We must all be candid with the courts, this we know. But, how often is it that you get to tell an appellate court just how completely horrible a client’s position really is? Never, that’s how often. Unless…you’ve got a no-merit brief up your sleeve.
The Anders Brief
But, wait…how is that fair to an appellant? Even if you an appeal would be frivolous, it still seems kind of funny to just put it out there like that. BUT! That’s the genius of the Ander’s/no-merit brief. The client is protected in multiple layers, the attorney does not have to argue a frivolous appeal, and a little money gets saved along the way. Genius.
A no merit brief, commonly called an Anders brief, is definitely something I didn’t learn about in law school. The Anders moniker comes as a result of Anders v. California, 386 U.S. 738 (1967), where an attorney filed a motion to withdraw from the court-appointed criminal appeal, based on his belief that any grounds for appeal were frivolous. The Supreme Court ruled that any such motion must be accompanied by a brief outlining the case and any potential (albeit possibly frivolous) grounds for appeal, that the appellate court must independently review the case, and that a defendant must be allowed the right to appeal either pro se or by through other counsel. In Arkansas, criminal briefs are also guided by Ark. Sup. Ct. R. 4-3(k).
Basically, here’s how it works:
- An indigent Appellant is appointed counsel. Case is tried in trial court.
- Appellant tells counsel he wants to appeal.
- Counsel files notice of appeal. Trial counsel may proceed as appellate counsel or new appellate counsel (usually) is appointed.
- Counsel petitions for Transcript on Appeal (for State to cover costs of preparing the transcript).
- Court reporter prepares record (Note: a two-day trial costs about $2,000; supplemental hearing transcript typically runs $300-$1000, but don’t think that court reporter doesn’t work for every cent of it…).
- Counsel reviews record, determines any appeal would be based on frivolous grounds. (“The test for filing a no merit brief is not whether or not there is reversible error, but whether an appeal would be wholly frivolous.” Tucker v. State, 47 Ark.App. 96, 885 S.W.2d 904 (1994).
- Counsel files a motion to withdraw and an Anders brief, which outlines the case and any possible grounds for appeal, even if potentially frivolous. You can read an example of a recent Anders brief here.
- Appellant is given a copy of the motion and brief.
- Appellant is notified of his right to file pro se points. You can read the pro se points in our example case here.
- If he accepts, he files his own appeal. State can respond. You can read the State’s reply brief in our example case here.
- Court of Appeals must review the record for potential error.
- If the Court of Appeals determines that there is no merit to the appeal, it may issue a memorandum opinion relieving counsel and affirming lower court’s judgment. In re Memorandum Opinion, 16 Ark.App. 301, 700 S.W.2d 63 (1985).
- Appellate attorney files for fee. In our example case, it was $1,800. Wait, he didn’t take the appeal because he thought it was frivolous! Yeah, but he still had to review the entire record (they are quite large, if you’ve never seen one) and make determinations about places of possible error, and write a brief about the same. That’s a lot of work.