US justices hear ineffective assistance case

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The U.S. Supreme Court is poised to fill in some of the legal blanks left by its 2012 ruling in Lafler v. Cooper, which extended criminal defendants’ right to effective counsel to the plea bargaining stage.

In Lafler, the court held that a defendant who rejected a plea deal based on deficient advice from counsel and later received a more severe sentence at trial must be reoffered the more favorable plea deal.

During oral arguments Tuesday in Burt v. Titlow, the justices pondered whether a defendant can receive such a remedy based almost solely on her word that she would have accepted a plea deal but for counsel’s bad advice.

The facts of the case are disputed, but the state claims that Vonlee Titlow, a transgender woman who was named Harry Titlow at the time of the alleged crime, helped her aunt murder her uncle. Prosecutors claim she held her uncle and poured alcohol down his throat before her aunt suffocated him with a pillow. Prosecutors also allege that the aunt paid Titlow $100,000 for her help and silence, and part of those funds were used for Titlow’s sex change operation.

Titlow initially agreed to a deal in which she would plead guilty to manslaughter and receive a 15-year sentence in exchange for testifying against her aunt. But while she was in custody she was allegedly approached by a sheriff’s deputy who advised her not to plead guilty if she was innocent, and to consult an attorney he knew named Fred Toca.

On Toca’s advice, Titlow (who maintains that she is innocent) withdrew her plea, went to trial and was subsequently convicted of second-degree murder and sentenced to 20 years. Toca has since been disbarred for a number of ethical violations.

Titlow appealed, arguing that Toca’s assistance was ineffective because he failed to conduct any investigation.

The state appellate courts rejected her claim, but the 6th U.S. Circuit Court of Appeals granted habeas relief and ordered the state to re-offer Titlow the original plea arrangement, even though in the absence of Titlow’s testimony her aunt was acquitted and has since died.

The 6th Circuit noted that unlike other jurisdictions, it “does not require that a defendant must support his own assertion that he would have accepted the offer with additional objective evidence.”

The state sought and was granted certiorari by the Supreme Court.

Bad result

Michigan Solicitor General John Bursch argued that the 6th Circuit’s approach was “upside down” because the record contains no evidence aside from Titlow’s word that Toca failed to investigate the case or advise her of the possibility of an adverse trial outcome.

Bursch said the Michigan state courts were correct in finding that it was Titlow’s assertion of innocence that led her to opt for a trial instead of a plea deal.

A bad result doesn’t prove bad advice, he said.

“It was entirely reasonable, from an objective perspective, for an attorney, looking at this record at the time the plea was withdrawn, to say, ‘If you want to maintain your innocence, the most likely bad result at trial is most likely better than the plea deal that you already have,’” Bursch said.

Justice Ruth Bader Ginsburg pointed out Titlow’s statement in the record, which read in part: “I would have testified against my [aunt] had I not been persuaded to withdraw my plea agreement, because an attorney promised me he would represent me. He told me he could take my case to trial and win.”

“So that sounds like she was persuaded by Mr. Toca to go to trial because she could win,” Ginsburg said. “And he had at that point not made any appraisal of the case.”

Bursch disagreed that Toca had failed to assess the case, arguing that the attorney had appeared in court and made “sophisticated” arguments on Titlow’s behalf.

Ann O’Connell, an assistant to the U.S. solicitor general arguing as amicus in support of Michigan, said that the 6th Circuit had overstepped by requiring the state to reoffer a plea deal from which it could no longer benefit.

If such a result were allowed, “every defendant who rejects a plea offer and then is convicted after a trial will have an incentive [to get] back a plea deal that she rejected beforehand,” O’Connell said.

Burden of proof

Valerie Newman, assistant defender at the Michigan State Appellate Defender Office, also argued the Lafler case before the justices in 2011. On Tuesday, she told the justices that the Michigan Court of Appeals had “created an end-run around” ineffective assistance jurisprudence by halting the analysis when a defendant claims innocence.

Even where defendants profess innocence, Newman said, “defense counsel has a duty to investigate [and] inform a client of the risks of either accepting a plea [or] withdrawing a plea.”

“That’s true,” Justice Antonin Scalia replied, “but [the] defendant has the duty to show that counsel did not do that. It’s seems to me you are putting the burden on the other side to prove that the counsel knew all this. And that’s not the way the game is played.”

Ginsburg asked whether the remedy was the right one.

“The offer that was made is impossible to carry out now,” she said. “The offer was conditioned on her testimony at her aunt’s trial. That didn’t happen.”
Newman said that although the remedy is not perfect, it’s the best the state can do for her client.

“The point of the remedy is to put the defendant as closely as possible back in the position he or she would have been in but for the ineffective assistance,” Newman said.

A decision from the court is expected later this term.

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