Burt v. Titlow,
571 U.S. ___ (2013)

Annotate this Case



No. 12–414



on writ of certiorari to the united states court of appeals for the sixth circuit

[November 5, 2013]

     Justice Ginsburg, concurring in the judgment.

     While I join the Court’s judgment, I find dubious the Michigan Court of Appeals’ conclusion that Toca acted reasonably in light of Titlow’s protestations of innocence. Toca became Titlow’s counsel on the recommendation of the deputy sheriff to whom Titlow professed innocence. App. 298. As the Court rightly observes, Toca’s conduct was “far from exemplary.” Ante, at 10. With virtually no time to make an assessment of Titlow’s chances of prevailing at trial, and without consulting the lawyer who had negotiated Titlow’s plea, Toca told Titlow he could take the case to trial and win. App. 295 (Titlow’s uncontra- dicted averment). With Toca’s aid, Titlow’s plea was with- drawn just three days after Toca’s retention as defense counsel. At sentencing, the prosecutor volunteered that Titlow had been the “victim of some bad advice.” Id., at 291.

     Nevertheless, one thing is crystal clear. The prosecutor’s agreement to the plea bargain hinged entirely on Titlow’s willingness to testify at her aunt’s trial. See App. 42–43, 45. Once Titlow reneged on that half of the deal, the bargain failed. Absent an extant bargain, there was nothing to renew. See Puckett v. United States, 556 U. S. 129, 137 (2009) (“Although the analogy may not hold in all respects, plea bargains are essentially contracts. . . . [W]hen one of the exchanged promises is not kept . . . we say that the contract was broken.”); Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1953 (1992) (“When defendants promise to plead guilty in return for government concessions and then do so, they are legally entitled to the concessions. At the same time, if the defendant fails to perform, the prosecutor need not perform either.” (footnote omitted)). In short, the prosecutor could not be ordered to “renew” a plea proposal never offered in the first place. With the plea offer no longer alive, Titlow was convicted after a trial free from reversible error. See App. 295. For these reasons, I join the Court’s judgment.

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