Appellate Corner

Kent Sheidegger *

In the first half of its 1999-2000 term, the Supreme Court has decided its "appeal trilogy," ruled on unprovoked flight as cause for Terry stops, clarified a point on jury challenges, and taken some hot issues for the end of the term. The high court also handed us a chilling reminder of how precariously it is balanced at present. This article will review these developments and note a few cases of interest from other courts.

Appeal Trilogy

Three California defendants presented the Court with issues on the minimum standards for processing appeals. They might be called the no issues case, the no lawyer case and the no appeal case.

On January 19, the Court decided Smith v. Robbins, No. 98-1037. In Anders v. California, 386 U.S. 738 (1967), the Court had held that appointed counsel could not simply file a letter stating that the appeal had no merit, and it laid out an acceptable procedure. California adopted a different procedure in People v. Wende, 28 Cal. 3d 436, 600 P. 2d 1071 (1979), which has been used ever since. Under Wende, appointed counsel who concludes there are no nonfrivolous issues summarizes the case, explains his evaluation to the client, advises him he can file a pro se brief, and asks the court to examine the record itself. Counsel remains available to brief any issues the court of appeal finds are arguable. Unlike Anders, counsel under Wende does not spot issues which he has recognized but deems frivolous. Some defense lawyers have severely criticized Anders on this point as creating an ethical dilemma, requiring counsel to argue that his client's claim is frivolous.

The Ninth Circuit held that Wende did not comply with Anders. The Supreme Court reversed by a 5-4 vote. Justice Thomas's majority opinion emphasizes the federalist principle that federal courts have no authority to impose their policy preference on state courts but can only enforce constitutional minimums.

While Robbins complained of not enough representation, another defendant complained of too much. On January 12, in Martinez v. Court of Appeal, No. 98-7809, the Court declined to extend the Faretta right of self-representation to appeals. Unlike the narrow and contentious split in Robbins, there was no dissent in Martinez. Along the way, the Court confirmed that the Sixth Amendment, on which Faretta is based, is simply inapplicable to appeals. The Court's extension of representation rights to indigent defendants was derived from the Equal Protection and Due Process Clauses.

The final chapter was decided February 23 in Roe v. Flores-Ortega. In this case, trial counsel decided not to file an appeal following the defendant's guilty plea. She concluded there were no appealable issues, which is often the case, because the plea waives most issues. The defendant had neither expressly requested nor expressly waived an appeal. The Ninth Circuit held that this was ineffective assistance of counsel without a showing of prejudice. Strickland v. Washington, 466 U.S. 668 (1984) generally requires a showing of a reasonable probability that the challenged performance made a difference in the result, but the Ninth Circuit thought this was one of the exceptions.

The Supreme Court vacated and remanded in an opinion that rejected bright lines and called for case-specific inquiries. Absent specific instructions from the defendant, a court must ask whether counsel had a duty to consult with the defendant about appeal, which arises if there are nonfrivolous issues to appeal or if the defendant had previously indicated an interest in appealing. For the prejudice prong of Strickland, the defendant must show a reasonable probability that but for counsel's failure to consult, he would have appealed. In one small victory for defendants, the Court declined to require a showing of arguable issues as an essential element of the claim. However, the presence or absence of such issues will have a bearing on both the deficient performance and prejudice prongs.

For trial counsel, the practical message of this muddled test is nonetheless clear. Always expressly ask the defendant if he wants to appeal. A simple question, a simple answer, and a note in the file will avoid much murky litigation down the road.

The Challenge Dilemma

The case on jury challenges unfortunately provides no such clear message for trial counsel. What do you do when you challenge a juror for cause, and the trial judge denies it, erroneously in your opinion? In United States v. Martinez-Salazar, No. 98-1255, decided January 19, the Court effectively held that using a peremptory challenge makes the challenge-for-cause ruling unreviewable. This is so even if the defendant used all of his peremptory challenges. The choice is between (1) going to trial with a biased juror and hoping for a successful appeal, or (2) using a peremptory one should not have needed to use. "A hard choice is not the same as no choice," Justice Ginsburg says in the opinion of the Court. There was no dissent on the main point of the case.

Suspicious Flight

In his last major criminal procedure opinion, Chief Justice Earl Warren wrote for the Court in Terry v. Ohio, 392 U.S. 1 (1968) that police could briefly stop and question people on a "reasonable suspicion" of criminal activity, much less than the "probable cause" required for arrest. Is the act of headlong flight at the sight of police suspicious enough to justify a "Terry stop"? The Court held it was in a 5-4 opinion in Illinois v. Wardlow, No. 98-1036 (Jan. 12, 2000), at least when this occurs in a "high crime" area. The Court acknowledged that running away could have an innocent explanation, but that is generally true of the suspicious, but possibly innocent, behavior in Terry itself and other cases upholding such stops.

