The petitioner in this case, Sherry Burt, a Warden at a Michigan correctional facility moved to the Supreme Court challenging the decision of the United States Sixth Circuit Court of Appeals and seeking a writ of certiorari against the decision. The matters that came up for consideration at the Supreme Court involved weighty constitutional issues namely whether the Sixth Circuit gave an appropriate deference to the state trial court decision in Michigan as enshrined in the Antiterrorism and Effective Death Penalty Act of 1996. The second constitutional issue that was subject to determination by the court in this case related to the issue as to whether a subjective testimony of a defendant to the effect that she would have pleaded guilty were it not for ineffective representation by counsel, in itself ,is sufficient, in law as proof of the matter. Thirdly, there was an issue as to whether the Supreme Court decision in Lafler v Cooper availed a remedy of resentencing to a defendant who satisfies the court that ineffective assistance by counsel led to her failure to plead guilty subject to a plea agreement.
The facts of the case in Burt v Titlow at the state trial court were that the respondent, Titlow agreed to help his aunt, Bill Rodgers in murdering his uncle, Donald Rodgers so that the aunt could inherit his estate. The respondent was a transgender male and he, therefore, planned to use some of the money earned from the deal to effect a sex-change operation. Subsequently, Titlow, the respondent was charged with first degree premeditated murder alongside his aunt, Billie. When the matter came up for trial, Titlow initially pleaded guilty to manslaughter following a plea agreement negotiated with the prosecution by his counsel Richard Lustig. The terms of the plea agreement were that Titlow would testify against her aunt, Billie and not appeal his conviction or sentence. In exchange, Titlow was to be prosecuted for a lesser cognate offence, namely that of manslaughter with a sentence of between 7 to 15 years jail term. Titlow confirmed that he had perused the whole evidence together with his counsel and that he was satisfied with his counsel’s advice with respect to the plea bargain and the state trial court subsequently accepted the plea. However, before the trial court passed a sentence, Titlow spoke with Sheriff’s deputy at the jail who advised him not to plead guilty if he was innocent with respect to the charge of murder as charged. The sheriff linked Titlow with another attorney and consequently, Titlow discharged his first attorney, Lustig and enlisted another attorney for the purpose of withdrawing the plea. At the hearing, Titlow confirmed that he understood the import of withdrawing the plea which had the effect of reinstating the first degree murder charge and exposing him to a potential life sentence in case of finding of liability. The respondent also affirmed that he was withdrawing the plea freely and voluntarily and the court consequently granted the motion and proceeded to try his aunt Billie without Titlow’s testimony.
When the matter went for trial, the jury found Titlow guilty of second degree murder and convicted him to a sentence of between 20 to 40 years. The respondent then accused his second attorney of ineffective assistance for allowing him to withdraw his plea. It is my considered opinion that the state trial court was right in adjudging that the decision by counsel to withdraw the plea by counsel is not ineffective representation. The Michigan state trial court rejected the claim of ineffective assistance by Titlow and stated that when a defendant proclaims their innocence, it is not unreasonable for counsel to recommend to the defendant to abstain from entering a plea of guilty irrespective of how the deal by the prosecution on a plea bargain may sound. In essence, the respondent failed to demonstrate to the court that the action by his counsel of allowing him to withdraw the plea fell below objective reasonableness as to found ineffective assistance as enshrined in the Sixth Amendment of the United States Constitution.
