Burt v. Titlow and the Ineffective Assistance of Counsel of Record

JURIST Guest Columnists David Debold of Gibson, Dunn & Crutcher and Akiva Shapiro of Gibson, Dunn & Crutcher discuss ineffective counsel with respect to the recent US Supreme Court case...


"We are living in a plea-bargaining world" could be the theme song for our criminal justice system. More than nine-tenths of all criminal cases, at both that state and federal levels, end in a guilty plea. The justice system would grind to a halt without the vast majority of defendants choosing the rose of a favorable plea deal over the possible thorn of a higher sentence if convicted at trial.

In a recent run of cases set against this backdrop, the US Supreme Court has outlined the parameters of claims alleging ineffective assistance of counsel at the plea bargaining stage. These important decisions include Padilla v. Kentucky, Lafler v. Cooper, and Missouri v. Frye. By all indications, the court was poised to build upon these cases in Burt v. Titlow, which presented a number of plea-withdrawal issues for a defendant who, in even the prosecutor's own words, had been the "victim of some bad advice."

But a strange thing happened on the way to this anticipated doctrinal development. Both at argument and in its opinion earlier this term, the court began and ended with the thinness of the record that Titlow's attorneys had developed in state court. With the record silent on the critical question of what exactly Titlow's trial attorney had said and done during a critical three-day period before Titlow withdrew her plea, Titlow's constitutional claim crashed against the double presumption in the state's favor, under Strickland v. Washington and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (PDF), for ineffective assistance claims in a habeas corpus proceeding.

The court's opinions in the case and comments at oral argument hinted that Titlow might well have prevailed had her appellate attorney developed the record in state proceedings—by including, at the very least, an affidavit from Titlow herself regarding the deficiencies of her pre-trial counsel. But because of these gaps in the record, the case ended up being more a cautionary tale about the duties of post trial defense counsel, who are obligated to develop in a timely manner the facts for an ineffective assistance claim, and less about the deeply troubling performance of Titlow's plea withdrawal attorney. As a result, Titlow's new Supreme Court counsel was rendered helpless in the quest to vindicate Titlow's Sixth Amendment rights.

That is a shame, because the facts that were developed are compelling. The central issue was whether Titlow was ineffectively counseled on her ill-fated decision to withdraw a guilty plea for assisting in her aunt's murder of Titlow's well-to-do uncle. The evidence against Titlow was overwhelming, including a secretly tape-recorded admission that she poured alcohol down her unconscious uncle's throat and held his nose, after which the aunt suffocated him with a pillow; a confession to police; and the aunt's reward payments to Titlow. Titlow's original attorney was wise to obtain a favorable plea deal and Titlow was wise to accept it.

Nevertheless, while Titlow waited in jail to testify against her aunt, a sheriff's deputy encouraged her to withdraw her plea if she had doubts about her guilt and then referred her to another attorney, Toca. Before picking up the case file from previous counsel or apparently even advising Titlow on the risks of litigating, Toca told the court that Titlow was withdrawing her plea because the prosecutor had declined to sweeten the plea deal. The consequences were severe: Titlow was convicted of murder, and instead of a sentence of 7 to 15 years for manslaughter, she received 20 to 40 years.

As compelling as the facts were, the legal issues also were important for the development of ineffective assistance doctrine at the plea stage.

Strickland established a two-part test for evaluating ineffective assistance of counsel claims under the Sixth Amendment: "First, the defendant must show that counsel's performance was deficient"—i.e., that it "fell below an objective standard of reasonableness ... under prevailing professional norms." Second, "the defendant must show that the deficient performance prejudiced the defense"—i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Recently applying Strickland in the plea context of Padilla, the Supreme Court made clear that "the negotiation of a plea bargain is a critical phase of litigation," such that a defendant, per Cooper, is entitled to the effective assistance of competent counsel in "deciding whether to plead guilty" or whether to instead reject a plea offer and proceed to trial. In Von Moltke v. Gillies, the court stressed that "an accused is entitled to rely upon his counsel [1] to make an independent examination of the facts, circumstances, pleadings and laws involved and then [2] to offer his informed opinion as to what plea should be entered."

The case's first important legal issue was whether Strickland contains a stated-belief-in-innocence exception, as the government had successfully argued in state court. Under such an exception, an attorney's abject failure to investigate the facts and law, and to render objective, informed advice at the plea stage, would never constitute ineffective assistance if his client maintained he was innocent. This would be wholly at odds with counsel's Sixth Amendment duties, as the authors of this article argued in an amicus brief submitted on behalf of the National Association of Criminal Defense Lawyers (NACDL).

