After respondent was convicted of robbery and assault in a jury
trial in a New York state court, counsel was appointed to represent
him on appeal. Respondent informed counsel of several claims that
he felt should be raised, but counsel 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. Counsel 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 claims. Counsel's brief to the
Appellate Division of the New York Supreme Court concentrated on
three of the claims, two of which had been originally suggested by
respondent. In addition, respondent's own
pro se briefs
were filed. At oral argument, counsel argued the points presented
in his own brief, but not the arguments raised in the
pro
se briefs. The Appellate Division affirmed the conviction.
After respondent was unsuccessful in earlier collateral proceedings
attacking his conviction, he filed this action in Federal District
Court, seeking habeas corpus relief on the basis that his appellate
counsel had provided ineffective assistance. The District Court
denied relief, but the Court of Appeals reversed, concluding that,
under
Anders v. California, 386 U.
S. 738 -- which held that an appointed attorney must
advocate his client's cause vigorously and may not withdraw from a
nonfrivolous appeal -- appointed counsel must present on appeal all
nonfrivolous arguments requested by his client. The Court of
Appeals held that respondent's counsel had not met this standard,
in that he failed to present certain nonfrivolous claims.
Held: Defense counsel assigned to prosecute an appeal
from a criminal conviction does not have a constitutional duty to
raise every nonfrivolous issue requested by the defendant. The
accused has the ultimate authority to make certain fundamental
decisions regarding his case, including the decision whether to
take an appeal; and, with some limitations, he may elect to act as
his own advocate. However, an indigent defendant has no
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. By promulgating
Page 463 U. S. 746
a
per se rule that the client must be allowed to decide
what issues are to be pressed, the Court of Appeals seriously
undermined the ability of counsel to present the client's case in
accord with counsel's professional evaluation. Experienced
advocates 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. Selecting the most promising issues
for review has assumed a greater importance in an era when the time
for oral argument is strictly limited in most courts and when page
limits on briefs are widely imposed. The decision in
Anders, far from giving support to the Court of Appeals'
rule, is to the contrary;
Anders recognized that the
advocate's role "requires that he support his client's appeal to
the best of his ability." 386 U.S. at
386 U. S. 744.
The appointed counsel in this case did just that. Pp.
463 U. S.
750-754.
665 F.2d 427, reversed.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.
BLACKMUN, J., filed an opinion concurring in the judgment,
post, p.
463 U. S. 754.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
463 U. S.
755.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
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
Page 463 U. S. 747
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. [
Footnote 1] 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. [
Footnote 2] 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
Page 463 U. S. 748
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,
New York v. Barnes, 63 App.Div.2d 865, 405 N.Y.S.2d
621 (1978). The New York Court of Appeals denied leave to appeal,
New York v. Barnes, 45 N.Y.2d 786 (1978).
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.
United States ex rel. Barnes v. Jones, No.
78-C-1717 (Nov. 27, 1978). The Court of Appeals for the Second
Circuit affirmed, 607 F.2d 994, and we denied a petition for a writ
of certiorari, 444 U.S. 853 (1979).
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
Page 463 U. S. 749
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,
New York v.
Barnes, 49 N.Y.2d 1001.
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." No. 80-C-2447
(EDNY, Jan. 30, 1981), reprinted in App. to Pet. for Cert. 28a. 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."
Id. at 28a-29a.
A divided panel of the Court of Appeals reversed, 665 F.2d 427
(1981). [
Footnote 3] 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."
Id. at 433 (emphasis added). In the view of the
majority, this conclusion followed from
Anders v.
California, 386 U. S. 738
(1967). In
Anders, this Court held that an appointed
attorney must advocate his client's cause vigorously, and may not
withdraw from a nonfrivolous appeal.
Page 463 U. S. 750
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.
"[A]ppointed counsel's unwillingness to present particular
arguments at appellant's request functions not only to abridge
defendant's right to counsel on appeal, but also to limit the
defendant's constitutional right of equal access to the appellate
process. . . ."
665 F.2d at 433. The Court of Appeals went on to hold that,
"[h]aving demonstrated that appointed counsel failed to argue
colorable claims at his request, an appellant need not also
demonstrate a likelihood of success on the merits of those
claims."
Id. at 434.
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. The fact
that these issues had been raised in respondent's own
pro
se briefs did not cure the error, since "[a]
pro se
brief is no substitute for the advocacy of experienced counsel."
Ibid. The court reversed and remanded, with instructions
to grant the writ of habeas corpus unless the State assigned new
counsel and granted a new appeal.
