A Call to Abandon the Anders Procedure that Allows Appointed Appellate Criminal Counsel to Withdraw on Grounds of Frivolity

Eric B. Schmidt, A Call to Abandon the Anders Procedure that Allows Appointed Appellate Criminal Counsel to Withdraw on Grounds of Frivolity, 47 Gonz. L. Rev. 199 (2011)


Imagine you have been wrongly convicted of a crime. The State’s evidence against you is strong. You do not have any affirmative defenses. You simply deny having committed the crime. After trial, your appointed counsel meets with you. She informs you that she can find no good faith basis for bringing an appeal. Accordingly, she informs you that if you wish to pursue an appeal, she will withdraw as your appointed counsel. Further, she will inform both the appellate court and the State of the strategies that she considered before concluding that there is no good faith basis for arguing your conviction should be overturned. If the appellate court examines the evidence and confirms your appointed counsel’s conclusion, it will not  appoint another attorney for you once your appointed counsel withdraws. You will be left to defend yourself pro se.

Such a process seems shocking, yet this is precisely the possibility that indigent criminal appellants face in Washington State.  The Washington Rules of Appellate Procedure (RAP) provide as follows”

If counsel appointed to represent an indigent defendant can find no basis for a good faith argument on review, counsel should file a motion in the appellate court to withdraw as counsel for the indigent. The motion shall identify the issues that could be argued if they had merit and, without argument, include references to the record and citations of authority relevant to the issues. The adverse party shall file an answer to the motion within 30 days after the motion is served on the adverse party. If requested by the court, an amended answer shall be submitted including argument as to why the identified issues are without merit. The motion and answer will be reproduced by the clerk and served on the adverse party and the person represented by counsel seeking to withdraw.

This procedure, which I shall refer to as the Anders Procedure, was adopted by the Washington State Supreme Court following the United States Supreme Court’s decision in Anders v. California. In this article, I argue that the Washington State Supreme Court should abandon the Anders Procedure and repeal RAP 18.3(a)(2) for three reasons. First, the Anders Procedure infringes on an indigent criminal appellant’s right of appeal under the Washington State Constitution. Second, no ethical rule in Washington prevents an appointed appellate counsel from prosecuting an appeal that counsel believes, in his or her subjective opinion, lacks merit. Third, and most importantly, the Anders Procedure creates role conflicts by requiring the appellant’s appointed counsel to assist the State and by requiring the appellate court to assist the appellant. Thus, abandoning the Anders Procedure will protect the indigent criminal appellant’s right of appeal and allow appointed counsel, prosecutors and appellate courts to return to their proper roles.

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