Unethical Lawyer Was Not Ineffective, Supreme Court Holds


In Burt v. Titlow, the Supreme Court last Tuesday held that despite her attorney’s unethical and “[t]roubling” performance, Ms. Titlow was not entitled to relief.

Vonlee Titlow was charged with first-degree murder for allegedly helping her aunt kill her husband. Her original attorney exhaustively reviewed the State’s evidence and concluded it would support a conviction for first-degree murder, which carries a mandatory life sentence in Michigan. He reached an agreement with prosecutors for Ms. Titlow to testify against her aunt, plead guilty to manslaughter, and receive a sentence of seven to fifteen years.

Days before she was to testify against her aunt, Ms. Titlow told a deputy sheriff at the jail that she was innocent. The sheriff told her not to plead guilty and suggested she hire a new lawyer, Frederick Toca. Toca accepted publication rights to her story as partial payment for his services, did not consult the original lawyer or obtain his file, but nonetheless told Ms. Titlow “he could take the case to trial and win,” Justice Ginsburg wrote in a concurring opinion. “With Toca’s aid, Titlow’s plea was withdrawn just three days after Toca’s retention as defense counsel.”

Without Ms. Titlow’s testimony, her aunt was acquitted and later died. Ms. Titlow proceeded to trial and was convicted of second-degree murder. “At sentencing,” Justice Ginsburg wrote, “the prosecutor volunteered that Titlow had been the ‘victim of some bad advice.'” She was sentenced to a term of twenty to forty years in prison.

On appeal, Ms. Titlow asserted Toca provided ineffective assistance of counsel when he advised her to withdraw her plea without knowing the strength of the state’s evidence against her or fully informing her of the consequences of withdrawing her plea. The Michigan courts denied relief but the Sixth Circuit found Toca was ineffective.

In a disappointing analysis, the Supreme Court invoked the Anti-Terrorism and Effective Death Penalty Act as a barrier to relief and reversed the Sixth Circuit’s decision. The Court was troubled by Toca’s actions but held “they were irrelevant to the narrow question” of whether the state court’s decision was reasonable.

“We recognize that Toca’s conduct in this litigation was far from exemplary,” Justice Alito wrote for the Court. “He may well have violated the rules of professional conduct by accepting respondent’s publication rights as partial payment for his services, and he waited weeks before consulting respondent’s first lawyer about the case. 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.”