Tuesday, October 14, 2014

Certificate of Service for Anders Brief Must Specify that Non-English Speaking Defendant Was Informed of Brief and Rights in Language He Understands

Upon receiving a certificate of service for an Anders brief that just noted that a hard copy of the brief would be served on Moreno-Torres, a defendant who did not speak English according to the record, the Fifth Circuit asked for an amicus brief regarding what it should do to ensure that Moreno-Torres’s due process rights are protected.  The amicus recommended that the court direct counsel to file an amended certificate of service indicating that counsel communicated to Moreno-Torres, in a language Moreno-Torres understands, both the substance of the Anders brief and his rights pursuant to Anders, including the right to file a pro se response to the Anders brief.

Counsel then filed an affidavit stating that he communicated the substance of the brief and Moreno-Torres’s rights under Anders to Moreno-Torres via telephone through an interpreter.  Counsel also filed an affidavit by the interpreter attesting to the communication.

The panel “commend[s] these supplemental clarifications confirming that Moreno-Torres received due process” and concurs with counsel that the appeal presents no nonfrivolous issue for appellate review. 

So, be sure to file an adequate certificate of service that explains that the client received adequate notice of the substance of the Anders brief and his rights under Anders in a language he understands!



Anonymous Genaro Cortez said...

I filed an Anders brief a few days before this post--and was not aware of this certificate of service requirement for non-English speakers.

I filed a "Motion to Amend Certificate of Service" under Fifth Circuit Rule 27.1.4. The appeals court granted the motion and amended my certificate of service.

Just an fyi for anyone like me who was not aware of this requirement.

I'm glad I read this post.

10/30/2014 06:09:00 PM  

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