Category Archives: Right to Counsel

Right to Perfect Counsel or Merely Effective Counsel: A Discussion of Burt v. Titlow

Right to Perfect Counsel or Merely Effective Counsel: A Discussion of Burt v. Titlow

By Erika Rucker


Under the Sixth Amendment to the United States Constitution, a criminal defendant is guaranteed effective assistance of legal counsel.[1] 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.[2]


In Burt v. Tidlow, the respondent, along with his aunt, allegedly murdered a man by pouring vodka down the victim’s throat and smothering the victim with a pillow.[3] Prior to trial, the respondent reached an agreement with the prosecutor and agreed to testify against his aunt in exchange for a guilty plea of manslaughter and a minimum sentence of 7-15 years.[4]

Prior to the respondent’s aunt’s trial was to commence, the respondent obtained alternate legal counsel. At the request of the respondent’s new attorney, the respondent demanded a lower minimum sentence in exchange for his testimony. The prosecutor refused to accept the respondent’s new plea agreement and the respondent withdrew his  initial plea. By withdrawing his original guilty plea, the respondent’s first degree murder charge was reinstated.[5]

At trial, respondent was convicted of second-degree murder and was sentenced to a twenty to forty year term prison sentence.[6] On direct appeal, respondent argued that his subsequent legal counsel, who advised him to withdraw his original plea agreement, was ineffective.[7] The respondent argued that his attorney did not take the time to learn more about the case which would reveal the strength of the state’s case against his client.[8]

The Court of Appeals rejected the respondent’s claim that his counsel was ineffective. The Court of Appeals held that the respondent’s counsel acted reasonably in light of the fact that the respondent proclaimed innocence. The Court utilized an objective standard of reasonableness and concluded that “[w]hen a defendant proclaims . . . innocence . . ., it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty—no matter how ‘good’ the deal may appear.” [9]

Upon review by the Sixth Circuit, the judgment was reversed. The Sixth Circuit stated “[t]he record in this case contains no evidence” that [the attorney] fully informed respondent of the possible consequences of withdrawing the guilty plea, the Sixth Circuit held that the attorney rendered ineffective assistance of counsel that resulted in respondent’s loss of the benefit of the plea bargain.[10] The Sixth Circuit remanded the case with instructions that the prosecution must reoffer the respondent the original plea agreement.[11]

Ultimately, the Supreme Court found that the legal counsel given to the respondent was effective. The Supreme Court held that respondent was reasonably advised by his attorney prior to withdrawing his initial plea agreement.[12]

The Supreme Court has stated that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,”[13] and that the burden to “show that counsel’s performance was deficient” rests squarely on the defendant.[14]


Although legal counsel may not be perfect, the client is not entitled to have perfect counsel. Instead, a client is entitled to effective legal counsel. Additionally, an attorney’s violation of ethical norms does not render the attorney’s counsel ineffective per se.[15] While a client may not agree with their attorney’s legal strategy during the course of representation, this does not deem the attorney to be ineffective assistance of counsel.

While the decision reached in Burt  v. Tidlow does not stray from the legal norms which are squarely in place, the decision does reiterate the high threshold that a criminal client claiming ineffective assistance of counsel must overcome. Furthermore, the decision focuses narrowly on the legal assistance given during the plea bargaining stage. It is at this stage of litigation that effective legal counsel can be the most crucial because the majority of cases are not fully litigated to trial.

Burt v. Titlow clarifies that the presumption that counsel will presumed to be adequate and the  burden to rebut this presumption rests with the defendant stands firmly, especially in the plea bargaining stage of criminal trials

[1] U.S. Const., amend. XI.

[2] Cullen v. Pinholster, 563 U. S. ___, ___, 131 S. Ct. 1388 (2011) (slip op., at 17).

[3] Burt v. Titlow, 2013 U.S. LEXIS 8039, 6 (U.S. Nov. 5, 2013)

[4] Id.

[5] Id.

[6] Id. at 7.

[7] Id. at 8.

[8] Id.

[9] App. to Pet. for Cert. 102a.

[10] Id., at 589-592.

[11] Burt, supra note 2, 10.

[12] Id.

[13] Strickland v. Washington, 466 U. S., at 690 (1984).

[14] Id., at 687.

[15] Mickens v. Taylor, 535 U. S. 162, 171 (2002).

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