This is the 5th in the series, I hope that readers are finding it informative and helpful in giving them some insight into cases before the highest court. This case is Burt v. Titlow.
It was argued before the Justices on October 8th (one of the first cases they heard) and is a 6th amendment case.
It deals with the issue of sixth amendment ineffective counsel case which takes us all the way back to the year 2000. It began in August 2000 when police arrived at the home of Donald and Billie Rogers where they discovered the body of Mr. Rogers dead on the kitchen floor.
Police initially believed that Rogers (a chronic alcoholic) had passed out fallen from his chair and died of natural causes when he struck his head. However following the standard autopsy it was determined that he had actually been smothered to death.
In the following days Rogers niece, Vonlee Titlow (the subject of this case) revealed details of her uncle’s death to her boyfriend. She told him that she and her aunt had poured vodka down Rogers throat after he had passed out, held their hands over his mouth and nose and that her aunt had smothered her husband with a pillow.
The boyfriend approached police about what he’d been told and they requested that he wear a recording device during a subsequent encounter with his presumably soon-to-be ex girlfriend. During that meeting she repeated details about her role in her uncle’s death and asked her boyfriend to serve as an alibi. The recording also captured her stating she felt guilty for killing her uncle.
Mrs. Rogers was the sole beneficiary of her husband’s large estate and soon after his death she provided Titlow with approximately $100,000 presumably to ensure her silence.
In January of 2001 the authorities arrested both Ms. Rogers and Ms. Titlow and charged them with premeditated first degree murder (a crime which carries a punishment of Life without possibility of parole).
Titlow’s first attorney filed a number of pre trial motions and was able to get her trial severed from that of Ms. Rogers. He also negotiated a plea bargain with authorities. As part of this deal she was required to submit to a polygraph test which was given in October of 2001.
During this examination Titlow confirmed she had participated in the crime and the examiner concluded that she was truthful.
Titlow then agreed to a conditional plea agreement in which the charges were reduced from 1st Degree Murder to Manslaughter with a sentence of 7-15 years. She also had to testify at her aunt’s trial and waive her right to appeal the sentence.
Titlow formally entered a plea on October 29, 2001. The court accepted the plea and set a sentencing hearing for December 19th. Before that hearing took place Titlow was advised by a Sheriff’s deputy that she should not plea if she was not guilty. He also urged her to fire her attorney in favor of his own attorney
Titlow took this advice but the new attorney passed her case on to an associate, one Mr. Toca. Toca agreed to take the case in exchange for some jewelry and the right to retain income from the sale of the story to the media. Under the terms of this fee agreement Mr. Toca would only be paid if the case went to trial.
At the motion hearing on November 29, 2001 Toca stated that the basis for withdrawing the plea was that the offer was out of line and that she would not testify against her aunt unless the sentence was reduced to three years which he and his client felt was acceptable.
At no point during the argument did either Titlow or her attorney assert she was innocent.
The court granted the motion and set a trial for January 14, 2002. Toca requested more time to prepare for the trial since he had just been hired “last week”. The court denied this request but later granted a request to delay the trial until March 4, 2002.
On February 6, 2002 Toca moved to withdraw as counsel on the grounds that communications with his client had broken down. The court was critical of Toca for the manner in which he had conducted his case and questioned the ethics of the fee agreement but it granted the request and appointed new counsel.
At trial Titlow was convicted of 2nd degree murder based on the original evidence.
At the sentencing hearing the prosecutor was sympathetic to the defendant and her counsel stating that she got some bad advice and that the new attorney did a good job at the trial. Titlow said that she made her decisions based on what Mr. Toca had promised her.
She was sentenced to a term of 20-40 years. Meanwhile her aunt had died (so ironically had she stuck to the deal she never would have had to testify)
Titlow appealed her conviction to the Michigan Court Of Appeals based on ineffective counsel because Mr. Toca should not have advised her to withdraw from what was a good plea agreement.
Titlow also alleged that Toca did not review the case file prior to the November hearing nor did he consult with her prior attorney (certainly had he done so it would have given him pause about withdrawing the plea given the evidence against her).