Circuit Judge Meskill dissented, stating that the majority had
overextended
Anders. In his view,
Anders
concerned only whether an attorney must pursue nonfrivolous
appeals; it did not imply that attorneys must advance all
nonfrivolous
issues.
We granted certiorari, 457 U.S. 1104 (1982), and we reverse.
II
In announcing a new
per se rule that appellate counsel
must raise every nonfrivolous issue requested by the client,
[
Footnote 4]
Page 463 U. S. 751
the Court of Appeals relied primarily upon
Anders v.
California, supra. There is, of course, no constitutional
right to an appeal, but in
Griffin v. Illinois,
351 U. S. 12,
351 U. S. 18
(1956), and
Douglas v. California, 372 U.
S. 353 (1963), 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,
see Wainwright v. Sykes,
433 U. S. 72,
433 U. S. 93, n.
1 (1977) (BURGER, C.J., concurring); ABA Standards for Criminal
Justice 4-5.2, 21-2.2 (2d ed.1980). In addition, we have held that,
with some limitations, a defendant may elect to act as his or her
own advocate,
Faretta v. California, 422 U.
S. 806 (1975). 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, supra, at
372 U. S. 358.
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,
Page 463 U. S. 752
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 United States Supreme Court, 25
Temple L.Q. 115, 119 (1951). Justice Jackson's observation echoes
the advice of countless advocates before him and since. An
authoritative work on appellate practice observes:
"Most cases present only one, two, or three significant
questions. . . . Usually, . . . if you cannot win on a few major
points, the others are not likely to help, and to attempt to deal
with a great many in the limited number of pages allowed for briefs
will mean that none may receive adequate attention. The effect of
adding weak arguments will be to dilute the force of the stronger
ones."
R. Stern, Appellate Practice in the United States 266 (1981).
[
Footnote 5]
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
Page 463 U. S. 753
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.
See,
e.g., Fed.Rule App.Proc. 28(g); McKinney's New York Rules of
Court ยงยง 670.17(g)(2), 670.22 (1982). 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, 26 A.B.A.J. 895, 897 (1940) -- in a verbal mound made
up of strong and weak contentions.
See generally, e.g.,
Godbold, Twenty Pages and Twenty Minutes -- Effective Advocacy on
Appeal, 30 Sw.L.J. 801 (1976). [
Footnote 6]
This Court's decision in
Anders, far from giving
support to the new
per se rule announced by the Court of
Appeals, is to
Page 463 U. S. 754
the contrary.
Anders recognized that the role of the
advocate "requires that he support his client's appeal to the best
of his ability." 386 U.S. at
386 U. S. 744.
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. [
Footnote 7] The
judgment of the Court of Appeals is accordingly
Reversed.
[
Footnote 1]
This identification, which took place in a one-on-one meeting
arranged by the police, was the subject of a pretrial hearing. The
trial judge found it unnecessary to rule on the validity of that
identification. He concluded that Butts' subsequent in-court
identification was based upon an independent source, since Butts
had known respondent for several years prior to the robbery.
[
Footnote 2]
Respondent's letter is not in the record. Its contents may be
inferred from Melinger's letter in response.
[
Footnote 3]
By this time, at least 26 state and federal judges had
considered respondent's claims that he was unjustly convicted for a
crime committed five years earlier; and many of the judges had
reviewed the case more than once. Until the latest foray, all
courts had rejected his claims.
[
Footnote 4]
The record is not without ambiguity as to what respondent
requested. We assume, for purposes of our review, that the Court of
Appeals majority correctly concluded that respondent insisted that
Melinger raise the issues identified, and did not simply accept
Melinger's decision not to press those issues.
[
Footnote 5]
Similarly, a manual on practice before the Court of Appeals for
the Second Circuit declares:
"[A] brief which treats more than three or four matters runs
serious risks of becoming too diffuse and giving the overall
impression that no one claimed error can be serious."
Committee on Federal Courts of the Association of the Bar of the
City of New York, Appeals to the Second Circuit 38 (1980).
[
Footnote 6]
The ABA Model Rules of Professional Conduct provide:
"A lawyer shall abide by a client's decisions concerning the
objectives of representation . . . and shall consult with the
client as to the means by which they are to be pursued. . . . In a
criminal case, the lawyer shall abide by the client's decision, . .
.
as to a plea to be entered, whether to waive jury trial and
whether the client will testify."
Model Rules of Professional Conduct, Proposed Rule 1.2(a) (Final
Draft 1982) (emphasis added). 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.
