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A messy follow-up to Lafler and Frye: Can “fun” facts produce “good” law?

When the Supreme Court, two Terms ago, extended Strickland’s “ineffective assistance of counsel” doctrine to plea negotiations (Lafler v. Cooper and Missouri v. Frye), Justice Alito objected in dissent to “its opaque discussion of remedy” and begged the Court to “come to the rescue” by providing better guidance.  Then Michigan’s Solicitor General sought certiorari to review the Sixth Circuit’s grant of habeas relief to a prisoner who claimed that bad lawyering led her to withdraw from a sweet plea deal.  Justice Alito, the only Justice not using the “cert. pool” to evaluate petitions, likely did not object – and Vonlee Titlow’s pro se cert. opposition failed to highlight the messy and unsettled facts that Michigan’s petition glossed over.  But Tuesday’s oral argument in Burt v. Titlow may highlight problems with sometimes-too-speedy “cert. pool” grants.  The Justices are likely to feel frustrated in extracting useful guidance from parties that can’t agree on even the most basic facts.

The messy facts

Now that Titlow has talented appellate counsel, it turns out that the parties dispute virtually every important fact, as well as the legal conclusions that flow from them – so much so that it could make a “DIG” – dismissal as improvidently granted, as the Court did last Term in Boyer v. Louisiana – an attractive option.  Indeed, they can’t even agree on Titlow’s gender (Michigan uses “he” although Titlow has long self-identified as a transgender woman), or what to call the leading precedent (the world calls it Lafler, but Titlow sticks to Cooper).

Vonlee Titlow undisputedly participated in the killing of her uncle, at the behest of his wife (Titlow’s aunt).  Although the aunt smothered the drunk and unconscious uncle, Titlow also poured vodka in his mouth in a fruitless attempt to hasten death.  The aunt later paid Titlow $100,000 for her assistance and to keep quiet.  But instead, Titlow blabbed to her lover, who secretly recorded some damaging admissions.  So Titlow and her aunt were charged with first-degree murder.

Titlow’s first lawyer quite competently engineered a severance from the aunt’s trial and then, in return for Titlow’s testimony against her aunt, negotiated a plea bargain to manslaughter with a seven- to fifteen-year sentence.  Titlow and the state court accepted the deal.

But Titlow appears to have been unable to accept the legal conclusion that she could be guilty of murder just for helping.  (Thus Titlow is similar to the defendant in Lafler, who appeared to not understand, and was misadvised on, the legal point that he could have an “intent to kill” even if he only shot the victim below the waist.  Lafler thus supports the principle that incompetent legal advice can vitiate a decision to reject a plea bargain.)  While Titlow was in jail waiting to testify against her aunt, a sheriff’s deputy advised her not to plead guilty if she did not believe she was guilty.  The deputy referred Titlow to a lawyer, who referred her to Fred Toca, whom she then retained.  (Toca has subsequently been disbarred, in part for his actions in this case.)

Toca failed as a lawyer in at least two ways.  First, he took as a retainer some legal rights to Titlow’s “story.”  As the amicus brief from Yale’s Ethics Bureau details, this is undoubtedly a violation of attorney conduct standards because it creates a conflict of interest: the lawyer’s interest is in having a highly publicized trial, not a quiet plea bargain.

Second, it appears clear that Toca did no investigation into Titlow’s case before appearing with her a few days later to withdraw her plea.  Michigan does not dwell on this fact – I’d expect an early question at argument to nail it down.  Michigan instead argues that investigation would have made no difference (thus apparently arguing no “prejudice” under Strickland’s second prong).  Frustratingly, there seems to have been no record made in the state court to support a solid finding on the point.  But Toca undisputedly did not review the file (he did not have it), nor did he communicate with Titlow’s first lawyer.  After Lafler, and in light of accepted Bar standards, “no investigation” by a criminal defense lawyer prior to advising on a plea offer would seem to clearly be deficient lawyer performance.

But – and this point may most deserve the Court’s attention, although Michigan downplays it — the Michigan court of appeals appeared to state a categorical exception: that even without any investigation, a lawyer can never be unreasonable for recommending that a defendant not plead guilty “when a defendant proclaims his innocence.”  Such a universal rule seems directly contrary to Strickland.  Many guilty defendants “proclaim” their innocence, not infrequently because (as in Lafler) they do not understand the law.  It is a competent lawyer’s job to investigate a case sufficiently to advise whether “proclaiming” innocence is legally and factually wise, particularly in light of adverse evidence a jury will hear.  Even though the ultimate decision to plead guilty or not is reserved to the defendant, it is a competent lawyer’s duty to investigate and advise about “proclaimed” innocence prior to allowing the defendant to walk the plank.

Here too there seems to be a serious factual gap: why did Titlow withdraw her plea?  The amicus brief filed by the federal government and the dissent by Judge Alice Batchelder in the Sixth Circuit would give the Court an “out” here: they suggest ruling that Titlow failed to carry her burden to prove that the cause was Toca’s bad advice, rather than her own stubborn “proclaimed innocence.”

