Argument analysis: Court skeptical that a lawyer may unilaterally countermand client’s instruction to file a criminal appeal

Following Tuesday morning’s argument in Garza v. Idaho, it seems more likely than not that petitioner Gilberto Garza Jr. will get the specific relief he seeks: the reinstatement of his appeal from convictions entered under a plea agreement that contained a waiver of his right to appeal. Most of the justices seemed skeptical of Idaho’s broadest claim, that his lawyer’s unilateral decision to disregard Garza’s instruction to appeal could not constitute ineffective assistance of counsel because Garza had no remaining right to an appellate proceeding. Even if Garza gets his appeal, however, it remains unclear how broad a precedent the Supreme Court will set for other cases involving attorney decisions to enforce an appeal waiver against their own clients.

Under 1984’s Strickland v. Washington, in order to establish ineffective assistance of counsel, the petitioner must show that the lawyer rendered deficient performance, measured by an objective unreasonableness standard, and that there is a reasonable probability that the error caused prejudice, meaning that the error affected the result of the proceeding. The application of Strickland to Garza’s case creates two issues. First, did his lawyer render deficient performance by refusing to file an appeal, despite Garza’s repeated requests, and without consulting Garza? Second, must Garza demonstrate prejudice on the facts of his case, or does the presumption of prejudice adopted in 2000’s Roe v. Flores-Ortega apply?

Tuesday’s hearing was devoted at least as much to the deficient-performance issue as to the prejudice issue, although only the prejudice issue was listed as a question presented. Representing the state of Idaho, Deputy Attorney General Kenneth Jorgensen encountered resistance immediately when he asserted that Garza had waived his right to an appellate proceeding, and therefore his lawyer’s decision not to file an appeal could not possibly violate a right to counsel on appeal. The state “had already secured the waiver of many, many, many issues, in fact, all of the reasonable issues that could be tried,” Jorgensen said.

“Well, many but certainly not all,” interjected Chief Justice John Roberts. “They didn’t assure themselves of victory on appeal since there were arguments outside the scope of the agreement, including some that have to be available outside the scope of the agreement,” Roberts explained, alluding to possible claims that the plea and appeal waiver were themselves involuntary. Acknowledging that the chief justice was correct, Jorgensen tried to use that point as a segue into an argument that the deficient-performance prong of Strickland should always be applied on a case-by-case, totality-of-the-circumstances basis, even when the lawyer has disregarded a client’s instruction to appeal. But that brought resistance from Justice Sonia Sotomayor.

“I can’t square your position with Flores-Ortega because Flores-Ortega seemed to accept as a working proposition that … even, in a guilty plea, there are waivers of some issues but not others, that the question of whether a defendant would have appealed takes into account the plea waiver at that stage, but once a defendant tells an attorney to appeal, that’s his choice,” said Sotomayor.

Jorgensen denied that Flores-Ortega speaks specifically to the outcome of Garza’s case: “Flores-Ortega does not address that circumstance where there are both. It clearly says there’s no duty to consult where there is a waiver. It also says that there is a duty to provide the appeal if it’s requested. And there is no duty to provide the appeal if the client says that he or she does not want an appeal. So Flores-Ortega does not address the fundamental question.”

“I don’t know what’s ‘both’ here,” Sotomayor replied. “This is the second part of Flores-Ortega. … If the defendant doesn’t ask you for [an appeal], you don’t have to consult. But, once he asks you for one, you have to file a notice of appeal.”

Justices Elena Kagan and Neil Gorsuch appeared troubled by the state’s claim that the lawyer has the power to essentially overrule a client’s decision to file an appeal if the lawyer’s judgment is that the client is better off not appealing because of the risk of losing the benefits of the plea bargain.

“You’re saying that even if the client makes a kind of generalized ‘go file an appeal for me. … I don’t know the law, you go do it,’ and the attorney doesn’t file anything, even then you would say there’s no presumption?” Kagan asked. Jorgensen answered yes.

