Friday, November 8, 2013

The Cautionary Instruction: Sixth Amendment not a guarantee of perfect counsel

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
November 8, 2013

This week, the U.S. Supreme Court ruled in Burt v. Titlow that the Sixth Circuit Court of Appeals did not apply the correct standard of review when it decided that advice given Vonlee Titlow about her plea bargain was inadequate.

Titlow had been living with her uncle Donald Rogers and his wife, Billie Rogers, in Troy, MI, at the time of his death in August 2000.

Titlow's boyfriend told police that Titlow and Billie had discovered Donald passed out, and then tried to pour vodka down his throat while holding his nose shut. Titlow allegedly stopped the vodka plan and left the room, at which point Billie apparently smothered Donald with the pillow.

The boyfriend had Titlow recount these details sometime later while wearing a wire.

As the sole beneficiary of Donald's estate, Billie bought new cars for herself and Titlow, wrote Titlow a check for $70,260 and gave Titlow gambling money that Billie deducted from a ledger with $100,000 written on it.

Three days before Billie’s trial, Titlow hired a new attorney who demanded a better plea offer. The state refused and without Titlow's testimony Billie was acquitted. Titlow was later convicted of second degree murder.

Titlow raised an ineffective assistance of counsel claim asserting she was not properly advised during the plea bargain process. The Sixth Circuit set aside Titlow's conviction and ordered prosecutors to re-offer the plea deal in the case, despite the fact that the agreement required Titlow to testify against Billie, who had subsequently died.

Justice Samuel Alito wrote, "When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a ‘doubly deferential’ standard of review that gives both the state court and the defense attorney the benefit of the doubt."

"He [Titlow’s new counsel] may well have violated the rules of professional conduct … and he waited weeks before consulting respondent's first lawyer about the case," wrote Alito. “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."

Although the Court was bothered by the conduct of Titlow's attorney, the Court believed she was "adequately advised before deciding to withdraw the guilty plea."

The U.S. Supreme Court ruled in 2012 that plea bargaining is now governed by the Sixth Amendment right to effective assistance of counsel.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino.

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