The District Court also rejected to grant the respondent a habeas relief that he sought on the footing that he did not satisfy the court that the trial court misapplied the law as to fall within the matters envisaged in the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. The Sixth Circuit then reversed this verdict and granted the respondent a habeas relief holding that the Michigan court had unreasonably determined the facts by holding that the advice by counsel on withdrawal of the plea was based on the proclamation of innocence by the respondent. The majority view in the Sixth Court was of the view that the record contained no evidence and that Titlow’s new attorney relied on the claim of innocence of the respondent and did not look at discovery materials or discuss with the previous attorney until after the withdrawal of the plea. Consequently, they were of the opinion that he could not have adequately advised Titlow on the reasonableness of the plea bargain and therefore his assistance was inadequate and ineffective. The majority then directed the State to reoffer the respondent the original plea agreement even though the state had lost the major benefit of the bargain-namely that of Titlow’s testimony against his aunt. Further, the majority also ordered the trial court to fashion a sentence on remand that effectively remedied the violation of Titlow’s right to effective assistance. It is these holdings that are now being challenged in the Supreme Court.
It is my contention that the majority view as relates to a number of issues was wrong. As the dissenting opinion of the Sixth Circuit Judge Batchelder states, the panel majority erred in failing to give appropriate deference to the Michigan trial court on matters relating to the Antiterrorism and Effective Death Penalty Act. Most importantly, the record as it were does not indicate that the advice by counsel as to withdrawal of the plea was the compelling factor in the respondent’s withdrawal of the plea. On the contrary, the record is to the effect that the respondent was willing and indeed wanted to withdraw the plea even before enlisting the services of the second attorney. In addition, the respondent did not tender any evidence to the effect that the advice by counsel was the decisive factor in his change of plea. Consequently, it cannot be said that the advice or assistance offered by counsel was ineffective as it was not material in this instance. Further, the majority in the Sixth Circuit misdirected themselves to the extent that they failed to identify the conflict that lay between the decision by the Michigan trial court and the Sixth Circuit’s own decision. In particular, the advice given by the new attorney to the respondent was as a consequence of the respondent wanting a new attorney and not his continued want to plead guilty. Indeed, it is undoubtedly competent and reasonable for an attorney to advise his client against accepting a plea offered by the prosecution if the client protests their innocence.
It is my submission that the assistance offered by the second attorney to the respondent was not ineffective as to invoke the claim under the Sixth Amendment. Records show that it is a statement by the respondent to the sheriff that he was innocent that triggered the attorney to advise him on changing his plea. As relates the matter as to whether the grant of a habeas relief by the court was the correct application of the law, it is my submission that it was a misapprehension of the law by the majority in the Sixth Circuit. A court can only grant such a relief only when the trial court decision was predicated on unreasonable application of precedent or if the factual findings of the court were unreasonable. This position was reaffirmed in the case of Harrington v Richter where the court stated that an order of habeas is a guard against malfunction by the state and does not act as a substitute for correction of an error through appeal. More so, the decision as to how to plead rests with the accused and at no time does it rest on the attorney. It was so held in Florida v Nixon that the ultimate authority to determine whether to plead guilty is vested in the accused. This is similarly acknowledged by the Michigan Court of Appeal’s Rules and since the trial court did not misapply the precedents of the court, there was a presumption that the attorney conducted his duty to the client according to his wishes (Benge v Johnson).
With respect to the constitutional issue as to whether the Sixth Circuit made an appropriate deference to Michigan court with reference to the AEDPA, the answer is in the negative. The court violated this deference in at least two ways. First, the majority view that the Michigan court was unreasonable since the attorney did not advise the respondent accordingly is incorrect as already set out above. The respondent did not lead any evidence to demonstrate that the advice by counsel was deficient in line with the position that defendants alleging ineffective assistance of attorney carry a heavy burden of proof (Strickland V Washington). Secondly, the majority reliance on a statement by the respondent’s first counsel that the second attorney did not pick up the respondent’s file until the withdrawal of the plea is respectfully, erroneous. The majority view must have premised their finding on the presumption that the material available in the case file was not accessible to the new attorney, a misguided presumption. Such material would have been available to the new attorney through a review of the court files or a request for additional discovery materials from the prosecutor, a common feature in Michigan criminal proceedings. In addition, there is no record demonstrating that the case file would have affected the advice given by the second attorney to the respondent as the file did not show evidence sufficient enough as to convict the respondent to first degree murder. It is therefore my respectful submission that the assistance offered by the second attorney was not ineffective.
