Even at the level of the U.S. Supreme Court, sometimes oral argument does little to clarify. That seemed to be the case yesterday in Burt v. Titlow, which I previewed on Monday as a “messy” case presenting a disputed, unsettled, and inc...
Even at the level of the U.S. Supreme Court, sometimes oral argument does little to clarify. That seemed to be the case yesterday in Burt v. Titlow, which I previewed on Monday as a “messy” case presenting a disputed, unsettled, and incomplete factual record. The Justices apparently hoped the case would provide a vehicle to clarify questions left open after its recent decisions in Lafler v. Cooper and Missouri v. Frye regarding ineffective assistance of counsel in the plea bargaining context. Michigan Solicitor General John Bursch began his oral argument clearly and strong, telling the Court that “[i]t’s Titlow’s burden to satisfy the burden of proof,” so “a silent record” must be “dispositive in favor of the State on [federal] habeas review.” But as the Justices gently but firmly probed for factual and legal answers, the attorneys for both sides added facts not found in their merits briefs, made arguments not clearly presented before, and failed to give the Court a clear path out of the woods. Here are some representative comments from the Justices (in order from the transcript):
Justice Sotomayor: “This may be the first case that I have been involved in as a judge … where … the defendant has not put in an affidavit. …[T]here’s a really sparse record here.”
Justice Ginsburg: “So how – how can that – that’s – I’ve never seen anything like this.”
Justice Scalia: “So, I mean, it seems to me quite weird.”
Justice Alito: “You have my head spinning.”
Justice Breyer: “First of all, did anybody make the argument as clearly as you have made it?” Valerie Newman [Titlow’s counsel]: “Not that I’m aware of.” Breyer: “Well that’s the end of that, isn’t it?”
Justice Alito [regarding a document referred to by counsel]: “It’s not in the habeas record, it’s not in the record of the federal court. And we’ve been unable to get it from the State court.”
Justice Sotomayor: “I – I don’t understand what you’re saying.”
Unsatisfied by the parties, the Court seemed to look to Assistant to the Solicitor General Ann O’Connell, appearing on behalf of the federal government as an amicus in the case, for guidance. And O’Connell did offer two simple corrections of the Sixth Circuit – but then even this was not clear sailing. First she asked the Court to hold that a defendant’s post hoc statement, standing alone, that he would have acted differently if he’d had competent lawyer advice “should be viewed with skepticism.” “Every court says that,” Justice Sotomayor quickly retorted, and O’Connell conceded that she was “not asking for a special rule” here.
Second, with regard to remedy, O’Connell urged that Lafler ought not be interpreted to “categorically” require a state to reoffer a plea bargain, when circumstances have changed and the original bargain is now effectively impossible. (In this case, Titlow withdrew, allegedly on her lawyer’s bad advice, from a plea bargain that required her to testify against a co-defendant. That co-defendant was then acquitted without Titlow’s testimony, and died. So Titlow’s half of the bargain can’t be fulfilled now no matter what – as Justice Ginsburg pointed out, the original bargain is simply not even available.) However, the Justices seemed to accept this second suggestion almost as a given, but noted that they have already said in Lafler that a state court need not accept a reoffered plea bargain in any case and so has wide-open discretion on remand. So, as to the ultimate remedy, “[a]ll of these arguments should be before that court, not us,” said Justice Sotomayor. While it seems likely that Justice Alito drove the grant of certiorari in this case, to make this very point as his Lafler dissent had stressed (no reoffer required in changed circumstances), it seemed like an easy non-issue at yesterday’s argument.
The bottom line is that the Court seems certain to be critical of the Sixth Circuit in this case, for its dicta as well as its ruling. Reversal of federal habeas relief also seems easy, b