Appointed-counsel are critical to access justice in Courts of Appeal

Most people know that when somebody is charged with a crime and cannot afford an attorney, the Constitution requires that an attorney be appointed to represent them at trial. But most people don't think about what happens after a person is convicted. What if a person wants to appeal their criminal conviction but cannot pay for an attorney? The United States Supreme Court considered that question in Douglas v. California (1963) 372 US 353 and decided that appellate courts must appoint counsel for people who cannot afford an attorney for the appeal of their criminal convictions.

As a result of Douglas, nearly 40 years ago,  to fulfill our State's constitutional obligations, the California Appellate Project in Los Angeles (CAP-LA) was established to assist the Second District Court of Appeal in recruiting, appointing and overseeing qualified private attorneys on criminal, juvenile and civil commitment appeals. Today, appointed attorneys represent clients in more than 4,000 cases a year in the Second District, based on recommendations of CAP-LA. The Executive Director who helmed CAP-LA for 32 years, Jon B.Steiner, sat down recently and reflected on how the project system, and specifically CAP-LA, dramatically improved the quality of appellate representation in California. (The interview was edited for clarity and length.)

Jon B. Steiner

Before CAP-LA was established, how did the Court of Appeal assign counsel in indigent appeals? Cases were assigned to attorneys who came to the clerk's office. There was no attempt to match an attorney's experience with a case's complexity. An attorney who just passed the Bar exam could be appointed in a special circumstances murder case. Back in 1970 the compensation was $20 per hour, and there were no standard billing practices or guidelines as to appropriate payment and no specified time when appointed counsel could expect to be paid.

It was common for the briefs submitted by counsel to be inadequate. Briefs often inaccurately stated the procedural history and facts of the case. Counsel frequently failed to argue even basic constitutional issues. In In re Smith (1970) 3 Cal.3d 192, 198, the Supreme Court adopted the doctrine of "ineffective assistance of appellate counsel." The Court noted: "In a case bristling with arguable claims of error, petitioner's counsel filed an opening brief consisting of a 20-page recitation of the facts and a one-page argument."

How did CAP-LA get started? In 1982, the budget of the Office of the State Public Defender was cut in half, rendering it incapable of handling the large number of death penalty appeals before the Supreme Court. The Chief Justice of California, the Hon. Rose Bird, asked the President of the State Bar, Anthony Murray, to find a way to work through this problem. This led to the creation of the California Appellate Project in San Francisco (CAP-SF) to assist and support counsel in capital cases.

The appellate courts were in a similar predicament regarding the appointment of counsel in indigent appeals, but there was a paradigm that could be adapted. In San Diego, in the Fourth Appellate District, Division One, Appellate Defenders Incorporated (ADI), had existed before the opening of the State Public Defender's office. There, a small legal office operated as a resource for private attorneys appointed in criminal cases, monitoring the quality of the appellate briefs submitted. The Hon. Arleigh Woods, Administrative Presiding Judge of the Second District, then reached out to Anthony Murray and the CAP Board of Directors, asking them to set up a comparable office in Los Angeles to assist the Second District in appointing, training and assisting qualified attorneys in that Court. CAP-LA was born in 1986. Thomas Kallay was the first Executive Director. I took over in 1988, staying through January of 2019.

How did CAP-LA change the process of appointing attorneys in the Second District? Pursuant to what is now Rule 8.300 of the California Rules of Court, CAP-LA took over the clerk's list of attorneys willing to take appointed cases and started evaluating counsel's work product. The list was initially pared down to include only those who were competent to handle appointed appeals and then expanded as new attorneys applied.

Today, when a case comes to the Court of Appeal and the person cannot afford counsel, the Court refers the case to CAP-LA. The attorneys at CAP-LA classify the case, match it to a qualified attorney and, if counsel agrees, recommend appointment to the Court of Appeal. The project is served with briefs to allow continued oversight of the work product throughout the life of the case.

What types of attorneys take on appointed appeals? CAP-LA has always had a diverse panel of attorneys handling the appeals. When attorneys are added to CAP-LA's panel, they start as either "assisted" or "independent," depending on previous experience. In an assisted case, a staff attorney reviews the appellate record prior to appointment, identifies and discusses possible issues in the appeal, and then reviews the attorney's opening brief before filing. Whether attorneys are handling cases on an assisted or independent basis, CAP-LA's staff attorneys remain a resource for consultation at all stages of the case. Additionally, CAP-LA provides ongoing training seminars on substantive law and appellate writing topics for the panel.

How are panel attorneys paid? In the past in the Second District, attorneys submitted their bills directly to the justices who signed the opinion. Today, panel attorneys submit bills to CAP-LA for review. Staff attorneys recommend payment based on statewide billing guidelines. There are timelines for payments and a process to dispute cuts in any claim. A committee of justices, project directors and practitioners audit selected claims reviewed by CAP-LA staff attorneys to ensure there are consistent payment awards statewide.

Looking back, what are your final thoughts about your work at CAP-LA? I am reminded that in 2014, after over 30 years serving on the Second District as the first female presiding justice on the Court of Appeal, Presiding Justice Joan Dempsey Klein sent a letter remarking that CAP-LA was an "indispensable part of the operations" in the Second District. I am most grateful for the opportunity to lead CAP-LA for the thirty years I spent as Executive Director. I want to thank all the members of the CAP Board, past and present, particularly the three members who have served since CAP's inception: Anthony Murray, Lee Selna and Tom Eres.

Thanks to Richard Lennon who replaced me and Jay Kohorn, CAP-LA's long-time Assistant Director. And I also appreciate the hard work performed by CAP-LA's staff attorneys and support staff, which is essential to getting all the necessary work done. The efforts of these attorneys and those of the panel function as the guarantors of the Sixth Amendment right to competent counsel.

I also want to acknowledge the cooperation and support given to CAP-LA by the four Administrative Presiding Justices I worked with during my tenure: the Hon. Mildred Lillie, the Hon. Charles Vogel, the Hon. Roger Boren, and the current APJ, the Hon. Elwood Lui. Working with each, CAP-LA was able to help overcome some of the serious problems the court faced. And in the final analysis, it is the panel attorneys who do the heavy lifting in each of their cases. Hats off to them.

Author's note

Many of the attorneys on the panel when CAP-LA first started have retired and the panel needs to expand to handle all of the criminal, juvenile and civil commitment cases pending in the Second District and across the state. If you are interested in getting more information about becoming appointed counsel in the Second or any of the other appellate districts, please consider attending a webinar featuring justices on the Court of Appeal on Nov. 13, 2024. Registration information is available on CAP-LA's website at www.cap-la.org.