Respondent points to the ABA Standards for Criminal Appeals,
which appear to indicate that counsel should accede to a client's
insistence on pressing a particular contention on appeal,
see ABA Standards for Criminal Justice 21-3.2, p. 21-42
(2d ed.1980). The ABA Defense Function Standards provide, however,
that, with the exceptions specified above, strategic and tactical
decisions are the exclusive province of the defense counsel, after
consultation with the client.
See id., 4-5.2.
See
also ABA Project on Standards for Criminal Justice, The
Prosecution Function and The Defense Function 5.2 (Tent. Draft
1970). In any event, the fact that the ABA may have chosen to
recognize a given practice as desirable or appropriate does not
mean that that practice is required by the Constitution.
[
Footnote 7]
The only question presented by this case is whether a criminal
defendant has a constitutional right to have appellate counsel
raise every nonfrivolous issue that the defendant requests. The
availability of federal habeas corpus to review claims that counsel
declined to raise is not before us, and we have no occasion to
decide whether counsel's refusal to raise requested claims would
constitute "cause" for a petitioner's default within the meaning of
Wainwright v. Sykes, 433 U. S. 72
(1977).
See also Engle v. Isaac, 456 U.
S. 107,
456 U. S. 128
(1982).
JUSTICE BLACKMUN, concurring in the judgment.
I do not join the Court's opinion, because I need not decide in
this case,
ante at
463 U. S. 751,
whether there is or is not a constitutional right to a first appeal
of a criminal conviction, and because I agree with JUSTICE BRENNAN,
and the American Bar Association, ABA Standards for Criminal
Justice 21-3.2, Comment, p. 21-42 (2d ed.1980), that, as an ethical
matter, an attorney should argue on appeal all nonfrivolous claims
upon which his client insists. Whether or not one agrees with the
Court's view of legal strategy, it seems to me that the lawyer,
after giving his client his best opinion as to the course most
likely to succeed, should acquiesce in the client's choice of which
nonfrivolous claims to pursue.
Certainly,
Anders v. California, 386 U.
S. 738 (1967), and
Faretta v. California,
422 U. S. 806
(1975), indicate that the attorney's usurpation of certain
fundamental decisions can
Page 463 U. S. 755
violate the Constitution. I agree with the Court, however, that
neither my view nor the ABA's view of the ideal allocation of
decisionmaking authority between client and lawyer necessarily
assumes constitutional status where counsel's performance is
"within the range of competence demanded of attorneys in criminal
cases,"
McMann v. Richardson, 397 U.
S. 759,
397 U. S. 771
(1970), and "assure[s] the indigent defendant an adequate
opportunity to present his claims fairly in the context of the
State's appellate process,"
Ross v. Moffitt, 417 U.
S. 600,
417 U. S. 616
(1974). I agree that both these requirements were met here.
But the attorney, by refusing to carry out his client's express
wishes, cannot forever foreclose review of nonfrivolous
constitutional claims. As I noted in
Faretta v.
California, 422 U.S. at
422 U. S. 848
(dissenting opinion), "[f]or such overbearing conduct by counsel,
there is a remedy," citing
Brookhart v. Janis,
384 U. S. 1 (1966),
and
Fay v. Noia, 372 U. S. 391,
372 U. S. 439
(1963). The remedy, of course, is a writ of habeas corpus. Thus,
while the Court does not reach the question,
ante at
463 U. S. 754,
n. 7, I state my view that counsel's failure to raise on appeal
nonfrivolous constitutional claims upon which his client has
insisted must constitute "cause and prejudice" for any resulting
procedural default under state law.
See Wainwright v.
Sykes, 433 U. S. 72
(1977).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence" (emphasis added). 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
Page 463 U. S. 756
him to raise them. I would remand for a determination whether
respondent did in fact insist that his lawyer brief the issues that
the Court of Appeals found were not frivolous.
It is clear that respondent had a right to the assistance of
counsel in connection with his appeal. "As we have held again and
again, an indigent defendant is entitled to the appointment of
counsel to assist him on his first appeal. . . ."
Entsminger v.
Iowa, 386 U. S. 748,
386 U. S. 751
(1967) (citations omitted). [
Footnote
2/1] In recognizing the right to counsel on appeal, we
Page 463 U. S. 757
have expressly relied not only on the Fourteenth Amendment's
Equal Protection Clause, which, in this context, prohibits
disadvantaging indigent defendants in comparison to those who can
afford to hire counsel themselves, but also on its Due Process
Clause and its incorporation of Sixth Amendment standards.
See
Anders v. California, 386 U. S. 738,
386 U. S. 744
(1967);
Griffin v. Illinois, 351 U. S.
