486 U.S. 429 (1988)
Ellis T. McCoy, an indigent defendant, was convicted by a Wisconsin trial judge of abduction and sexual assault and sentenced to twelve years in prison.1 He filed an appeal from that conviction, and the court appointed an attorney to represent him.2
After studying the case, the appointed attorney advised McCoy that further appellate proceedings would be completely useless.3 The attorney presented three options: voluntarily dismiss the appeal, proceed without a lawyer, or authorize the attorney to file a brief presenting the strongest arguments for reversal while also advising the court of the conclusion that the appeal was frivolous.4 McCoy selected the third option.5
Counsel then prepared a brief that set forth the facts, advanced four arguments for reversal, and prayed that the conviction be set aside.6 In the same document, counsel stated that further appellate proceedings would be frivolous and without any arguable merit and prayed that he be permitted to withdraw.7 The brief contained no explanation of the reasons for counsel's conclusion that the appeal lacked merit.8
Because the brief did not comply with the discussion requirement in Rule 809.32(1), the court ordered it stricken and directed counsel to submit a conforming brief within fifteen days.9 Counsel did not comply.10 After unsuccessfully attempting to obtain a ruling on the constitutionality of the rule in the intermediate appellate court, counsel filed an original action in the Wisconsin Supreme Court seeking to have the discussion requirement declared unconstitutional.11
The Wisconsin Supreme Court upheld the rule.12 The United States Supreme Court noted probable jurisdiction and set the case for argument.13
Whether Wisconsin Rule of Appellate Procedure 809.32(1) requiring appointed counsel to include in a no-merit brief a discussion of why identified issues lack merit is consistent with Anders v. California?14
Under Anders v. California, appointed counsel who concludes that an indigent defendant's appeal is wholly frivolous must file a brief referring to anything in the record that might arguably support the appeal.15 This enables the court to determine whether the appeal is frivolous and whether counsel has fulfilled the duty of diligent review.16 The principle of substantial equality requires appointed counsel to perform the same thorough evaluation as retained counsel but does not demand identical procedures in every respect.17
Yes. The Wisconsin rule extends the Anders brief by requiring a discussion of why the identified issues lack merit.18 This supplies concrete evidence of counsel's diligence and assists the court in verifying frivolity without converting counsel into an amicus curiae.19 In this case Ellis T. McCoy's appointed attorney filed a brief that advanced four arguments for reversal yet omitted any explanation of the frivolity conclusion, prompting the court to strike the brief and order compliance with the discussion requirement.20
The added discussion furthers the central Anders objective of assuring that indigent defendants receive the same diligent record review that affluent defendants obtain by purchase.21 The court retains ultimate responsibility for deciding whether the appeal may proceed.22
Wisconsin Rule of Appellate Procedure 809.32(1) is consistent with Anders v. California because the discussion requirement reinforces rather than undermines the safeguards established for indigent appellants.23
Related opinions on this issue
Joined by Justices Marshall And Blackmun
Justice Brennan dissented on the ground that the rule compels appointed counsel to brief the case against the client by explaining why issues lack merit.24 This directly violates the Anders and Ellis v. United States holdings that counsel must remain an active advocate and may not assume the role of amicus curiae.25 He maintained that once counsel identifies arguable issues in the Anders brief, any further discussion of their lack of merit impermissibly shifts counsel from defender to opponent and erodes the adversarial process guaranteed by the Sixth Amendment.26
Whether the Wisconsin rule discriminates against indigent appellants?27
The Fourteenth Amendment demands substantial equality and fair procedure for indigent defendants in criminal proceedings.28 It ensures they receive the same rights and opportunities on appeal as defendants who can retain counsel, although absolute equality of every procedural detail is not required.29
No. The rule imposes on appointed counsel the same professional obligation of thorough record review and candid advice to the court that ethical rules already place on retained counsel who conclude an appeal is frivolous.30 McCoy received precisely the diligent evaluation and identification of four potential arguments that a paying client would obtain.31 The additional discussion requirement merely documents the frivolity conclusion already required under Anders without creating any disparity in the quality of representation or access to appellate review.32
The Wisconsin rule does not discriminate against indigent appellants because it maintains substantial equality in the core services provided by counsel.33
Whether the Wisconsin rule violates an indigent defendant's Sixth Amendment right to effective assistance of counsel?34
The Sixth Amendment guarantees indigent defendants the right to effective assistance of counsel on appeal.35 This requires appointed counsel to act as an active advocate devoted to the client's interests rather than as a friend of the court, subject only to the ethical duty not to advance frivolous claims.36
No. Counsel's obligation to advocate the client's cause to the best of his or her ability remains undiminished.37 The rule merely requires that, after counsel has identified every arguable issue and resolved all doubts in the client's favor, the basis for the frivolity conclusion be stated to the court.38 In McCoy's case the attorney fulfilled the advocacy role by presenting four arguments for reversal and only then noted the conclusion that further proceedings would be frivolous.39 This satisfies both the client's interest in zealous representation and the court's need for assurance that the withdrawal request rests on a conscientious examination.40
The Wisconsin rule does not violate the Sixth Amendment right to effective assistance of counsel because it preserves counsel's duty of undivided loyalty while providing the court with necessary information.41
Related opinions on this issue
Joined by Justices Marshall And Blackmun
Justice Brennan further argued that the rule creates an unconstitutional inequality because an indigent defendant whose appointed counsel unilaterally deems the appeal frivolous has no recourse to a second opinion.42 A wealthy client can always seek a second opinion and might well find a lawyer who in good conscience believes it to have arguable merit.43 This disparity, he concluded, denies indigent appellants the same rights and opportunities on appeal that the Constitution requires.44
He stressed that reasonable attorneys can and do differ on whether a given issue is arguably meritorious.45 Forcing the poor to accept one lawyer's adverse assessment while the rich may shop for a more favorable view violates the guarantee of substantial equality on appeal.46