Second, the court instructed in Cooper that a defendant trying to meet Strickland prejudice prong in the negotiated-plea context must establish that "but for the ineffective advice of counsel there is a reasonable probability that ... [she] would have accepted the plea." As the Fourth Circuit noted recently in Merzbacher v. Shearin, the Supreme Court has not "resolved what, if anything, a petitioner must show in addition to [her] own credible post hoc testimony" to demonstrate prejudice. The parties in Titlow disputed prejudice on both legal and factual grounds, with Titlow arguing that she could demonstrate prejudice through her testimony alone and that in any case she had provided corroborating evidence.

Unfortunately, instead of engaging these issues in any detail, the court struggled at oral argument to understand what exactly the record showed about the investigation that Toca did (or didn't do) and what advice he gave (or didn't give).

Tellingly, the very first question for Titlow's attorney at argument—from Justice Sonya Sotomayor—was about the scant record developed in state court:

[Y]our adversary ... says there is nothing in this record to show what research was done or not done [by Toca]. The fact that the prior counsel's record wasn't reviewed doesn't say that he didn't talk to the prosecutor, doesn't say that he didn't look into other record evidence, ... or any of the other circumstances that could have informed him adequately.

Justice Antonin Scalia followed up only minutes later:

[C]ounsel for the defendant has the duty to show that counsel did not [investigate or advise properly]. It's—it seems to me you are putting the burden on the other side to—to prove that the—that counsel knew all this. And that's not the way the game is played.

Later, Sotomayor commented: "[T]his may be the first case that I have been involved in as a judge ... where, in a situation like this, the defendant has not put in an affidavit to explain what happened."

Not surprisingly, Justice Samuel Alito's opinion for the court began and ended with how the absence of record evidence was fatal to Titlow's case, given the twin presumptions (under Strickland and AEDPA) in the state's favor that exist in habeas cases raising ineffective assistance claims. The court noted that, under AEDPA, "the prisoner bears the burden of rebutting the state court's factual findings 'by clear and convincing evidence,'" and under Strickland, counsel is "strongly presumed to have rendered adequate assistance," with the burden resting on the defendant to "show that counsel's performance was deficient." Without record evidence rebutting the state court's findings and demonstrating inadequate performance, the state wins, and the habeas petitioner loses.

The court made clear that Titlow's attorney's conduct was "far from exemplary." The court also hinted, and Sotomayor said outright, that had Titlow "made a better factual record ... then she could well have prevailed." But Titlow simply did not have the affirmative evidence even to get to the merits questions of her counsel's deficient performance or the prejudice it caused.

Importantly, the court did go out of its way to reject the stated-belief-in-innocence-exception, noting that "a defendant's proclamation of innocence does not relieve counsel of his normal responsibilities under Strickland." And Sotomayor's elaborated on this point in her concurrence, adopting the above language from Von Moltke.

But in hindsight, Titlow's legacy is likely to be mainly a cautionary tale about the critical importance of developing a strong, detailed record of both deficient performance and prejudice in state court proceedings. The irony is that defendants alleging ineffective assistance of counsel often must rely again on counsel to build such a record.

After Titlow, an attorney should never rely on the bare record from the trial court in making an ineffective assistance of counsel claim. Counsel must, at a minimum, submit an affidavit from the defendant that describes in detail the actions taken and decisions made by the trial attorney that the defendant contends demonstrate deficient performance, along with a detailed description and supporting evidence demonstrating that the defendant was prejudiced by those deficiencies. In addition, counsel should whenever possible obtain affidavits from other witnesses—including prior counsel—going to both performance and prejudice, and should obtain and submit to the reviewing court whatever supporting documentary evidence is available.

Only by taking care to build an appropriate record can post-trial counsel hope to prevail—no matter how egregious was trial counsel's error. Absent such a record, after Titlow, counsel might find himself on the receiving end of an ineffective assistance of appellate counsel claim.

David Debold is a partner in Gibson, Dunn & Crutcher's Washington D.C. office, and Akiva Shapiro is a senior associate in the Firm's New York office.  Both are members of the Firm's Appellate and Constitutional Law and Litigation practice groups.  Mr. Debold's practice includes white collar and complex civil litigation. He is a former federal prosecutor and former Special Counsel to the United States Sentencing Commission, where he currently serves as Chair of its Practitioners Advisory Group.  He is the editor of the two-volume treatise Practice Under the Federal Sentencing Guidelines.  He received his J.D. from Harvard Law School. Mr. Shapiro received his J.D. from Columbia Law School.  Among other pro bono and community service work, he sits on the Board of Governors of the American Association of Jewish Lawyers and Jurists.

Suggested citation: David Debold and Akiva Shapiro, Burt v. Titlow and the Ineffective Assistance of Counsel of Record, JURIST - Sidebar, Jan. 20, 2014, http://jurist.org/sidebar/2014/01/debold-shapiro-ineffective-assistance.php.


This article was prepared for publication by Jason Kellam, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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