Truth, justice, and the American style plea bargain.

• Author: Strutin, Ken
• Position: IV. Proof and Truth: Burt v. Titlow through Conclusion, with footnotes, p. 859-880 - Miscarriages of Justice

4. PROOF AND TRUTH: BURT V. TITLOW

   In the 2013 term, the Supreme Court decided Burt v. Titlow, in which pretrial investigation, a withdrawn plea, a full trial, and postconviction review provided a rollercoaster perspective on the role of accuracy and finality in the justice system. (219) Like Lafler, this case also arose in Michigan, and a plea offer was rejected in favor of a trial. (220)

   Vonlee Nicole Titlow, along with her Aunt Billie Rogers, had been arrested for first-degree murder for the death of her Uncle Donald Rogers; it was alleged that they had poured vodka into his mouth and placed a pillow over his face to asphyxiate him. (221) The attorney who initially represented Titlow and negotiated a deal that required Titlow to testify against her Aunt Billie in a separate trial. (222) In exchange, the prosecution promised to reduce the charge to manslaughter and recommend seven to fifteen years in prison. (223) The record at the sentencing hearing showed that Titlow's attorney had reviewed the case evidence with her and that she was aware that there was sufficient evidence to support the murder charge. (224) The court approved the plea. (225)

   Just three days before Aunt Billie's trial started, Titlow changed counsel. (226) This second lawyer wanted to renegotiate the sentence recommendation and asked for a three year minimum. (227) The prosecution would not reopen the agreement to lower the prison term. (228) In court, Titlow's plea and cooperation were withdrawn with full knowledge that the original murder charge would be restored. (229) Without Titlow's key testimony, Aunt Billie was acquitted. (230)

   At Titlow's trial, her defense was lack of intent to harm her uncle. She had denied any knowledge of the acts that lead to the victim's death. (231) Moreover, Titlow claimed that she had tried to prevent Aunt Billie from hurting her husband. (232) Nonetheless, the jury convicted Titlow of second-degree murder, choosing to give credence to her previous out-of-court statements acknowledging participation in the act rather than her courtroom disavowals. (233) The judge sentenced Titlow to a term of twenty to forty years in prison. (234)

   Before turning to the appellate issues of effective assistance of counsel apropos the plea, it is worth considering the tension created by this scenario between accuracy and resolution, truth and compromise. Procedural channels tend to shape and circumscribe the core evidence in a case (i.e., the defendant's confession). Vonlee Titlow had to choose among her roles accorded by the system: the accused who made out-of-court statements (potentially suppressible); the witness for the prosecution willing to testify against her co-defendant; the pleader who allocuted in exchange for a bargain; and finally, the litigant who testified in her own defense at trial. Thus, Titlow was the nexus of key evidence in a case that heavily relied on her statements. And depending on the stage of the prosecution and the purpose of the proceeding, the ratio of revealed truth (at trial) to constructed truth (at plea) would be evaluated differently. Legal truth is truly in the eye of the beholder, for instance, the prosecution might have been unsatisfied with her proffered testimony at Aunt Billie's trial, or Titlow could have recanted or modified her statements. Indeed, the fact that someone pleaded guilty is not always dispositive of true guilt. Indeed, innocence can be resurrected on appeal or at parole with difficulty and problematic results. (235)

   In her state appeal, Titlow maintained that her second lawyer's advice, which led to the plea withdrawal, was ill-considered based on his inadequate investigation of the facts and evaluation of the strength of the prosecution's case. (236) The Michigan Court of Appeals rejected this argument, finding that the second lawyer's strategic choices had been reasonable under Strickland, since his client had claimed that she was innocent. (237) In other words, counsel's decision to withdraw the plea due to an assertion of innocence was not unreasonable, despite the advantages of the plea bargain. Failing to find a state court remedy, Titlow turned to federal habeas corpus where she confronted "doubly deferential" review under the AEDPA. (238) The district court denied relief, finding the Michigan Court of Appeals' decision reasonable on both "the law and the facts." (239) The second lawyer's choice to seek a better sentencing bargain was not ineffective since Aunt Billie's trial was in a matter of days and his client denied any involvement in the act. (240) The Sixth Circuit disagreed, finding that the state court's decision premised the plea withdrawal on Titlow's claim of innocence, while the record showed that the real reason was to gain a better and more reasonable sentencing recommendation. (241) And the record did not reveal that the second lawyer had fully informed Titlow about the consequences of taking back her guilty plea. (242) Citing Lafler, the Sixth Circuit found ineffectiveness of counsel and remanded the case for the prosecution to reoffer the plea bargain and for the trial judge to "fashion" an appropriate remedy guided by the original offer. (243)

