The Supreme Court Doesn't Necessarily Care If Your Lawyer Is Unethical

This morning, all nine justices revealed what they really think about the right to counsel.
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In a decision you aren't likely to read or hear much about, the United States Supreme Court this morning unanimously rejected a claim by a convicted murderer who argued that she was denied her Sixth Amendment right to the "effective assistance of counsel" because her lawyer counseled her to reject a manslaughter plea deal without first adequately investigating the facts of her case. 

To reach this result, all nine justices were willing to overturn a decision by the 6th U.S. Circuit Court of Appeals, which had concluded that the lawyer violated the constitutional rights of his client in part because the "record in this case contains no evidence that" he gave her adequate legal advice on whether to withdraw that manslaughter plea. Vonlee Nicole Titlow was instead tried, quickly convicted, and sentenced to 20-40 years in prison.

The ruling in Burt v. Titlow is rather short and worth reading in its entirety. From it you can glean that this defendant had several different opportunities to change her fate; in that respect, this is not the "typical" right-to-counsel case where a hapless defendant is pushed inexorably through a justice system designed to ensure a conviction. The client here, in other words, is not blameless for the result that has befallen her.

But I want to briefly highlight one component of the ruling for what it says about attorneys—since attorneys, after all, constitute the essence of the right to counsel. Buried near the end of the Court's opinion, written by Justice Samuel Alito, is the following passage that richly expresses the extent to which this Court is willing to go to sacrifice trial rights in the name of the finality of judgments. For ease of reference, the lawyer's name is "Toca":

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.

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 (citations omitted by me).

This is what the right to counsel has come to in America. Your lawyer may have violated ethical rules; he may have failed to timely consult with other attorneys; he may have not adequately investigated your case; he may have given you bad advice that leads you to withdraw a guilty plea. And yet the legal standards imposed by the Supreme Court declare that you still aren't entitled to any meaningful relief by the courts. In law school, they call this "a right without a remedy." In real life, it's called injustice. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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