In what circumstances will the Court of Appeal refuse to appoint counsel for an indigent criminal defendant whose appeal lacks merit?

In the interim--at least in California--the Court of Appeal's general policy was to refuse to appoint counsel for an indigent criminal defendant whose appeal lacked merit. The refusal to make the appointment, however, came only after the appellate panel independently reviewed the record: "[A]ppellate courts, upon application of an indigent defendant who has been convicted of a crime, should either (1) appoint an attorney to represent him on appeal or (2) make an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. This investigation should be made solely by the justices of the appellate courts. After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court." (People v. Hyde (1958) 51 Cal.2d 152, 154, 331 P.2d 42; italics added.) In other words, if an independent examination of the [40 Cal.App.4th 834] record convinced the appellate court the appeal lacked merit, then there was no reason to honor an indigent litigant's request for appointed counsel. ¹⁰

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