The court rejected her appeal based on the fact that she had told Toca she was innocent and therefore it was not unreasonable for him to advise her to withdraw her plea even if there was evidence against her. Certainly we have all heard of cases where a defendant seemed to have a hopeless case but was able to prove their innocence so there is some logic in this ruling.
The Michigan Supreme Court denied her appeal so she made an appeal to the US District Court For Eastern Michigan. She argues that the court erred in finding she was not denied her right to effective counsel and improperly applied applicable case law (which we will examine shortly).
The District Court affirmed the ruling of the Michigan Court but certified her case for appeal. She appealed to the Sixth Circuit which reversed and the case was then appealed to the USSC.
The key case in 6th amendment ineffective counsel cases is Strickland v. Washington (1984) 466 US 668.
In that case the court ruled 8-1 to establish a two part test to determine ineffective counsel claims.
First, the defendant must show that counsel’s performance was “deficient,” such that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Second, this deficient performance must be so serious as to deprive the defendant of a fair trial.
Regarding the first prong, the defendant must show that it fell below an “objective standard of reasonableness.”
The standard of “reasonableness” means that the attorney should be loyal to his client without any obvious conflict of interest. Further he must consult with the client to keep him properly informed.
In terms of his overall conduct he should make all “reasonable investigations” to insure that the proposed strategies in the case are in the best interests of the client
The court was reluctant however to apply a specific detailed list of what duties the attorney must perform because they felt to do so would restrict effective representation since cases have so many permutations.
Regarding the second prong the court stated that in order to reverse a conviction based on ineffective counsel there must also be some actual harm to the defendant or in other words it must be shown that the defendant would have had a better outcome if his counsel had been more effective.
Justice Marshall dissented from the ruling saying that he felt the standards were not specific enough and that the burden of proving ineffective counsel should not fall on the defendant. He also felt there should be a higher standard in death penalty cases.
In applying the Strickland standard to this case I personally have to side with the Court of Appeals.
To begin with if you look at the first prong of the test it seems to me that attorney Toca’s performance falls beneath the reasonable standard.
I don’t do criminal defense work so I wouldn’t have taken such a case but if for some reason I did or was asked my opinion on the case I find it difficult to see how you can justify trying to withdraw the plea agreement.
The recordings of the defendant as obtained by her boyfriend are very bad for her case, so even if you get the polygraph examination withdrawn you still have some very serious evidence against your client and under the circumstances a pretty good plea deal.
And of course we also have the fact that the fee agreement compensated the attorney in part by selling the story to the media only if the case went to trial so certainly the attorney had a substantial interest in seeing that the case went to trial.
For me this is really the more serious issue, Toca had a vested interest in seeing that the case went to trial and once it seemed he was not going to get paid he withdrew from the case.
And obviously since she was sentenced to 20 years versus seven years had she simply kept the plea agreement then the outcome would’ve been better.
Unlike some other cases where you debate over whether a better attorney would have gotten a not guilty verdict we know for sure here that keeping the plea deal would have been better. Indeed since she would have begun serving her sentence in 2002 it is entirely possible she would be out of jail now rather than facing the possibility of many more years behind bars.
However I do think there is room for someone to hold that this is not a case of ineffective counsel as the standard is pretty high. Generally speaking there is a principle that if a lawyer proposes a strategy that he reasonably thinks is viable then it is not IAC if that strategy fails or even if other attorneys think it ridiculous.
Indeed as I previously discussed we have all heard of cases where it seemed like the defendant had no chance but in the end the attorney pulled it off. However the fact that the attorney seemed to not review the file is troubling. Had he done so prior to meeting and still thought they had a chance then that is one thing but if he did not then it is well another.
The case was argued before the court on October 8th so we have some clues as to how they might tend to vote and those clues do not look good for Ms. Titlow, even with regard to the more liberal Justices. Justices Sotomayor and Ginsburg both seemed skeptical as to whether or not there was sufficient proof that the decision of the lower courts (pre 6th) was unreasonable.
I hope the court will rule in favor of the 6th (and indeed pre argument thought they would) but it seems that the precedents on ineffective counsel are such that Ms. Titlow may pay dearly for her errors in judgment.