McCoy v. Court of Appeals of Wis., Dist. 1

486 U. S. 429

June 6, 1988

If a criminal client with court-appointed representation wishes to file a frivolous appeal, the lawyer has an ethical obligation to inform the appeals court that the filing is frivolous. A Wisconsin law mandated that court-appointed lawyers explain precisely why the appeal would be frivolous when informing the court of their professional judgment. One lawyer thought this law was unconstitutional, because it seemed to require the client’s lawyer to effectively act as advocate against the client.

Nonetheless, the Supreme Court upheld the Wisconsin law in a 5-3 vote (Kennedy did not participate). Stevens stressed that lawyers already had the obligation to warn appeals courts of frivolous appeals. Surely, he thought, it did no harm to a client to merely explain the basic reasoning behind this legally mandated disclosure. Indeed, the process of writing an explanation would force the lawyer to review the case very carefully in search for any colorable claim. Such a careful review might even convince the lawyer that non-frivolous grounds for appeal existed – thus, the explanation requirement could even work to the benefit of clients in some cases.

Brennan, joined by Marshall and Blackmun, dissented. He agreed that a court-appointed lawyer had to inform the court about frivolous appeals, but found the written explanation law contrary to the Sixth Amendment. For one thing, it discriminated against the poor, because a paid lawyer was never required to file such a written explanation. For another thing, a written explanation effectively did the prosecutor’s work, throwing the client under the bus by openly offering extended legal arguments against their interests. In any event, striking down the Wisconsin law would be no great loss, contended Brennan, because a truly frivolous appeal will almost always be immediately apparent to appeals courts anyway.

Here’s another one of those rare cases where Brennan is actually right. Cases like this really frustrate me. If moderates like Powell or White are determined to give Brennan a majority in a criminal case every now and then, why don’t they choose one like this, instead of horrible rulings like Mills?


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