12,
351 U. S. 17
(1956);
cf. Johnson v. United States, 352 U.
S. 565,
352 U. S. 566
(1957);
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S.
462-463 (1938). The two theories converge in this case
also.
Cf. Bearden v. Georgia, 461 U.
S. 660,
461 U. S. 665
(1983). A State may not incarcerate a person, whether he is
indigent or not, if he has not had (or waived) the assistance of
counsel at all stages of the criminal process at which his
substantial rights may be affected.
Argersiner v. Hamlin,
407 U. S. 25
(1972);
Mempa v. Rhay, 389 U. S. 128,
389 U. S. 134
(1967). In my view, that right to counsel extends to one appeal,
provided the defendant decides to take an appeal and the appeal is
not frivolous. [
Footnote 2/2]
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, [
Footnote 2/3] or that the representation
afforded must meet minimum standards of effectiveness.
See
Powell v. Alabama, 287 U. S. 45,
287 U. S. 71
Page 463 U. S. 758
(1932). To satisfy the Constitution, counsel must function as an
advocate for the defendant, as opposed to a friend of the court.
Anders v. California, supra, at
386 U. S. 744;
Entsminger v. Iowa, supra, at
386 U. S. 751.
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.
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, 422 U. S. 806
(1975), 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 and experience 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, 397 U. S. 337,
397 U. S.
350-351 (BRENNAN, J., concurring)."
Id. at
422 U. S.
834.
Page 463 U. S. 759
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." 386 U.S. at
386 U. S.
744.
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, 379 U.
S. 443,
379 U. S. 451
(1965). 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.
I find further support for my position in the legal profession's
own conception of its proper role. The American Bar Association has
taken the position that
"when, in the estimate of counsel, the decision of the client to
take an appeal,
or the client's decision to press a particular
contention on appeal, is incorrect[, c]ounsel
Page 463 U. S. 760
has the professional duty to give to the client fully and
forcefully an opinion concerning the case and its probable outcome.
Counsel's role, however, is to advise. The decision is made by
the client."
ABA Standards for Criminal Justice 21-3.2, Comment, p. 21-42 (2
ed.1980) (emphasis added). [
Footnote
2/4] The Court disregards this clear statement of how the
profession defines the "assistance of counsel" at the appellate
stage of a criminal defense by referring to standards governing the
allocation of authority between attorney and client at trial.
See ante at
463 U. S. 753,
n. 6; ABA Standards for Criminal Justice 4-5.2 (2 ed.1980).
[
Footnote 2/5] In the course of a
trial, however, decisions must often be made in a matter of hours,
if not minutes or seconds. From the standpoint of effective
administration of justice, the need to confer decisive authority on
the attorney is paramount with regard to the hundreds of decisions
that must be made quickly in the course of a trial. Decisions
regarding which issues to press on appeal, in contrast, can and
should be made more deliberately, in the course of deciding whether
to appeal at all.
Page 463 U. S. 761
The Court's opinion seems to rest entirely on two propositions.
First, the Court observes that we have not yet decided this case.
This is true in the sense that there is no square holding on point,
but as I have explained
supra, at
463 U. S.
758-759,
Anders and
Faretta describe
the right to counsel in terms inconsistent with today's holding.
Moreover, the mere fact that a constitutional question is open is
no argument for deciding it one way or the other. Second, 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.
See generally Burt, Conflict
and Trust Between Attorney and Client, 69 Geo.L.J. 1015 (1981);
Skolnick, Social Control in the Adversary System, 11 J.Conflict
Res. 52 (1967). There are many reasons for this, some perhaps
unavoidable even under perfect conditions -- differences in
education, disposition, and socioeconomic 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
Page 463 U. S. 762
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 contrives against him."
See
422 U.S. at
422 U. S. 834.
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. [
Footnote
2/6] 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
Page 463 U. S. 763
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.
See Johnson v. Zerbst, 304 U.S. at
304 U. S. 463.
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.
As Justice Black wrote in
Von Moltke v. Gillies,
332 U. S. 708,
332 U. S.
725-726 (1948):
". . . The right to counsel guaranteed by the Constitution
contemplates the services of an attorney devoted solely to the
interests of his client.
Glasser v. United States,
315 U. S.
60,
315 U. S. 70. . . ."
". . . Undivided allegiance and faithful, devoted service to a
client are prized traditions of the American lawyer. It is this
kind of service for which the Sixth Amendment makes provision. And
nowhere is this service deemed more honorable than in case of
appointment to represent an accused too poor to hire a lawyer, even
though the accused may be a member of an unpopular or hated group,
or may be charged with an offense which is peculiarly
abhorrent."
