The recent overturning of Michael Skakel’s conviction in the Martha’s Vineyard murder of Martha Moxley has brought a lot of attention to “ineffective assistance of counsel” claims. The case raised a lot of eyebrows because Skakel’s lawyer was Mickey Sherman, a high-profile attorney often seen as a talking head on those vacuous news programs that follow salacious criminal cases. Sherman, who was lambasted by the court overturning the conviction for being ineffective in various ways, was reportedly paid $1.2 Million for the Skakel case (I could have been just as ineffective for far less). Certainly if a lawyer like that could be found ineffective, “ineffectiveness” must be a great way to get post-conviction relief, right? Wrong! said the Supreme Court of the United States yesterday in the case of Burt v. Titlow coming out of the State of Michigan.
A quick summary of the case. Vonlee Titlow and her aunt Billie Rogers were arrested for the murder of Rogers’ husband by pouring vodka down his throat and smothering him with a pillow. Titlow’s first lawyer explained the overwhelming evidence to Titlow and recommended a plea deal. He secured a manslaughter deal with 7-15 years in exchange for her testimony against Rogers, even though the bulk of the evidence pointed to Titlow as the main perpetrator. When taking the plea, the lawyer placed on the record that he had extensive discussions with the defendant “over a long period of time” about the case and that she understood that if she went to trial she could be found guilty of murder. Three days before Aunt Billie’s trial,Titlow was steered to a new lawyer, Fredrick Toca, by a corrections officer to whom she proclaimed innocence. She also told Toca she was innocent. Without checking into the facts of her case or even receiving the file from lawyer #1, Toca told the DA that Titlow would only testify if she was given 3 years. The DA rejected that offer and withdrew the plea agreement since Titlow was now refusing to testify under the terms of the original deal. Billie gets acquitted since Titlow was essentially the only source of evidence against her. Titlow – not so much. A video placed her at the scene and the DA introduced several out of court statements “which squarely demonstrated participation in the killing.” After her conviction, Titlow was sentenced to 20-40 years in jail. She brought a State habeas petition to get her original plea bargain back citing “ineffective assistance of counsel” When that was denied, she took it to Federal Court where the lower court upheld the State court, and the Sixth Circuit Court of Appeals overturned all of them, finding Toca ineffective. SCOTUS disagreed and restored the 20-40 year sentence.
Most of the articles about the Titlow case have focused on Titlow’s lawyer having broken some ethical rules in arranging his fee from an advance to be paid to Titlow for her life story – see for example “Supreme Court Doesn’t Necessarily Care If Your Lawyer Is Unethical” in The Atlantic. But that article and others like it appear to have been written by folks who did not read the whole decision, or at least perhaps read it while texting, driving or playing Call of Duty. The case is not an indictment of how little SCOTUS cares for ineffectiveness claims; rather its an indictment of how limited the Great Writ of Habeas Corpus has become under a gem of a statute called the Anti-Terrorism and Effective Death Penalty Act(AEDPA). AEDPA was proposed by Sen. Bob Dole and signed into law by President Bill Clinton in 1996. Simply put, it decimated and destroyed much of the Writ’s reach; Federal habeas corpus review of State court judgments was nearly demolished. Federal courts must now heavily presume that the State court got the conviction right and that counsel was effective. That’s the law.
So the burden in Federal Court is extraordinarily high to prove that a trial lawyer in a State criminal case was ineffective. That’s really all the high court ruled in this case – the defendant did not meet her burden of proof. It did not really pass judgment on the lawyer’s effectiveness – it took for granted that the State Court correctly found the lawyer was effective as AEDPA required and it said that the Sixth Circuit which voted to grant the writ should have done the same. In writing the 9-0 opinion Judge Alito stated:
Recognizing the duty and ability of our state-court colleagues to adjudicate claims of constitutional wrong,
AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state
court. AEDPA requires “a state prisoner [to] show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error . . . beyond any possibility for fair-minded
That’s a tall order and one which the defendant here did not meet. Here, the Court stated, the defendant repeatedly protested her innocence to Toca. The Sixth Circuit stated that Toca did not mention Titlow’s proclamation of innocence on the record during the withdrawal of the plea, only that she felt 7-15 was higher than most manslaughter defendants receive. The Sixth Circuit believed that this fact “sufficiently rebuts the Michigan Court of Appeals’ finding that the plea withdrawal was based on Titlow’s assertion of innocence.” Not so fast, said Judge Alito – where the deference?
