United States v. Grostefon

Anders condemned a California procedure under which appointed counsel could tell the court that an appeal lacked merit, withdraw, and leave an indigent appellant without counsel to pursue the claims the appellant wished to raise. The Supreme Court required an advocate's brief identifying anything in the record that might arguably support the appeal before withdrawal could occur.

The military system differs materially. Military appellants are guaranteed appointed appellate counsel, and the service Courts of Military Review must independently review the entire record for legal and factual correctness even if counsel assigns no errors. Thus, a military appellant is not placed in the same position as Anders, whose counsel withdrew and left him to litigate alone.

Moreover, Grostefon's claims were apparently framed with the aid of trial defense counsel, who retained continuing post-trial responsibilities. His appellate counsel did not withdraw or file a no-merit statement against him; counsel simply failed to identify the issues in the appellate submission. The court therefore declined to import Anders mechanically into military practice.

Appellate counsel must raise all arguable issues, but need not fully brief claims that counsel professionally considers frivolous. Still, counsel is an advocate, and when uncertain should err on the side of bringing a client-requested issue to the appellate court's attention. Identifying an issue does not require extensive briefing or endorsement of its merits.

If counsel believes that a requested issue would be counterproductive, counsel should advise the accused and seek withdrawal of the issue. If the accused refuses, counsel may ethically list the issue for the appellate court without further argument. Counsel may also restate an issue in more effective appellate terms and may concentrate briefing on claims with arguable merit.

The court prescribed a prospective minimum procedure. When an accused specifies an error in a request for appellate representation or another form, counsel must bring it to the Court of Military Review's attention, and that court must at least acknowledge that it considered and disposed of the issue. If the court rejects the issue, counsel must advise the accused about further review; unless the accused agrees to withdraw or abandon it, counsel must identify it in a petition to the Court of Military Appeals.

This rule protects both the reality and the appearance of meaningful representation. It also assists appellate courts, because personally raised claims can help identify errors that busy counsel or judges might otherwise overlook, while the statutory full-record review prevents undue harm from merely flagging a weak claim.

The court found no indication that the Air Force Court of Military Review neglected its statutory responsibility to review the entire record, including Grostefon's request for appellate counsel and the four claims listed there. The nature of the claims also made them issues that the lower court necessarily would have encountered in conducting its required legal and factual review.

The Court of Military Appeals reviewed the suppression, sufficiency, and evidentiary claims itself and concluded that they lacked merit. The broad challenge to the guilty findings either duplicated the sufficiency challenge or was necessarily included in the Court of Military Review's Article 66 review.

Because the asserted errors did not warrant correction, and because no prejudice resulted from counsel's omission, the court affirmed the Air Force Court of Military Review's decision under Article 59(a). The newly announced requirements governed future practice rather than requiring a remand here.