(Footnote omitted.)
Page 463 U. S. 764
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.
Cf. Faretta v.
California, 422 U.S. at
422 U. S.
835-836 (standards for waiver of right to counsel). 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.
Cf. ante at
463 U. S.
750-751, n. 4. 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.
[
Footnote 2/1]
The Court surprisingly announces that "[t]here is, of course, no
constitutional right to an appeal."
Ante at
463 U. S. 751.
That statement, besides being unnecessary to its decision, is quite
arguably wrong. In
Griffin v. Illinois, 351 U. S.
12 (1956), the fifth member of the majority, Justice
Frankfurter, expressed doubt that there was a constitutional right
to an appeal:
"[N]either the unfolding content of 'due process' nor the
particularized safeguards of the Bill of Rights disregard
procedural ways that reflect a national historic policy. It is
significant that no appeals from convictions in the federal courts
were afforded (with roundabout exceptions negligible for present
purposes) for nearly a hundred years; and, despite the civilized
standards of criminal justice in modern England, there was no
appeal from convictions (again, with exceptions not now pertinent)
until 1907. Thus, it is now settled that due process of law does
not require a State to afford review of criminal judgments."
Id. at
351 U. S. 20-21.
If the question were to come before us in a proper case, I have
little doubt that the passage of nearly 30 years since
Griffin and some 90 years since
McKane v.
Durston, 153 U. S. 684
(1894), upon which Justice Frankfurter relied, would lead us to
reassess the significance of the factors upon which Justice
Frankfurter based his conclusion. I also have little doubt that we
would decide that a State must afford at least some opportunity for
review of convictions, whether through the familiar mechanism of
appeal or through some form of collateral proceeding. There are
few, if any, situations in our system of justice in which a single
judge is given unreviewable discretion over matters concerning a
person's liberty or property, and the reversal rate of criminal
convictions on mandatory appeals in the state courts, while not
overwhelming, is certainly high enough to suggest that depriving
defendants of their right to appeal would expose them to an
unacceptable risk of erroneous conviction.
See Kagan,
Cartwright, Friedman, & Wheeler, The Evolution of State Supreme
Courts, 76 Mich.L.Rev. 961, 994 (1978); Project, 33 Stan.L.Rev.
951, 957, 962-964 (1981). Of course, a case presenting this
question is unlikely to arise, for the very reason that a right of
appeal is now universal for all significant criminal
convictions.
[
Footnote 2/2]
Both indigents and those who can afford lawyers have this right.
However, with regard to issues involving the allocation of
authority between lawyer and client, courts may well take account
of paying clients' ability to specify at the outset of their
relationship with their attorneys what degree of control they wish
to exercise, and to avoid attorneys unwilling to accept client
direction.
[
Footnote 2/3]
Of course, a State may also allow properly supervised law
students to represent indigent defendants.
See Argersinger v.
Hamlin, 407 U. S. 25,
407 U. S. 40-41
(1972) (BRENNAN, J., concurring).
[
Footnote 2/4]
Cf. ABA Model Code of Professional Responsibility EC
7-7 (1980) ("the authority to make decisions is exclusively that of
the client" except for decisions "not affecting the merits of the
cause or substantially prejudicing the rights of a client");
id. EC 7-8 ("the lawyer should always remember that the
decision whether to forego legally available objectives or methods
because of nonlegal factors is ultimately for the client").
[
Footnote 2/5]
See also ABA Commission on Professional Standards,
Model Rules of Professional Conduct, Rule 1.2(a) (Final Draft
1982).Rule 1.2(a) requires that
"[a] lawyer shall abide by a client's decisions concerning the
objectives of representation [if they are not illegal or unethical,
or if, despite the fact that he considers them 'repugnant or
imprudent,' the lawyer cannot withdraw without prejudicing the
client], and shall consult with the client as to the means by which
they are to be pursued."
It is worth noting, however, that the commentary to Rule 1.2
discloses that its drafters' principal concern was the relationship
between insurance company lawyers and insureds they represent, and
that Rule 1.2 is intended to provide a basis for disciplinary
action as well as general ethical guidance.
[
Footnote 2/6]
I do not mean to suggest that this "handful" of cases is not
important -- it may well include many cases that shape the law.
Furthermore, the relative skill of lawyers certainly makes a
difference at the trial and pretrial stages, when a lawyer's
strategy and ability to persuade may do his client a great deal of
good in almost every case, and when his failure to investigate
facts or to present them properly may result in their being
excluded altogether from the legal system's official conception of
what the "case" actually involves.