“But doesn’t that run counter to our normal division of labor between clients and lawyers?” interjected Gorsuch. “Don’t clients generally specify the end, ‘I wish to appeal,’ and leave it to the lawyer to determine the means? And doesn’t it become incumbent at that stage upon the lawyer to identify whether there are any viable issues for appeal and come back to the client and say there are some or there are not some? And a failure to do that, why isn’t the failure to do that presumptively prejudicial?”

“I would suggest that the end is not the filing of the notice of appeal but the ultimate goal of the client,” responded Jorgensen.

The state’s implication that applying a presumption of prejudice in situations like Garza’s would open the floodgates to frivolous appeals of guilty pleas did not seem to alarm the member of the Supreme Court with the most recent experience on the courts of appeals, Justice Brett Kavanaugh.

“What practical harm has there been in those jurisdictions, those areas, that have applied the presumption? Because I haven’t seen much evidence of practical problems from the presumption,” asked Kavanaugh, crediting his senior colleagues for his insights. “To pick up Justice [Ruth Bader] Ginsburg’s point, if the appeal is reinstated, you get the appeal, well, most issues are probably going to be within the scope of the waiver and then there might be, in some cases, something outside the scope of the waiver.”

“It seems pretty simple for most appellate courts to deal with that,” Kavanaugh continued, “and I’m not sure there’s any evidence of a problem. And if there’s no evidence of a problem, why complicate the law, as Justice [Stephen] Breyer says?”

Kavanaugh renewed his query about practicality during the argument of Allon Kedem, assistant to the U.S. solicitor general, representing the United States as amicus curiae in support of Idaho. Kedem characterized a presumption of prejudice as an inversion of the normal burden of proof under Strickland, and as “contrary to what this Court has said about frivolous appeals.”

“In terms of experience does the federal government think that the experience of those circuits that have applied a presumption of prejudice has shown a problem?” Kavanaugh asked.

“So it’s a problem only that it leads to the reinstatement of additional frivolous appeals,” Kedem acknowledged. “We’re not saying that it’s such a big problem that the sky is going to fall in, but it does create a couple of practical problems,” which Kedem listed as a need to fully brief the merits before the court of appeals will decide an appeal waiver, and having to deal with the difficult evidentiary question of whether a defendant actually asked for an appeal.

In Garza’s case, there is no dispute as to whether he asked for an appeal. But the parties do not agree whether Garza still retains any viable claim that either the plea or the appeal waiver was involuntary, which presumably would be the only claims he might assert on appeal that would fall outside the scope of the waiver.

Justice Samuel Alito asked Jorgensen whether the voluntariness of Garza’s plea agreement was “still an open question.” Jorgensen replied no, because Garza never argued involuntariness in the state courts. According to Jorgensen, the trial court specifically asked Garza what issues he would raise if permitted to appeal, and he limited it to the issue of his sentence.

In his rebuttal, however, Garza’s counsel Amir Ali insisted that the voluntariness question had not been “raised and dealt with” in the state courts. Ali went back to the same trial-court proceeding cited by Jorgensen and quoted: “The district court says: I do not understand Mr. Garza to be challenging the voluntariness of his appeal waiver. I see his pro se petition as only addressing the voluntariness of his plea agreement as a whole.”

It is not clear whether the Supreme Court will adopt some kind of presumption of deficient performance in situations like Garza’s. It would be somewhat surprising, however, if the court did not at least set forth some rules of thumb for counsel to follow when the client requests an appeal despite having signed an appeal waiver. Under 1967’s Anders v. California, if the lawyer wants to withdraw because he or she does not in good conscience see any viable claim on appeal, then he or she must file a brief outlining all claims that might be raised. (The client must also have an opportunity to file a “pro se” brief, a brief prepared by a client without assistance from an attorney.)

In Garza’s case, the Supreme Court could go farther, perhaps specifying a duty to consult with the client in all cases in which the lawyer proposes not to perfect an appeal, contrary to the client’s request.