Scotus Blog has coverage of Burt v. Titlow, yet another ineffective assistance of counsel case dealing with pre-trial matters. Rory Little offers this overview of the case. I believe the case was argued yesterday but I haven't found a nice summary of the oral argument.
Issue: (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.
LIttle's overview has this passage:
Toca failed as a lawyer in at least two ways. First, he took as a retainer some legal rights to Titlow’s “story.” As the amicus brief from Yale’s Ethics Bureau details, this is undoubtedly a violation of attorney conduct standards because it creates a conflict of interest: the lawyer’s interest is in having a highly publicized trial, not a quiet plea bargain.
Second, it appears clear that Toca did no investigation into Titlow’s case before appearing with her a few days later to withdraw her plea. Michigan does not dwell on this fact – I’d expect an early question at argument to nail it down. Michigan instead argues that investigation would have made no difference (thus apparently arguing no “prejudice” under Strickland’s second prong). Frustratingly, there seems to have been no record made in the state court to support a solid finding on the point. But Toca undisputedly did not review the file (he did not have it), nor did he communicate with Titlow’s first lawyer. After Lafler, and in light of accepted Bar standards, “no investigation” by a criminal defense lawyer prior to advising on a plea offer would seem to clearly be deficient lawyer performance.
But – and this point may most deserve the Court’s attention, although Michigan downplays it — the Michigan court of appeals appeared to state a categorical exception: that even without any investigation, a lawyer can never be unreasonable for recommending that a defendant not plead guilty “when a defendant proclaims his innocence.” Such a universal rule seems directly contrary to Strickland. Many guilty defendants “proclaim” their innocence, not infrequently because (as in Lafler) they do not understand the law. It is a competent lawyer’s job to investigate a case sufficiently to advise whether “proclaiming” innocence is legally and factually wise, particularly in light of adverse evidence a jury will hear. Even though the ultimate decision to plead guilty or not is reserved to the defendant, it is a competent lawyer’s duty to investigate and advise about “proclaimed” innocence prior to allowing the defendant to walk the plank.