Two other potential red-herrings to watch for at argument:  Michigan stresses that Titlow’s withdrawal was “set in motion” by her belief in her innocence.  But the initiation of events does not answer the further question of causation, which Lafler requires.  Similarly, Michigan asserts that there is “no evidence” that Toca actually advised Titlow to withdraw her plea.  But the Michigan courts assumed that he did, which should settle this “fact” on federal habeas review.  Moreover, there was evidence: from Titlow, who said she was so advised; the state prosecutor, who agreed that Titlow was “a victim of some bad advice;” and Titlow’s (third) lawyer, who told the trial judge that “Ms. Titlow received some advice” before withdrawing.  Michigan objects that these statements were “unsworn.”  But they were undoubtedly “evidence” that the state and federal courts could consider.

In any case, Titlow did withdraw her plea with Toca at her side.  So the aunt went to trial, and without Titlow’s adverse testimony she was acquitted (and can’t be retried because she then died).  The state then tried Titlow on the reinstated murder charge.  The jury convicted her of second-degree murder rather than her prior manslaughter plea, and Titlow was sentenced to twenty years – five years more than her prior plea deal.

The Michigan courts affirmed.  But on federal habeas, the Sixth Circuit reversed the district court’s denial and ordered the state to re-offer Titlow her manslaughter plea.  That remedy comes directly from Lafler, and is what drew Justice Alito’s dissenting attention:  he argued that the state should not be required to re-offer the plea deal in every case, particularly if the facts have changed.  And they certainly have here: Michigan can no longer receive its bargained-for “benefit” of having Titlow testify against her aunt.  Beyond that, the Sixth Circuit noted that “the state court would have the discretion ‘to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.’”  This wide-open state court discretion is quoted directly from Lafler, so it is difficult to attribute “error” to the Sixth Circuit unless some Justices have refined their view. The Court granted review to consider three questions.  The first is whether the Sixth Circuit correctly applied the highly deferential standards of the Antiterrorism and Effective Death Penalty Act (AEDPA) regarding state court determinations of fact and law.  This general question is present in every federal habeas case, and is always somewhat “fact-bound.”    The Sixth Circuit clearly applied the correct legal standard, quoting “unless rebutted by clear and convincing evidence” from 28 U.S.C. § 2254(e).  Whether it applied that standard correctly is of course always debatable.  But do we really need another fact-bound AEDPA deference decision?

The second question is whether  a defendant’s post-hoc (some might say self-serving) testimony, “standing alone,” can be sufficient for a habeas court to find that the defendant “would have accepted [or not withdrawn from] a plea offer but for ineffective assistance.”  Other circuits require “additional objective evidence” before finding this Lafler-Strickland standard fulfilled, but the Sixth Circuit’s opinion expressly rejected such a requirement.  Although the Sixth Circuit’s “standing alone” statement was dictum – there was other evidence in the record, albeit not overwhelming — the Justices are likely to want to make clear that a self-serving post-hoc statement of a defendant is insufficient, alone, to support a constitutional violation.  But it is also something of a unicorn, as no court – including the Sixth Circuit – would ever really accept solely a defendant’s allegation.

In its third question, Michigan asked the Court to determine “whether Lafler always requires a state trial court to resentence … or merely requires a re-offer of a plea.”  The problem with this question is that the Sixth Circuit plainly did not “require” the state court to resentence, but rather quoted directly from Lafler to acknowledge wide-open discretion.  Justice Alito’s Lafler dissent raised a different question: whether a plea must always be re-offered.  Although Michigan does not squarely present that question, the Justices may be inclined to answer it on these unusual facts.

Another important question

The easiest way out of the Titlow mess may be to rule that the Sixth Circuit did not defer sufficiently to Michigan’s courts, declare a “fair reading” of the state court’s opinion that resolves the crucial facts against Titlow, and then reverse the grant of relief.  This would allow the Court to avoid the thicket of remedy (as Judge Batchelder suggested in her dissent).

But regardless of reversal, the question of “no investigation” by Titlow’s lawyer before withdrawing her plea cries out for attention.  One hopes the Court will not endorse an ineffective assistance of counsel standard that allows no investigation whenever a defendant “proclaims innocence.”  A defendant who unintelligently “proclaims innocence” in the face of strong evidence of guilt perhaps most requires informed legal counsel.  Advice about likely legal outcomes, based upon a reasonable study of the facts, is the essence of lawyering, for the innocent as well as the guilty.  And by no stretch of a competent lawyer’s imagination could Titlow have looked legally “innocent” on the undisputed facts, no matter how firmly she “proclaimed” it.  While Titlow certainly had the independent right to demand a trial no matter how bad the evidence looked, she also had the constitutional right to competent advice from her counsel, after a reasonable fact and law investigation, before making her important decision.


When the parties can’t even agree on the gender of the defendant, you can bet you’re in for a messy dogfight.  Perhaps not since Lisenba have facts this “fun” been presented to the Court in a criminal case.  But while amusing facts may provide entertainment, they seldom produce “good law.”  Although further clarity about Lafler and Frye may yet emerge from this mess, it may come at the cost of unseemly factual disputes that make Titlow a poster child for the flaws in an impatient “pool grant” certiorari system.

Recommended Citation: Rory Little, A messy follow-up to Lafler and Frye: Can “fun” facts produce “good” law?, SCOTUSblog (Oct. 7, 2013, 10:12 AM),