Alyson Palmer has a good example of one in today's DBR, where a lawyer filed an Anders brief, and the court of appeals denied it, saying that the lawyer should examine the plea colloquy:
A federal appeals court has granted a tax fraud defendant a new chance for a trial after one of its judges flagged an issue that prevailed on appeal.
The court's unusual intervention in the case of Anthony Davila set up an 11th U.S. Circuit Court of Appeals decision that an Augusta, Georgia, federal magistrate judge erred by getting too involved in the plea bargaining process.
The 11th Circuit panel concluded comments by U.S. Magistrate Judge W. Leon Barfield violated the rule against judges' involvement in plea negotiations.
The comments came at a hearing addressing Davila's request to fire his court-appointed attorney. Barfield told Davila that "there may not be viable defenses to these charges" and that the only thing at his disposal was accepting responsibility for his crimes as a way to get a reduced sentence, according to the transcript.
Accepting responsibility, Barfield told Davila, would require Davila to "go to the cross" and tell the probation officer preparing his sentencing report everything he had done.
At the 11th Circuit, prosecutors acknowledged Barfield's comments crossed the line but argued the remarks didn't merit a reversal.
Davila's attorney, Michael N. Loebl of Fulcher Hagler in Augusta, initially didn't raise any appellate claim based on the comments, at first filing a brief saying Davila didn't have any basis to appeal his conviction or sentence.
But the 11th Circuit rejected Loebl's brief and pointed him to the idea that the magistrate judge made a mistake that could win Davila a new trial.