Supreme Court Rules On Murder By Vodka And Pillow Case

November 8, 2013

The dry facts are that Vonlee Nicole Titlow was arrested for the murder of co-Defendant Billie Roger's husband. As part of a proposed plea bargain, Titlow's attorney negotiated a manslaughter plea in exchange for an agreement to testify against Billie Rogers (who was also Titlow's aunt). Three days before Billie Roger's trial, Titlow retained a new attorney, who sought to renegotiate the plea pursuant to a demand for a lower sentence in exchange for his client's testimony. Unwilling to agree to the new demands, the prosecutor withdrew the manslaughter plea and the trial proceeded. Billie Rogers was acquitted. Titlow was convicted of second-degree murder. Burt v. Titlow, 571 U. S. _ (US Supreme Court, Alito, November 5, 2013)

State Appeal

On appeal, Titlow blamed his conviction on ineffective assistance of counsel based upon an argument that the new counsel had not adequately considered the strength of the State's case before advising withdrawal of the manslaughter plea and opting for trial. The Michigan Court of Appeals rejected that argument basing its rationale upon a determination that the counsel's conduct was reasonable in light of Titlow's protestations of innocence and attendant factors.

Federal Case

The Federal District Court found that the State's ruling was reasonable and denied federal relief. The Sixth Circuit Federal Court of Appeals, however, reversed, finding that:

  1. the plea withdrawal was made because the State's original plea offer was higher than the State's sentencing guidelines' range; and 
  2. the record was devoid of evidence that counsel had adequately advised Titlow of the consequences of his plea withdrawal.

The Supreme Court

The United States Supreme Court reversed the Circuit Court and found that the record supported the Michigan Court of Appeals' factual finding that Titlow's counsel had advised withdrawal of the guilty plea in response to his client's  proclamation of innocence.

Bill Singer's Comment

That's the simplified essence of this criminal appeal case that found itself before the U.S. Supreme Court. The withdrawal of the manslaughter plea was not deemed to have been unreasonably. The fact that the outcome of that decision to go to trial was a conviction for murder was not the controlling factor -- the hindsight that might have persuaded the defendant to take the plea is simply an unfortunate circumstance.  The negative outcome did not, in and of itself, transform the withdrawal of the plea to the lesser charge as improperly obtained by Titlow's counsel.

More intriguing for me was the unusual fact pattern before the Court - not the stuff that one typically finds before the Supreme Court. To the contrary, this was a blood-and-guts murder case.  The fascinating aspect of this case was, in the end, its often riveting fact pattern. Also, the murder trial was filled with twists and turns, and the same topsy-turvey state of affairs occurred as the appeal progressed (during which time Billie Rogers died). Consider these portions of the Court's Opinion:

Respondent Titlow and Billie Rogers, respondent's aunt, murdered Billie's husband Don by pouring vodka down his throat and smothering him with a pillow. With help from attorney Richard Lustig, respondent reached an agreement with state prosecutors to testify against Billie, plead guilty to manslaughter, and receive a 7- to 15-year sentence. As confirmed at a plea hearing, Lustig reviewed the State's evidence with respondent "over a long period of time," and respondent understood that that evidence could support a conviction for first-degree murder. App. 43-44. The Michigan trial court approved the plea bargain.

Three days before Billie Rogers' trial was to commence, however, respondent retained a new lawyer, Frederick Toca. With Toca's help, respondent demanded a substantially lower minimum sentence (three years, instead of seven) in exchange for the agreement to plead guilty and testify. When the prosecutor refused to accede to the new demands, respondent withdrew the plea, acknowledging in open court the consequences of withdrawal (including reinstatement of the first-degree murder charge). Without respondent's critical testimony, Billie Rogers was acquitted, and later died.

Respondent subsequently stood trial. During the course of the trial, respondent denied any intent to harm Don Rogers or any knowledge, at the time respondent covered his mouth or poured vodka down his throat, that Billie intended to harm him. Indeed, respondent testified to attempting to prevent Billie from harming her husband. The jury, however, elected to believe respondent's previous out-of-court statements, which squarely demonstrated participation in the killing, and convicted respondent of second-degree murder. The trial court imposed a 20- to 40-year term of imprisonment.

. . .

On remand, the prosecution followed the Sixth Circuit's instructions and reoffered the plea agreement it had offered some 10 years before-even though, in light of Billie Rogers' acquittal and subsequent death, respondent was no longer able to deliver on the promises originally made to the prosecution. At the plea hearing, however, respondent balked, refusing to provide a factual basis for the plea which the court could accept. Respondent admitted to pouring vodka down Don Rogers' throat, but denied assisting in killing him or knowing that pouring vodka down his throat could lead to his death. As at trial, respondent testified to attempting to prevent Billie Rogers from harming her husband. Eventually, after conferring with current counsel (not Toca), respondent admitted to placing Don Rogers in danger by pouring vodka down his throat with the knowledge that his death could result. The trial court took the plea under advisement, where the matter stands at present. . .

. . .

Despite our conclusion that there was no factual or legal justification for overturning the state court's decision, we recognize that Toca's conduct in this litigation was far from exemplary. He may well have violated the rules of professional conduct by accepting respondent's publication rights as partial payment for his services, and he waited weeks before consulting respondent's first lawyer about the case. 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. See Mickens v. Taylor, 535 U. S. 162, 171(2002). Troubling as Toca's actions were, they were irrelevant to the narrow question that was before the Sixth Circuit: whether the state court reasonably determined that respondent was adequately advised before deciding to withdraw the guilty plea. Because the Michigan Court of Appeals' decision that respondent was so advised is reasonable and supported by the record, the Sixth Circuit's judgment is reversed. . .

READ the full-text Opinion