There's a lot to like about this case.
First, Judge Kleinfeld reaches the right result, holding that it's ineffective assistance of counsel to fail to file an appeal when your client instructs you to do so. Second, Judge Kleinfeld raises some interesting points about this (accurate) principle, particularly when -- as here -- the decision not to appeal seems entirely reasonable, since (1) the defendant's lawyer negotiated what looks like a pretty good (albeit 7-year) plea bargain for his client rather than risk a huge sentence for allegedly distributing 15 pounds of heroin they found in his car, and (2) the appeal that the lawyer didn't file would almost certainly have failed, particularly given the number of times during his plea colloquy the defendant expressly waived his right to file such an appeal. Finally, I like the way Judge Kleinfeld ends the opinion, with this bon mot:
"The case at bar is a particularly plain instance where 'ineffective assistance of counsel' does not mean incompetence of counsel. It may be very foolish to risk losing a seven-year plea bargain on an appeal almost sure to go nowhere, in a major heroin case. Nevertheless the client has the constitutional right [] to bet on the possibility of winning the appeal and then winning an acquittal, just as a poker player has the right to hold the ten and queen of hearts, discard three aces, and pray that when he draws three cards, he gets a royal flush."
Ho-dee-ho.
P.S. - Two points. First, what do you think the odds of that are (drawing the royal flush)? A million to one? Lower? Higher? Make your guess. Got it? Here's the answer. (Don't feel like clicking, or just can't find the answer in the clutter? I'll tell you: 16,215 to 1. A lot, lot higher than I thought actually. Second, I wish Judge Kleinfeld had written the rest of the opinion with the same focus he displays in its last paragraph. Throughout the opinion, he repeatedly writes backhanded slams on the existing rule, even though he eventually applies it. But the rule is what it is because it's the defendant's life, not the lawyer's. And that's why it's his choice. Which is also why -- contrary to Judge Kleinfeld's last paragraph -- it is indeed incompetence of counsel when you refuse (or fail) to follow your client's instruction to appeal. Because it's your job to effectuate his choices. So when you don't appeal when he's told you to do so, you haven't done your job.
