Ineffective Assistance in a Plea: Lafler Redux?
As SCOTUS Week continues, we turn to what could be the most factually interesting case of the 2013 term, and one that is being argued before the court as we speak.
Vonlee Titlow arguably helped to murder her uncle. Titlow poured vodka in his mouth while he was passed out drunk, while her aunt held his nose shut, but relented and stopped her aunt from continuing. After she walked away, the aunt smothered the uncle with a pillow. Later on, the aunt paid Titlow at least $100,000 for the assistance (plus a car, and possibly more cash) and to remain silent. Titlow, of course, mentioned this to her "paramour," who turned on her.
Both Titlow and the aunt were charged. Titlow's first attorney negotiated a plea deal: testimony against the aunt in exchange for a lenient 7 to 15 year sentence.
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Titlow, at the advice of a sheriff's deputy, and with his referral to new counsel, sought the advice of Fred Toca, a now-disbarred attorney. Toca, without reviewing the file, without talking to the previous attorney, and in exchange for the media rights to Titlow's story, may have advised her to withdraw her plea. (Others, including the dissent in the Sixth Circuit, argue that her own delusions of innocence were behind the decision).
Ironically enough, the aunt was acquitted, and later passed away. Titlow was then convicted of second-degree murder and sentenced to twenty years.
Lafler, Frye and Ineffective Assistance of Counsel
Two years ago, the Supreme Court, in Missouri v. Frye and Lafler v. Cooper, held that the Sixth Amendment's right to effective counsel extended to plea bargaining. In Lafler, the facts, though less juicy than this case, were also based on bad legal counsel, with the attorney allegedly convincing the client to reject a plea deal because the prosecution would be unable to establish intent to murder because the victim had been shot below the waist.
He didn't take the plea, was convicted, and received a more-than-double sentence.
The Supreme Court held that
"Where counsel's ineffective advice led to an offer's rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed."
The remedy, in most cases, is a re-offering of the original plea where the convicted charge differed from the plea bargain.
For Titlow, she was on the verge of testifying. It seems likely that the deal would have gone through, absent the advice. And the plea was for manslaughter, not second-degree murder. So long as the Supreme Court is convinced that Toca's advice led to the rejection, rather than delusions of innocence, she should be able to make the requisite showing.
Justice Alito's Dissent, In Real Life
Rory Little, over at SCOTUSblog, makes an excellent point about Justice Alito's dissent and its realization in this case. Back in Lafler, Alito's dissent argued for a different and more clear remedy for these types of cases, instead of merely requiring a re-offering of the original plea deal, especially when the facts have changed.
Here, the original plea deal is no longer possible. Titlow was supposed to testify against her aunt in exchange for a more lenient sentence. The aunt, who was acquitted, is now dead.
With Alito's feared scenario presented to the Court, will this lead to a gutting of Lafler, a revision of the remedy, or something else altogether? Stay tuned to our Supreme Court blog to find out.
Related Resources:
- Titlow v. Burt (FindLaw's Caselaw)
- Lafler, Frye Don't Warrant Second or Successive Motions (FindLaw's Eleventh Circuit Blog)
- What Will the Fourth Amendment Mean After Fernandez? (FindLaw's Cal Case Law Blog)