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SCOTUS: Sorry, Your Lawyer Was Unethical But Not Per Se Ineffective

By William Peacock, Esq. | Last updated on

A lawyer takes over a case a few days before his client is set to be the star witness in her aunt's murder trial. He doesn't consult the prior attorney. He almost certainly doesn't read the case file in full. And he agrees to take the case on the unethical condition that he obtains the media rights to his client's story.

According to Justice Ginsburg's separate concurrence, he even guaranteed that he could win at trial. His client then withdraws her plea.

Fred Toca is now disbarred for unrelated reasons. His client, Vonlee Titlow, after backing out of the deal, was herself convicted of second-degree murder.

As we recapped in our preview of the case, she claimed ineffective assistance of counsel, a claim rejected by the Michigan courts due to Titlow's repeated assertions of innocence. The Sixth Circuit felt differently, granting habeas relief despite the heavy bar set by the Antiterrorism and Effective Death Penalty Act of 1996.

The Supreme Court, yesterday, reversed that grant unanimously, with the majority arguing that Titlow failed to meet the AEDPA and ineffective assistance Strickland burdens, and that her protestations of innocence had more to do with the withdrawn plea, rather than Toca's "far from exemplary" conduct.

Alito and Michigan: Toca Acted Reasonably

AEDPA deference is the bottom line here. The state court, after considering Toca's conduct, and Titlow's repeated assertions of innocence, came to the conclusion that he acted reasonably in advising his client to withdraw her plea. (She even claimed innocence on remand post-Sixth Circuit, which made re-offering the plea, as Laffler requires, quite difficult for the district court.)

Furthermore, her claim that she wasn't properly advised by Toca is disingenuous in light of her previous attorney's advice on the possible consequences of a conviction, as well as the Court's discussion of the consequences when she initially took the plea.

Alito summed up the law as:

"But 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 ... Troubling as Toca's actions were, they were irrelevant to the narrow question that was before the Sixth Circuit: whether the state court reasonably determined that respondent was adequately advised before deciding to withdraw the guilty plea."

Sotomayor's Concurrence: Titlow Failed Burden of Proof

Though she joined the Court's opinion in full, Justice Sotomayor wrote separately to note that Titlow had the burden to overcome two presumptions: that Toca performed effectively (under Strickland) and that the state court erred under AEDPA. She failed in both regards.

That being said, Justice Sotomayor emphasized that defense attorneys, regardless of their clients' claims of innocence, are not excused from their duties to properly investigate the case and advise their client on potential consequences. Had Titlow proven that her attorney failed to advise her properly, she may have prevailed.

Ginsburg's Concurrence: Broken Bargain is No Bargain

After rehashing Toca's failures, and disagreeing with the majority and the state court about the reasonableness of his actions in light of Titlow's protestations of innocence, Ginsburg laid down her reason for concurring in the judgment only: a broken bargain.

Titlow agreed to testify against her aunt. When she failed to do that, the prosecutor's performance was excused as well, as "plea bargains are essentially contracts." A broken contract means there is no plea bargain to renew under Laffler.

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