Because the jury decided that Vonlee was guilty of the “second most serious offense,” the judge was imposing a sentence that reflected that verdict, she explained.
Potts was “clear” the crime had been committed “for greed . . . and the actions after death did not show remorse from any of the people participating. . . .” It was the cars and jewelry and gambling and “going out to dinners” that spoke of a certain coldness to the judge. Those luxuries showed a tremendous lack of care for the deceased. It seemed Don was dead and nobody gave a damn—with the exception of his daughters and family members and friends and business colleagues.
After a few more words regarding court matters, Judge Potts cleared her throat and gave Vonlee Nicole Titlow “twenty to forty years” in prison, with credit for 462 days she had already served. If the verdict had been a crushing blow, this sentence was the drop of a guillotine on that hopeful head, lapping it clean off.
The sentence took Vonlee’s breath away. She was devastated. The low end was thirteen more years than she had been offered initially; the high end twenty-five more than she would have ever served.
Twenty to forty.
And that was it. Court ended. Vonlee was handcuffed and taken away as she sobbed quietly and felt a twisting in her stomach.
Twenty to forty.
She thought it, again and again.
Vonlee was closing in on thirty-five years—which meant the possibility of parole in twenty, putting Vonlee at fifty-five years old, which felt like a lifetime.
CHAPTER 87
JUSTICE CAN SOMETIMES BE a slow-going, agitating movement of civic gears, like perhaps a water wheel keeping time by the running of a whispering mountain stream that sometimes runs dry, cramming up the components. [Justice is the] first virtue of societal institutions, as truth is of systems of thought, John Rawls wrote in his sprawling book, his magnum opus, A Theory of Justice. [J]ustice denies that the loss of freedom for some, Rawls goes on to say in an enlightening manner, is made right by a greater good shared by others.
It is a critical statement and yet quite factual within the crux of the role justice plays in society: human nature at its absolute narcissistic core. We judge, therefore, not to be judged, but to continue feeling good about ourselves.
[A]nalogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice, Rawls concludes.
To obtain true impartiality within the boundaries of a court of law, without the critical biases of witnesses and the seemingly uncritical bias surrounding the burden of proof, can take years. And for some, well, the truth never comes to light. For the inmate who believes he or she has been wrongly convicted—or, in the case of Vonlee Titlow, sentenced—those years can become an eternity. The soul can be torn apart by the time Lady Justice arrives with her scales in check. Thus, for Vonlee, the scorecard read, Justice: 1, Vonlee: 0.
Still, there was no way Vonlee Titlow was going to take the twenty-to-forty sentence lying down—or, rather, sitting back in her steel bunk on a smelly inch-thick mattress chalking off the days and months and years with stick figures on a concrete wall. This sort of tossing in the white towel wasn’t Vonlee’s style. Perhaps it once was—whereby she would rather walk away from adversity than face it. Sure, Vonlee might have made her own bed, but she believed that the involvement of Frederick Toca had disrupted her destiny and she could not allow that to end by her bearing the brunt of it all.
Billie Jean Rogers was free; Vonlee sat in prison.
“Unfair,” Vonlee kept telling anyone who would listen.
In May 2002, nearly a month after Vonlee had been sentenced, Billie Jean lost her battle with cancer and died. If there was anyone that believed Billie Jean had not suffered, or the emotional and physical demands of her case did not contribute to her years being shorter on the planet, those people had never read about the sustained torturous toll that stress takes on the body and mind, not to mention the human spirit.
When Vonlee heard about her aunt’s death, she cried. She was sad and upset. Death was not part of her plan for her aunt Billie Jean. She loved Billie Jean, despite all they had been through and all she would endure in the years to come.
According to Vonlee, for some in the family back home in Tennessee, Billie Jean had an inherent “evilness” about her that only those close enough to her could see, feel and understand.
And so the seesaw of emotions and feelings for her aunt continued: One minute, Vonlee loved the woman, said how much she adored her and that Billie Jean knew not what she did, but took what she felt was the easiest road. In the next moment, there was Billie Jean filling the role as tyrant, a seductress whose mainstay in life was money and gambling and drinking and deception.
By the end of 2002, Vonlee had made good on her promise and filed a civil suit against the man who she claimed had steered her wrong at a vulnerable stage of her case. Affidavits and depositions were being taken in Vonlee Titlow vs. Frederick Toca and [the guard who had introduced Vonlee to Toca].
They spent years battling out the malpractice suit Vonlee had brought against Toca.
The bench trial was heard in the Circuit Court for the County of Oakland, the Honorable Steven Andrews presiding. Vonlee represented herself. Toca had the law offices of Cyril C. Hall in Pontiac, Michigan, there on his behalf.
Finally, after all was said and done, years had passed and Judge Andrews, taking his time to decide on an outcome, submitted his thirteen-page decision on October 29, 2004.
Vonlee alleged malpractice, malfeasance, breach of contract and failure to uphold fiduciary responsibility in light of what Toca had done. These were hefty accusations against the lawyer. Vonlee was saying that because of Toca, she had been given a harsher sentence and effectively forced into trial. Vonlee had even alleged, Andrews wrote in his decision: [It is]default judgment against [the guard], which the Court granted based on [the guard’s] failure to appear or otherwise defend.
Andrews outlined the entire case, making a point that Vonlee had passed a polygraph. He said Vonlee accused Toca of convincing her to “withdraw” her plea: Plaintiff maintains that Defendant Toca said that if he did not think they . . . could win, he would not be there, and that they (his firm) did not take cases unless they thought they could win them.
Bottom line concerning Toca, Andrews opined: [He] denies that he advised Plaintiff to withdraw the manslaughter plea. . . .
He said.
She said.
In the end, Andrews agreed that this was a “troubling case.” However, he went on to write, [The] Plaintiff claimed innocence and was unhappy with the 7-15 sentence for the manslaughter charge.... These were the factors that the Plaintiff elected to withdraw the plea and go to trial. The bottom line is that [the] Plaintiff chose to proceed this way and must accept the result of that choice.
Judge Andrews finally concluded, [A] judgment of No Cause Action be entered in Plaintiff’s claims.
Justice: 2.
Vonlee Titlow: 0.
Though, it still wasn’t over for Vonlee Titlow.
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 Supr
eme 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.” New
man 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.
If You Only Knew Page 34