If You Only Knew (36 page)

CHAPTER 88

IT WAS ALMOST TEN
years before any real action in Vonlee's case would come up again. In 2012, there was a man one afternoon scanning SCOTUSBLOG, reading stories and getting up to speed on what was happening in the nation's highest court. SCOTUS is an acronym for the Supreme Court of the United States.

The big,
big
leagues.

“Hey,” the man said to a coworker, Valerie Newman, “you aware of this?” He motioned for her to come over and have a look.

Newman nestled up to the computer screen. “What?” she asked.

“Check it out.”

Valerie Newman had been an attorney with the State Appellate Defender's Office (SADO) in Michigan for close to twenty years on the day she first heard about Vonlee's case when that colleague and friend pointed it out on SCOTUSBLOG. By then, Newman had argued hundreds of cases before appellate courts in Michigan, and one very high-profile case in the United States Supreme Court. As she read the post, she knew nothing about the details of Vonlee's case. What caught her attention was the legal issue at the center of it all, which was identical to an issue in a case she had argued before the U.S. Supreme Court.

“I thought that given my experience before the court on that same issue, the client, since she was unrepresented according to the court's docket sheet, might be interested in my representation,” she said later.

Between her sentence in 2002 and 2012, a decade later, Vonlee had been in and out of every appeals court the state of Michigan offered. The Sixth U.S. District Court of Appeals had recently ruled that the original sentence of seven to fifteen Vonlee had plea-bargained for with Richard Lustig “should be reoffered”—or that Vonlee should be released from prison with time served.

This didn't mean Vonlee was getting out of prison anytime soon; she still had one more hurdle to jump: the United States Supreme Court. Michigan solicitor general John Bursch was not going to take the Sixth Circuit Court's new decision without a fight. He now argued that the Sixth Circuit Court's decision was “wrong” and vowed to prove it at the highest level.

As Val Newman read about Vonlee's plight, a series of compelling facts emerged. In the interim (since Vonlee's conviction and subsequent appeals), Vonlee's second attorney, Frederick Toca, had been disbarred over two separate matters, each dating back to 2005. In the first matter:
[A] panel found that Toca's conviction of one felony and three misdemeanors, all relating to forgery of license documents and driving while [his] license [was] suspended, constituted misconduct,
wrote the State of Michigan Attorney Discipline Board. The second matter was even more egregious:
[Toca had] filed false evidence with trial and appellate courts in a personal injury matter,
the board concluded. The state of Michigan had disbarred Toca on January 27, 2010, revoking his license to practice law; this occurred after he had been suspended from practicing back in 2005.

Still, while Toca was punished for his behavior as a lawyer and stripped of his ability to practice law any longer, the appeals courts in Vonlee's case apparently did not see a correlation at all between Toca's prior behaviors and Vonlee's case. One revelation did not have anything to do with the other.

While working for the largest appellate office in the state of Michigan, Newman took a keen interest in Vonlee's story. She began to do a bit of research about Vonlee on her own. She was confounded by the notion that Vonlee essentially had lost all of her appeals, except that final one in the Sixth District, which had been subsequently accepted by the Supreme Court, which grants very few petitions submitted. In the years following her conviction, Vonlee had accused Toca of this charge:
ineffective assistance of counsel for allowing him to withdraw the original guilty plea.
But both the trial court and the Michigan Court of Appeals rejected Vonlee's assertion. And when she petitioned the Michigan Supreme Court to hear her case, it flat-out refused to do anything. From there, Vonlee was determined to see it through; and so she petitioned for “federal habeas corpus relief,” and it wasn't until that Sixth Circuit Court stepped in that something finally did happen in Vonlee's favor.

What struck Newman immediately was how the district court determined:
[Vonlee had] failed to meet the standard for overturning a state-court conviction under the Antiterrorism and Effective Death Penalty Act (AEDPA).
The Sixth Circuit Court then turned around:
[It] reversed the lower court's decision and ordered the state to reoffer [Vonlee's] original plea agreement.

Vonlee's case had all the earmarks of a legal hornet's nest someone had stuck his or her hand into long ago. It was a mess.

Although nothing had come of it, the decision by the Sixth Circuit Court seemed promising. It was a step in the right direction. And although the scorecard for Vonlee heading into this decision was 5 to 0, the Sixth Circuit Court reversing its decision
—[Vonlee's] second attorney was ineffective for failing to investigate his claims further, failing to obtain documents from the first attorney, and failing to convince [Vonlee] to take the plea bargain
—had now made it, in effect, 5 to 1.

