March 01, 2013

U.S. Supreme Court to Hear Cases on Fifth and Sixth Amendment Rights during the 2013-14 Term

On February 25, 2013, the U.S. Supreme Court granted certiorari in two cases that have the potential to impact death row prisoners across the country. The first case, Kansas v. Cheever, concerns the actions available to prosecutors when criminal defendants claim to lack mental competence to commit a crime. The second case, Burt v. Titlow, is a follow-up to Lafler v. Cooper and Missouri v. Frye, two significant cases from the Court's 2011 Term that expanded the Sixth Amendment right to counsel to include plea bargaining. The prisoners challenging their cases each prevailed in the lower courts. Both cases will be argued and decided in the Court's 2013 Term, which will begin in October.

Kansas v. Cheever, No. 12-609—Privilege Against Self-Incrimination

The Court granted certiorari in Kansas v. Cheever to review a decision by the Kansas Supreme Court overturning the conviction and death sentence of Scott Cheever. Mr. Cheever was convicted of killing a law enforcement officer and charged initially in federal court and subsequently in state court. In his federal case, Mr. Cheever argued that his drug use made it impossible for him to have killed with the requisite premeditation to support a capital murder conviction, and the federal court ordered a mental health evaluation. The federal charges were later dropped. At the state trial, Mr. Cheever testified that he had killed the officer but was under the influence of methamphetamines at the time. He presented the expert testimony of a psychiatric pharmacist to support his defense. In response, the prosecution used the statements Mr. Cheever made during his federal court-ordered mental health evaluation to rebut his claim of incapacity. The jury found Mr. Cheever guilty and sentenced him to death for capital murder.

The Kansas Supreme Court determined that the State's use of Mr. Cheever's statements violated his Fifth Amendment privilege against self-incrimination. It reasoned that statements made in a court-ordered mental health evaluation may only be used against the defendant if he raises a defense based on a mental disease or defect. In this case, the Kansas Supreme Court held that Mr. Cheever's defense of "voluntary intoxication" was not equivalent to a claim of "mental disease or defect" as defined by the Kansas statute and therefore would not have justified a court-ordered mental examination. The State appealed this decision to the U.S. Supreme Court, which will examine whether statements made under these circumstances are protected by the Fifth Amendment privilege against self-incrimination.

Burt v. Titlow, No. 12414 – Ineffective Assistance of Counsel

In Burt v. Titlow, the Court granted certiorari to clarify the scope of its decisions last term in Lafler v. Cooper and Missouri v. Frye that extended the right to effective assistance of counsel to include plea bargaining. In those cases, the Court set forth the factors for determining whether defendants had been prejudiced by counsel's ineffectiveness but left open the question of what proof is required.

In 2001, Vonlee Titlow1 was arrested on first-degree murder charges for conspiring with her aunt to kill her wealthy uncle in an attempt to inherit his estate. Ms. Titlow's counsel negotiated a plea agreement in which the State agreed to reduce Ms. Titlow's charges to manslaughter with a prison term of seven to 15 years in exchange for testifying against her aunt. In October 2001, the state trial court accepted the plea agreement and scheduled a sentencing hearing for December 2001.

Before her sentencing hearing, however, Ms. Titlow spoke with a sheriff's deputy who advised her to plead not guilty if she believed that she was innocent. The sheriff's deputy assisted Ms. Titlow with locating a second defense attorney, who agreed to represent her and file a motion to withdraw the guilty plea, which was granted on November 29, 2001. Shortly thereafter, Ms. Titlow's second attorney withdrew as counsel due to financial constraints, and a new attorney was appointed by the court to represent Ms. Titlow at her March 2002 trial. A Michigan jury convicted Ms. Titlow of second-degree murder, and she was sentenced to a 20- to 40-year prison term. On appeal, Ms. Titlow claimed that her second lawyer provided ineffective assistance of counsel when he advised her to withdraw the guilty plea and proceed to trial.

On direct appeal, the Michigan Court of Appeals rejected Ms. Titlow's argument that her attorney's advice to withdraw the plea fell below an objective standard of reasonableness, stating that when a "defendant proclaims . . . innocence, however, it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty." The U.S. Court of Appeals for the Sixth Circuit disagreed, finding that counsel’s advice to withdraw the guilty plea was the result of ineffective assistance of counsel. The court concluded that the Michigan Court of Appeals "unreasonably determined the facts in light of the evidence presented" because the court relied upon defense counsel’s statements made during the motion to withdraw Ms. Titlow's plea—which made no mention of Ms. Titlow's innocence claims—and noted that counsel failed to fully or timely investigate Ms. Titlow's case or discuss it with prior counsel until after the plea had been withdrawn. In accordance with Lafler, the court then ordered the State to reoffer the plea Ms. Titlow had previously accepted and withdrawn.

Although the Supreme Court granted certiorari on all three questions presented in the State's petition, the key issue is what proof must be offered to show that the defendant would have accepted the plea deal but for counsel's ineffective assistance. The other two questions include whether the Sixth Circuit gave appropriate deference to the state court decision under the Anti-Terrorism and Effective Death Penalty Act and whether Lafler requires a state trial court to resentence a defendant who shows a reasonable probability that she would have accepted a plea offer but for ineffective assistance.


[1] Vonlee Titlow is a transgendered woman who is housed in an all-male prison facility, and the ABA Death Penalty Representation Project accordingly uses female pronouns to refer to her. The court opinions use a combination of male and female pronouns.