Last week the U.S. Supreme Court decided the case of Burt v. Titlow.  Many hoped the Court would use the decision in Titlow to bring more definition to the Court’s 2012 decisions  in Lafler and Frye when they held that defendants have a right to effective assistance of counsel in plea bargaining.  Instead, in a 9-0 decision, the Court decided not to decide much at all.  The Court declined to use Titlow to further define effective assistance of counsel in plea bargaining although the defense lawyer’s conduct was “troubling” and “far from exemplary.” Historically the Court has rarely been too concerned with simple bad defense lawyering and quick to find “harmless error.”  This case is another unfortunate example of their hesitancy to insist on higher standards in our criminal justice system.  The Court instead stated that the 1996 Anti-Terrorism and Effective Death Penalty (AEPDA) amendments in federal habeas law and Strickland v. Washington “do not permit federal judges to so casually second-guess the decisions of their state-court colleagues.” 

Titlow did have messy facts and may not have been the ideal vehicle to use to further clarify much of anything.  For Rory K. Little’s nice analysis of the convoluted facts, before the decision, see here . 

After the Court’s decision, Professor Little, on scotusblog, stated that “Titlow suggests that [the Court] will be looking for direct review cases from the state and federal courts to clarify the law in this area, rather than through the foggy filter that federal habeas doctrine imposes.”

The challenge for those who want the Court to further define Lafler and Frye will be to bring on appeal cases that are more straightforward and less mired in obvious procedural barriers.    

To read the full opinion (all eleven pages), and the concurrences by Justices Sotomayor and Ginsberg see here .