Newman was concerned about the obvious ineffectiveness of counsel in Vonlee's case during the plea bargaining way back when. Newman had argued a pivotal case in front of the U.S. Supreme Court surrounding the same issue. On October 31, 2011, she stood before the Supreme Court justices as counsel in
Lafler
v.
Cooper
. On March 21, 2012, the Supreme Court ruled in her client's favor by a close 5–4 decision. The University of Michigan Law website wrote:
The
New York Times
cited the case as “being the most important right-to-counsel case since
Gideon
v.
Wainwright
, while legal rights groups and scholars alike cite it as one of the most important cases of that Supreme Court term.”

In Newman's
Lafler
v.
Cooper
case, the Supreme Court's argument was “brutal,” Newman later explained. Its decision, effectively, said that a defendant has the right to effective counsel in the plea-bargaining stage of the criminal process. This turned out to be a statement, Newman added, “That they had never made before explicitly.” Thus, that case, by itself, “extended the right of effective assistance of counsel into the plea-bargaining stage”—which was where Vonlee's case came into play.

“Ninety-seven percent of cases are settled by plea bargaining,” Newman said. “So my opinion was that if you don't protect defendants in the plea-bargaining stages, you are leaving ninety-seven percent of cases out of the rubric of the right to effective assistance of counsel.”

In
Lafler
v.
Cooper
, Justice Antonin Scalia said in his opinion the Supreme Court would be “constitutionaliz-ing plea bargaining” if it ruled in favor of Newman's client.

The
New York Times
billed the arguments as “faulty-lawyer cases,” reporter Adam Liptak wrote in his article. According to Liptak, the cases Newman argued
concern[ed] what should be done when criminal defendants pass up favorable plea bargains based on unprofessional work by their lawyers.

Valerie Newman and Vonlee Titlow were the perfect match.

After she read through the blog and did some additional research, Newman wrote down Vonlee's new attorney's name and number and decided to call her. Newman was willing to argue Vonlee's case for her in front of the U.S. Supreme Court.

“I did call her prior appellate attorney, too,” Newman explained later. “I did so because Vonlee had filed a response
pro per
in the Supreme Court, so I wanted to know who had represented her up to that point. It was a courtesy on my part to check in and double-check to verify that she was no longer representing Vonlee and see if she had any objection to my stepping in. I would never try to take a case away from someone.”

By that time, Vonlee Titlow had spent a decade and some change in prison. She didn't know it then, but there was one of the state's—hell, the country's!—most aggressive, able, competent, experienced and smartest appellate attorneys, with a winning track record in the U.S. Supreme Court already, looking at the possibility of arguing her case at the highest level in the nation.

CHAPTER 89

VALERIE NEWMAN HAD ACTUALLY
chosen environmental law as her major in law school. Arguing appeals in the local courts and going to Washington, DC, to spar with the “holiest of holies” was never on her early agenda book. With the environment, there was something about the world, Newman later said, about how we are all connected to the universe and how the environment is our responsibility that pushed her, at a young age, in that direction.

“Mine was a hybrid degree, business and other things, you could say,” she explained later. “I came out of college with a lot of debt, so I didn't want to go to any kind of grad school, but instead, I opted to pay down my debt.”

“Bouncing around” in corporate retail jobs for a while, she “decided to take the LSAT,” the Law School Admission Test.

That was 1987.

She entered law school two years later, in 1989, and discovered her passion.

The environmental-law decision she had first desired turned out to be “too statutory and not too exciting.” Newman yearned for the thrill of challenging cases, digging into the research and banging heads in a courtroom with other lawyers and judges. She could envision herself fighting for people's rights.

In law school, when she wrote up a mock oral argument, a professor told her she had a gift for advocacy and argument. “You should think about becoming an appellate lawyer,” that same professor advised.

“I had never thought about it,” she said. “I had always assumed I'd be in trial court.”

During law school, she worked at the Legal Aid Society in Staten Island, New York, its criminal division. It was a “life-changing” experience, she noted.

“I got the criminal-law bug,” she said. She saw how people were treated and mistreated and decided to pursue the appellate field, which her professor had recommended.

Finally, after all was said and done, she settled into work at SADO. She had found her calling.

“It was where I wanted to be.”