The State court merely recognized, Alito stated “that there is nothing inconsistent about a defendant’s asserting innocence on the one hand and refusing to plead guilty to manslaughter accompanied by higher-than-normal punishment on the other.” He added,”Indeed,a defendant convinced of his or her own innocence may have a particularly optimistic view of the likelihood of acquittal, and therefore be more likely to drive a hard bargain with the prosecution before pleading guilty.Viewing the record as a whole, we conclude that the Sixth Circuit improperly set aside a “reasonable state-court determinatio[n] of fact in favor of its own debatable interpretation of the record.”
In other words, the Court stated that just because the Sixth Circuit had a different view than the State Court of the evidence below was no reason for the Sixth to overturn the conviction. It also chastised the Sixth for its decision on Toca’s effectiveness. The Sixth had held that there was no evidence that Toca gave Constitutionally sufficient advice on whether to withdraw the plea. Again, the Supremes said that the Sixth got it backwards:
We have said that counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment and that the burden to “show that counsel’s performance was deficient” rests squarely on the defendant…. The Sixth Circuit turned that presumption of effectiveness on its head. It should go without saying that the absence of evidence cannot overcome the strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance
The Court pointed out that it was not crazy about what Toca did here, violating ethical rules by agreeing to accept as his fee a portion of the advance the defendant was going to get for the rights to her life story and waiting six weeks after being retained to talk to Titlow’s first lawyer about the case, but stated “the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer’s violation of ethical norms does not make the lawyer per se ineffective.”
The liberal wing of the court agreed with the decision but Sotomayor and Ginsburg filed their own separate concurring opinions.
Sotomayor said that everyone should be mindful that this ruling was made only on “burden of proof” grounds: “As our opinion notes, [Titlow] bore the burden of overcoming two presumptions: that Toca performed effectively and that the state court ruled
correctly. She failed to carry this burden. We need not say more, and indeed we do not say more.” Judge Sotomayor noted that:
[O]ur statement of the facts . . . does not imply that an attorney performs effectively in advising his client to withdraw from a plea whenever a client asserts her innocence and has only a few days to make the decision. Had respondent made a better factual record-had she actually shown for example that Toca failed to educate himself about the case before recommending that she withdraw her plea then could well have prevailed. Because (and only because) respondent failed to present enough evidence to over come the twin presumptions of AEDPA . . .I fully join the opinion of the Court.
Ginsburg took an easier way out. She said once Titlow broke the plea agreement by refusing to testifying exchange for 7-15 she could never get it back. So therefore there was no plea agreement to reinstate even if the court found Toca ineffective.
This case sends one clear message – those defendants who feel they were wrongfully convicted and had ineffective assistance of counsel better make sure their appellate and habeas lawyers take their best shot in State Court. Make a clear and detailed record of what the ineffectiveness was and have evidence to back it up. Otherwise, don’t count on the Federal Court to have any sympathy for your plight.
Incidentally, I looked up Frederick Toca and found that a few years after the Titlow case, he was disbarred by the State of Michigan due to his conviction of one felony and three misdemeanors, all relating to forgery of license documents and driving while license suspended. Also, the panel found, that Toca filed false evidence with trial and appellate courts in a personal injury matter. In both of the wrongful convictions I have had overturned, the trial lawyers were disbarred after the trials for fraud and other misconduct.