Tuesday, August 4, 2015

How do you say "Anders" in Spanish?

From Laura Shaneyfelt --

If you are preparing an Anders brief for your non-English speaking client, the Tenth Circuit has a new procedure. The Court recently adopted a rule from the the Fifth Circuit (here) and the Second Circuit (here)Counsel must make reasonable efforts to contact the defendant in person, by telephone, or through written notice and explain in a language the defendant understands the substance of the Anders brief, the defendant’s right to oppose it, and that the likely outcome of the brief would be dismissal of the appeal.

 This was announced in United States v. Cervantes(No. 14-5053)(07/30/2015), where the Court directed defense counsel to comply with the rule and allowed 30 days for the defendant to submit any pro se pleadings.  Counsel submitted a declaration, telling the Court that, with the help of a court-certified interpreter, he had phoned the defendant, discussed the three topics the Court had enunciated, and told his client of the deadline to file a pro se response. That, the Court noted with appreciation, was in full compliance with its directive.

Prior to this announcement, counsel’s duties when filing an Anders brief were set out in 10th Cir. R. 46.4(B). Under that rule, counsel is required only to advise the court of the defendant’s current address and then the clerk is directed to send the defendant a copy of the brief, the motion to withdraw, and an affidavit for a Motion for Leave to Appeal in Forma Pauperis.

The new rule protects the due process rights for non-English speaking clients. The Second Circuit addressed the adequacy of providing notice which the defendant may not  be able to read. “Where a defense attorney knows that his client falls within the substantial population of those who cannot understand English, it is unreasonable for him to provide English-only notice to the client (who, if counsel has been appointed by the court, is also presumably indigent) of the client’s right.” United States v. Leyba, 379 F.3d 53 (2nd Cir. 2004). Translating the brief is not necessary, according to the court in Leyba

Presumably, the local rules will soon be changed to reflect this new rule set forth in Cervantes. The Court, though, is clearly not waiting for that to happen. Counsel should assure that these steps have been taken and that adequate, understandable notice has been provided to non-English speaking defendants. 

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