The second constitutional issue that was raised in this matter and which came up for adjudication was whether a subjective testimony by a defendant to the effect that they would have pleaded guilty were it not for an ineffective representation or assistance is sufficient. Where a plea is rejected by a court, there is an onus on the defendant to show that counsel deprived him of an opportunity to plead guilty as stated in the case of Strickland v Washington. In the case of Lafler v Cooper, the Supreme Court formulated three part test for the proof that counsel deprived a defendant the opportunity for pleading guilty. Among the requirements is that the defendant must show that the plea offer would have been presented to the court and that the defendant would have accepted it and the prosecution would not have withdrawn it in light of all the prevailing circumstances. Further, the defendant needs to show that the court would have accepted the terms of the plea agreement and that the terms of the agreement impose a lesser punishment than the one set down by the law. Turning to the issue at hand, it cannot be said that the defendant would surely have accepted the plea as to make the Lafler threshold. It is the respectful submission that the majority in Sixth Circuit misdirected themselves by relying on the respondent’s earlier acceptance of the plea offer as proof of the fact. This is so for the simple reason that the respondent withdrew the plea and protested his innocence. A post-conviction testimony by a defendant that he would have accepted the plea must be ignored as it is no more than remorse.
The third constitutional issue relates to the issue as to whether following the Supreme Court decision in Lafler v Cooper, there existed an appropriate remedy for the state trial court to resentence or to remedy a purported violation of a constitutional right. The majority view in the Sixth Circuit was to the effect that a court would, and thereby ordered the trial court to reoffer the original plea to the respondent or release him. In the Lafler case, the Supreme Court held that a state trial court has three options in case of a remand of a case to it. One of them is to vacate the convictions and resentence the respondent according to the plea agreement. Another option available to the court is to vacate only some of the convictions and resentence the respondent accordingly or leave the convictions undisturbed. In doing this, the Supreme Court seems to have left it open to the trial court to exercise its discretion. However, the Sixth Circuit appears to have developed a new scheme of fashioning a remedy in two respects. First, the court ordered the trial court resentence and suggested that after the reoffer of the plea, the trial court again gets an opportunity to exercise their discretion in fashioning a sentence. It is my humble submission that this again is a misconstruction of the law as stated by the Supreme Court in the Lafler case. The Lafler decision did not avail such a remedy to a defendant but rather meant that once the prosecution reoffers a plea, the judge can exercise his discretion in either vacating the conviction and accepting the plea or leaving the whole mater undisturbed. In another respect, the majority in the Sixth Circuit directed the trial court to fashion its sentence in such a way as to remedy the violation of the constitutional right to effective assistance of counsel. The court erred in ascribing this duty to the trial court, as it is not the trial court’s responsibility to fashion a sentence. Conversely, the remedy of a violation of the right to effective assistance can only be remedied by the government by way of the prosecution reoffering the original plea to a defendant.
In sum, the options available to a trial court on remand are only those stipulated in the Lafler case and no more. Equally, a trial court does not misdirect nor does it fetter its discretion by allowing an original sentence to stand whenever a case is remanded to it.
Brown, D. K. (2013). Lafler's Remedial Uncertainty. Houston Law Review, 21.
Dripps, D. (2012). Plea Bargaining and the Supreme Court: The End of the Beginning? Federal Sentencing Reporter, 14,15.
King, N. J. (2012, 6 19). Lafler v. Cooper and AEDPA. Retrieved 9 13, 2013, from http://yalelawjournal.org: http://yalelawjournal.org/2012/06/19/king.html.
Lucas, L. (2012). Unintended Consequences: The Impact Of The Court's Recent Cases on Structural Ineffective Assistance of Counsel Claims. Federal Sentencing Reporter, 7-10.
Polando, G. (2013). Mitigating Lafler V cooper's Costs. Houston Law Review, 16-17.