Burt v. Titlow (12-414)

argument 12-414

Burt v. Titlow

Supreme Court of the United States 59 min 6 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the opening argument and who are the parties in Burt v. Titlow?

John G. Roberts 0:02

We'll hear argument next in case twelve four four four four four four four fourteen, Burt uh versus Titlow. Mr. Birsch?

Mark D. Birsch 0:08

Thank you, Mr Chief Justice, and may it please the court. No court has ever held that EDPA and Strickland can be satisfied by presumption based on a silent record. Yet that is precisely the approach the Sixth Circuit adopted in granting habeas relief here. The record doesn't say how Attorney Toka investigated or what advice Attorney Toka gave. Um but based on that record silence, the Sixth Circuit assumed TOCO was ineffective. And under EDPA and Strickland, the presumptions run the opposite way. Now if there's one thing that the court takes away from the oral argument this morning, I hope that it's it's this. How upside down the Sixth Circuit's analysis is when it says on page nineteen A of the petition appendix, that Toka was deficient because the record contains no evidence that he advised Titlow about elements, evidence, or sentencing exposure.

Mark D. Birsch 0:57

The correct question is whether the record contains evidence that Toka did not do those things, and that record silence is dispositive in favor of the state on habeas review. Now if we could pull the curtain back and see what really happened here, it may be the case that TOCA gave the proper advice, that he re uh advised Titlow about all the perils of going to trial, and that Titlo continued to maintain her innocence. Under Strickland, we're supposed to presume that Toka did exactly that, especially when it's Titlo's burden to satisfy the burden of proof and she failed to do that. So I'd like to begin with our first issue, which is EDPA deference and the performance prong of Strickland.

Ruth Bader Ginsburg 1:35

May I just ask a question about what you just said. I mean the record does show that uh this toca came into the case very late in the day. If yes. to have uh a postponement because he said I have to get up to speed. I don't know anything about this case. So Toka himself is saying, I'm not acquainted with the ca with the case.

Mark D. Birsch 1:59

Well I I don't think he's he's saying that, Justice Ginsburg. He's saying I'm not prepared for trial yet. But he says, I've got a lot of materials here. Um he goes through a very sophisticated sentencing analysis with the the sentencing court in this plea withdrawal hearing. Um if you understand Michigan sentencing, if you've got a manslaughter charge, there's a grid. And there's all kinds of different boxes that this could have fit into. And he would have had to have analyzed the evidence in order to determine that the two to five range was appropriate for a manslaughter uh conviction and to be able to then negotiate with the prosecutor about whether that was or was not appropriate. And so we know that that Toka did a lot of work.

Samuel A. Alito 2:34

Was the sentence that was ultimately imposed after the trial for the second degree murder conviction within the guidelines, within the Michigan guidelines?

Mark D. Birsch 2:43

Yes it was. Um I don't recall but it it's something on the range of uh fifteen to twenty years. Um and and when we're talking about guidelines, it's important for the court to understand the difference between what the guidelines called for for manslaughter and what was in the plea agreement, because uh Michigan's got this indeterminate sentencing system where you've got a range for the lower end. And so the plea deal was seven to fifteen years on the lower end, and a manslaughter conviction that is, if they had gone to trial and lost for manslaughter, that lower end was two years to five years. So it was entirely reasonable from an objective perspective for an attorney looking at this record at the time the plea was withdrawn to say, yes, if you want to maintain your innocence, the most likely bad result at trial is most likely better than the plea deal that you already have.

Mark D. Birsch 3:30

Sure, there's a risk that something worse could happen, but this court has said in Strickland and Laffler and other places that bad predictions are not deficient performance. And so, really, when you get down to it, it's really a A problem with Um both the advice being reasonable, but also the failure to carry the burden of proof.