While the Court did not draw a bright line at flight alone, one may well ask whether the high-crime area makes a difference. Is headlong flight at the sight of police any less suspicious on Rodeo Drive?

A Chilling Reminder

The most surprising case so far in the term is Weeks v. Angelone, No. 99-5746, decided January 19. The case is not surprising for its outcome, but for the fact it was close.

Weeks admittedly shot and killed a state trooper during a seemingly routine traffic stop, without any semblance of justification. At the penalty phase, the judge gave the standard state instruction, subsequently upheld as correct in Buchanan v. Angelone, 522 U.S. 269 (1998). A jury question indicated some confusion, and the judge answered the question by referring the jury to the specific paragraph of the specific instruction that correctly answered it. There is a small mountain of authority from courts across the country that such a response is within the court's discretion.

Between the abundant authority and the new statutory requirement that only clearly wrong decisions warrant habeas relief, this case should have been 9-0 for affirmance. The fact that four Justices voted to reverse is a chilling reminder of how precarious the balance is on the Supreme Court today. It seems we are one step away from a return to the days, when long-established procedures were routinely overturned, requiring retrial or release of thousands of clearly guilty criminals.

A Blazing Finish

The Supreme Court has accepted one other hot-button issue for argument near the end of the term, guaranteeing controversy when it wraps up in June.

In Dickerson v. United States, No. 99-5525, the Court will finally address the 1968 statute by which Congress attempted to replace the Miranda rule and its mandatory conclusive presumption of coercion with a totality of the circumstances test. The Solicitor General normally defends the constitutionality of Acts of Congress if any respectable argument can be made, but in Dickerson that office has effectively joined the defendant and argued that the statute is unconstitutional. The task of defending it falls to amici curiae.

Other Cases of Note

State courts and the federal circuits have, of course, decided cases of interest in the past few months. Here, briefly, are some of the more interesting ones.

Dissociative identity disorder, formerly multiple personality disorder, was held legally irrelevant to sanity in State v. Green, 984 P. 2d 1024 (Wash. Sept. 30, 1999). Although the disorder is "generally accepted" for the Frye test, there is no scientific consensus on how to relate it to legal sanity. This case suggests an intriguing approach for combating psychobabble defenses.

The use of propensity evidence for sex-crime prosecutions survived a constitutional challenge in People v. Falsetta, 21 Cal. 4th 903 (Nov. 1, 1999). A number of jurisdictions have waived the character evidence rule for sex-crime cases in recent years. See, e.g., Fed. R. Evid. 413 (enacted 1994).

Admitting the defendant's guilt without his consent is ineffective assistance without a showing of prejudice, even if the evidence is overwhelming and the concession is part of a strategy to avoid the death penalty. The Florida Supreme Court so held in Nixon v. Singletary, No. SC 93192 (Jan. 27, 2000).

Police can be sued for not observing the Miranda requirement to cease questioning upon the suspect's invocation of his right to counsel, the Ninth Circuit held in Cal. Attys. for Crim. Justice v. Butts, 195 F. 3d 1039 (Nov. 8, 1999). The court was unimpressed with the argument that Miranda was a rule of evidence governing admissibility of confessions, not a constitutional mandate governing police conduct. The issue may require reconsideration after the Supreme Court decides Dickerson.

A habeas corpus case is commenced when the petitioner files a petition, not when he asks for counsel, everywhere except the Ninth Circuit. The Tenth Circuit joined the others in Moore v. Gibson, 195 F. 3d 1152 (Sept. 28, 1999). The date matters for statute of limitation purposes as well as the applicability of the Antiterrorism and Effective Death Penalty Act of 1996. The Ninth Circuit's unique interpretation in Calderon v. U.S. District Court, 163 F. 3d 530 (1999) continues to stand alone. The Ninth Circuit also decided that, despite the huge sums California spends on defense counsel, it is still not good enough to qualify for the "fast track" procedures established by the AEDPA as the quid pro quo for providing state habeas counsel. Ashmus v. Woodford, No. 99-99007 (Jan. 24, 2000).

Finally from California, the issue of race-based peremptory challenges arises again. Thirty-two years ago, eight years before Batson v. Kentucky, 476 U.S. 79 (1986), California led the nation in banning such use of the peremptory challenge in People v. Wheeler, 583 P. 2d 748 (Cal. 1978). But no good deed goes unpunished. The Ninth Circuit decided in Wade v. Terhune, No. 98-16720 (Feb. 2, 2000) that Wheeler's test for whether a prima facie case of discrimination has been made, so as to require an explanation of race-neutral reasons for the challenge, presents too high a hurdle for the defendant. Watch for Supreme Court review of this issue.

* Kent Scheidegger is Legal Director of the Criminal Justice Legal Foundation and Vice-Chairman for e-communications of the Federalist Society Criminal Law and Procedure Practice Group. Address suggestions and comments to CJLF's amicus briefs in many of the cases discussed in this article can be viewed at


2001 The Federalist Society