Revisiting the Doubly Deferential Standard of Review and the Problem with the Strickland Standard

The United States Supreme Court rather swiftyly reversed the Sixth Circuit in its Burt v. Titlow decision exploring effective assistance of counsel during plea negotiations.  Justice Alito wrote the opinion for the Court in Titlow. Justice Sotomayor filed a concurring opinion, and Justice Ginsburg concurred in the judgment.

Justice  Alito’s opinion begins,

When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys, the Sixth Circuit’s decision must be reversed.

Both Justice Ginsburg and Justice Sotomayor have written their own opinions in Burt v. Titlow in order to articulate their views of what the Court’s opinion does not mean. Justice Sotomayor who at one point in her career was a trial judge wrote:

In my view, this case turns on Vonlee Titlow’s failure to present enough evidence of what Frederick Toca did or did not do in the handful of days after she hired him and before she withdrew her plea. As our opinion notes, she bore the burden of overcoming two presumptions: that Toca performed effectively and that the state court ruled correctly. She failed to carry this burden. We need not say more, and indeed we do not say more. I therefore join the Court’s opinion in full. I write separately, however, to express my understanding of our opinion’s limited scope, particularly with respect to two statements that it makes about the adequacy of Toca’s performance.

First, we state that “[a]lthough a defendant’s proclamation of innocence does not relieve counsel of his normal responsibilities under Strickland, it may affect the advice counsel gives.” Ante, at 8. The first part of that statement bears emphasis: Regardless of whether a defendant asserts her innocence (or admits her guilt), her counsel must “make an independent examination of the facts, circumstances, pleadings and laws involved and then . . . offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U. S. 708, 721 (1948) (plurality opinion). A defendant possesses “ ‘the ultimate authority’ ” to determine her plea.   Florida v. Nixon, 543 U. S. 175, 187 (2004). But a lawyer must abide by his client’s decision in this respect only after having provided the client with competent and fully informed advice, including an analysis of the risks that the client would face in proceeding to trial. Given our recognition that “a defendant’s proclamation  of innocence does not relieve counsel of his normal responsibilities,” ante, at 8, our further observation that such a proclamation “may affect the advice counsel gives,” ibid., states only the obvious: that a lawyer’s advice will always reflect the objectives of the representation, as determined by the adequately informed client.

The Court’s decision and Justice Sotomeyer’s concurrence highlight the weaknesses of the Strickland v. Washington standard for evaluating ineffective assistance of counsel claims.  Nothing better illustrates those weaknesses than this part of Justice Alito’s opinion, “[Counsel] may well have violated the rules of professional conduct… 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.”

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