has a full record. The appellate attorney here failed in that obligation.

Robbins actually made several motions to augment the record before the State court of appeal. The attorney did not support those efforts. In fact, many key portions, the -- one of the arguable issues we raise is the denial of the motion to -- for destruction of evidence.

The Warden points out in their reply brief that Robbins said at one point, this motion has already been heard, and the judge says, well, we're not going to hear it again.

In fact, if you look at the record, there's nothing in the record to suggest that it actually was heard. Robbins was probably confused. The hearings, which -- between the filing of that motion and that colloquy, if you look at the minute order, that's all we have.

None of them indicate that the motion was actually heard, and so Robbins actually pointed to each of these key motions and hearings in his motions to augment, and the appellate court denied that, and I think that was probably in contravention of California law to look at the whole record.

And Goodwin, the attorney didn't support it.

QUESTION: Would you explain to me a little bit more about California's rules on getting the whole record typed up and provided. Did he have a right to have everything typed up, or did he have to make some kind of a showing that there might be something in the parts that hadn't been typed up?

MR. NESSIM: The relevant rule is California Rule of Court 33, and it's been amended, I don't think substantively, from back when this appeal was decided on today.

It does not -- it requires all motions which were denied to be part of the appellate record, and in fact all motions which were denied were not part of the record on appeal in this case. It does not to my knowledge -- it does not require all pretrial proceedings, but there is a mechanism, if those are relevant to deciding an issue of appeal, to request them.

QUESTION: How did they get typed up in this case? Did you have to order that, or did -- how did it -- you said that they weren't typed up in time for the California appellate court to have read them. Is that shown by the record?

MR. NESSIM: Yes, Your Honor. The transcripts were prepared during the State habeas proceedings before I was appointed as counsel. Robbins did that on his own.

QUESTION: I see.

MR. NESSIM: He caused a reporter to prepare those. Those transcripts were attached to the State habeas and, of course, to the Federal habeas petition.

QUESTION: Did he do that at his own expense, or State expense?

MR. NESSIM: His own expense.

QUESTION: I see.

MR. NESSIM: Now, I would -- to stress, in terms of the prejudice per se standard, you know, there is a difference between -- and Penson expressly recognizes this, between providing some advocacy that's ineffective and no advocacy at all.

In fact, in both -- Ebbitts refers to Anders and Entsminger, cases where the attorneys did not formally withdraw, and notes that they were represented by counsel in name only and, in fact, they had no counsel at all. Like those defendants, Robbins in this case had to shift entirely for himself, and Penson refers to both Cronic and Saterwaite v. Texas as cases which obviously involve trial error.

But that -- Penson expressly extends them to the appellate area and says, when an attorney fails to act as an advocate in a proceeding, the error pervades the entire proceeding and can never be harmless, and the reason for that is because the court would have to speculate without the assistance of an advocate, and we've also discussed the additional reasons of comity and judicial efficiency.

I would add that we believe that even if the Strickland standard was applied in this case, that we would prevail. We have raised substantive issues. there's a reasonable probability sufficient to undermine the confidence.

If there are no other questions, I will conclude my argument.

QUESTION: Thank you, Mr. Nessim.

Ms. Jorstad, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF CAROL F. JORSTAD

ON BEHALF OF THE PETITIONER

MS. JORSTAD: Thank you very much, Your Honor.

I think we should be very clear about what advocacy means in the context of an Anders brief, or a no-merit brief generally. Up front, it means, giving the client the benefit of professional judgment, of professional skill, professional analysis. In California, there's also even more professional review, and a whole system built around that.

But once there's been a no-merit determination made by counsel, when you talk about advocacy, what you're really talking about is advocating for the other side.

Telling the court what issues it can readily reject cannot help having some, at least subliminal, if not more, effect on the mind set of the judges who are reading that brief.

Far better for the client if also --

QUESTION: Yes, but we rejected that point in the Wisconsin case, McCoy, didn't we? We said it's perfectly okay if he spells out the reasons why he thinks there's no merit.

MS. JORSTAD: And I think, Justice Stevens, that what we can say about McCoy is that this Court approved that procedure, which was in fact a deviation from Anders, but it didn't require it. California, I believe, has much more concern for the client.

QUESTION: Well, we didn't hold it was a deviation from Anders. We held it was perfectly consistent with Anders.

MS. JORSTAD: I under --

QUESTION: It performed the function of having a lawyer identify for the court in a way that would be helpful to the court when it looks through the record what arguable issues are there, and this -- it required that there be some discussion of legal issues, and that's what's missing here. You don't have any discussion of legal issues.

MS. JORSTAD: That's correct, Your Honor, just as, as a matter of equal protection, no client with retained counsel would ever put before the court a discussion of the legal issues he rejected. It just wouldn't happen.

I'm suggesting to the Court that there is no reason to be unduly suspicious of lawyers who write no-merit briefs. It's a hard thing to do. It requires much more in the way of approval from the appellate project in California. The sanctions against the lawyer are potentially far greater. He's subject to a presumed prejudice standard rather than a Strickland standard.

The much easier course would be to raise something like the reasonable doubt instruction which most everybody --

QUESTION: Well, of course, the difference in the prejudice is, in Strickland the fellow gets a new trial. Here, the only thing that's at stake is whether there has to be a merits brief filed.

MS. JORSTAD: Well, in Strickland -- but on appeal Strickland --

QUESTION: But he's not going to get out of jail if there's a violation of Anders.

MS. JORSTAD: Absolutely not, Your Honor, but Strickland also applies on appeal in merits situations, and that's when a new appeal is given.

It would be wrong to force the State to give appeals willy nilly in situations like this one, quite specifically. Here, the two issues that have been suggested as the most meritorious by the two courts --

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Jorstad. Your time has expired.

MS. JORSTAD: Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 11:33 a.m., the case in the above-entitled matter was submitted.)