Val Newman has a calm, affecting, soothing tone to her voice. She pauses frequently in between thoughts; and from that, it's clear she thinks about what she says before saying it, something many in the Digital Age have a hard time doing. Likely, this characteristic stems from the amount of time she spends reading through cases that SADO takes on. To appeal a case, one has to know it inside out. One does that by studying every piece of documentation available and also talking to as many of the players involved as one can. In short, appellate lawyers devote days and weeks to reading and taking notes.

Newman knew nothing about Vonlee's case before that coworker pointed it out on the SCOTUS blog. She had not heard the salacious news reports and crass online comments regarding the transsexual who had “murdered” her aunt's husband to get money for a sex change. For Newman, she viewed the case like any other: a defendant wronged by a lawyer and the system, someone who needed guidance and advocacy. It was clear to Newman that Frederick Toca had ruined any chance of Vonlee getting the sentence she deserved. Newman's job wasn't about proving innocence or guilt; it was about righting a wrong.

At home, trial transcripts and other documents scattered around her living room, Newman was looking for the opportunity in Vonlee's case where she could argue to the court that Vonlee had not been given a fair shake by Toca. Most people assume that once a court has stamped its approval of a jury's verdict, it must be just and that the guilty party has been punished properly and it's time to throw away the key and move on.

That was not how she operated—not in those cases where she saw misconduct.

Over the course of twenty years or so, she had worked her way up through the ranks to become one of the go-to appellate lawyers for the state of Michigan on the highest level. She knew her way around the appellate laws better than most and had become somewhat of a high-profile lawyer within that particular field.

When she finished studying Vonlee's case, she saw it as a “no-brainer.” There was “deficient performance of counsel” and “prejudice.”

No doubt.

But the question remained: could she get at least five Supreme Court justices to agree with her?

“We clearly had deficient performance in Vonlee's case, because we had an attorney who had misadvised a client who didn't understand the law,” Newman believed, “and we clearly had prejudice because had [Vonlee] accepted the plea, [she] would have been doing, at the most, eighty-four months, and after trial [she] was serving 185 months on the minimum sentence.” (That number included time served and good behavior.)

Every time Newman looked at Vonlee's case, she could only come to one conclusion.

“This was a very tough case factually because there was no record of what Toca actually did in the five days or so he was on the case prior to moving for plea withdrawal. I never thought this case was a hands-down winner.”

CHAPTER 90

VALERIE NEWMAN SPOKE TO
Vonlee's attorney after realizing Vonlee's case was identical in so many ways to
Lafler
v.
Cooper
—thus, if there was anyone in the country that should be arguing Vonlee's case in the U.S. Supreme Court, it was Val Newman.

The case seemed so simple on paper: bad advice, prejudice, remedy.

And what was that remedy?

“Reoffering the plea bargain,” she concluded.

The only wrinkle in it all, as far as Newman could tell, was that Vonlee had agreed to testify against Billie Jean, withdrew that and did not testify. At trial, Billie Jean was found not guilty. So there was no chance of Vonlee ever offering that part of her plea bargain again.

Newman was “not eager to go back to the Supreme Court” and argue a case. “It's an incredible amount of work. In
Lafler
v.
Cooper
, it was my case from day one.” Here, she would have to step in at the end of the road, essentially, and take over. She had been with
Lafler
v.
Cooper
, litigating it, for eight years. “To pick up a case at the point where Vonlee's was is an enormous undertaking.”

The flip side of it all, however, Newman considered that if Vonlee's case was “going to be an attack on
Lafler
v.
Cooper
,” she definitely wanted to handle it and defend her previous work.

Vonlee was being approached by a lot of different lawyers at the time. There was one particular lawyer who had gone in to see Vonlee and allegedly lied about being part of the team behind
Lafler
v.
Cooper
, and yet this attorney had “zero involvement in that case,” said a source. So it appeared that Vonlee was heading back where she'd started: a lawyer promising something he could not deliver.

After “hemming and hawing,” or, rather, weighing the pros and cons, Newman met with Vonlee. They sat and talked for a very long time. She took down a lot of information and studied Vonlee, who came across nervous, needy and overwhelmed. This was her final chance. Either she won in the Supreme Court, or she served out the remainder of a twenty-year to forty-year sentence.

At the end of that meeting, Newman said, “Look, you can do whatever you want, obviously, but if you want, my office will represent you.”

It was free and Newman was one-for-one in the Supreme Court.

“I saw a clear-cut case of ineffective assistance of counsel and, even worse, maybe malpractice. What Toca did was so despicable, it's hard to describe on every level.”

Vonlee did not have to think too hard about what she wanted to do.