   Back in the state trial court, the prosecution adhered to the circuit court's order and reoffered the plea bargain, notwithstanding that a crucial element of the bargain had been abated by Aunt Billie's acquittal and death. (244) However, Titlow could not allocute as required. She conceded pouring alcohol into the victim's throat, but refused to admit participation in the actual killing or knowledge that her actions contributed to Rogers' death. (245) Still, upon consultation with her new counsel. Titlow confessed to putting her uncle in danger by administering alcohol down his throat knowing that it might cause death. (246) The state court judge took the plea under advisement, and later the Supreme Court accepted the case for review. (247)

   Justice Alito, writing for the majority, concentrated on the key to federal review under the AEDPA: "State courts are adequate forums for the vindication of federal rights." (248) Thus, the first prong of the "doubly deferential" standard had to be assessed: competency of the state court's fact-finding and application of Supreme Court precedent. (249) In the Court's view, a federal habeas judge did not possess any kind of special wisdom that should trump his or her state court counterpart without clear and convincing evidence of unreasonableness in decision making. (250) Under this standard, the majority found the Michigan Court of Appeals' decision completely reasonable. (251)

   The record supported the state appeals court's finding that the second lawyer's advice to withdraw the plea was made only after Titlow's innocence claim. (252) Indeed, she had passed a polygraph test disavowing any plan to murder her uncle or being present when it happened. (253) And while she was in jail, it was a deputy sheriff who admonished her against pleading guilty if she were actually innocent, which led to the employment of her second counsel. (254) Thus, these facts combined with the change of counsel immediately before Aunt Billie's trial, at which Titlow would have had to incriminate herself, and her exculpatory statements at her own trial, supported the idea that respondent regretted her original plea. Since the record showed that innocence and not sentencing was Titlow's chief concern, the Sixth Circuit improperly substituted its judgment for the reasonable conclusions of the state appeals court. (255) In point of fact, it was not inconsistent for a criminal defendant invested in her interpretation of the evidence to seek some advantage in plea bargaining by virtue of her risk analysis. Justice Alito observed: "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." (256)

   Since the Michigan Court of Appeals' finding of facts was reasonable and entitled to deference, the Sixth Circuit erred in finding a Strickland violation. (257) The sticking point was respondent's claim of innocence. According to Justice Alito, the type of advice counsel might render must be filtered through a client's assertion of innocence. (258) And her second attorney's advice to withdraw the guilty plea was presumed correct in the absence of proof to the contrary. (259) Moreover, the decision to accept or reject a plea bargain was exclusively the defendant's. Hence, Titlow's change of heart about going forward with an arrangement that involved accepting an above-guideline sentence for manslaughter only days before she was to inculpate herself under oath at Aunt Billie's trial was an informed choice. (260) And for this reason, the second lawyer's performance was not ineffective under Strickland. (261)

   The Sixth Circuit's rejection of the state court analysis was also based on the second attorney's failure to acquire the client's file before his first court appearance. (262) Justice Alito again emphasized the importance of the "presumption of effectiveness;" in this case based, curiously, on undocumented information: "The record does not reveal how much Toca [the second lawyer] was able to glean about respondent's case from other sources; he may well have obtained copies of the critical materials from prosecutors or the court." (263) But the Supreme Court did not hang its hat on this assumption about what information the second attorney might have possessed. Instead, it relied on the earlier court proceeding where Titlow admitted guilt and affirmed that her first attorney informed her of the evidence against her and that it was sufficient to prove first-degree murder. (264) Thus, her second lawyer could impute to Titlow knowledge of the advice and evidence from this first proceeding and rightly conclude that his client's...