If You Only Knew

by M. William Phelps

  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.

  CHAPTER 91

  ON AUGUST 15, 2012, Newman filed her brief with the U.S. Supreme Court on Vonlee’s behalf. This set off a host of filings and responses from the court that went on and on, for months and months. Her argument was detailed. It covered every single beat of Vonlee’s case, leaving nothing out. One of the most telling pieces of factual information she presented: In an affidavit, Ms. Titlow’s first attorney, Richard Lustig, stated that “Mr. Toca did not pick up the discovery materials from [Lustig’s] office, nor discuss the facts of the case with [Lustig] until January 10, 2002.” This meeting was months after Vonlee had withdrawn her plea-bargaining agreement from the court.

  Newman said Toca “recklessly advised [Vonlee] to withdraw a favorable plea and proceed to trial where she faced a possible life without parole.”

  The Supreme Court argument was set in front of the Supreme Court justices for Tuesday, October 8, 2013, those seemingly stagnant wheels of justice once again moving with the mountain stream.

  “At its core,” the attorney explained, the argument she presented focused on whether Frederick Toca’s performance was “deficient, and if so, did the deficient performance prejudice Vonlee?”

  In Newman’s and Vonlee’s opinions, Toca had failed to investigate Vonlee’s case and thus “talked her out of a favorable plea deal and into a trial that was unwinnable.”

  All for a chance to sell her story to Hollywood!

  The battle here for Newman was that the record—all of the previous appeals and Vonlee’s original court cases—did not reflect that argument in a carefully detailed manner. This was the reason why she had been so focused on studying the record; she was trying to find that one piece of it she could use to Vonlee’s advantage.

  What’s more, the prosecutor claimed “no deficient performance because,” you guessed it, “there was no record as to what Toca did or did not do.”

  As Newman argued before the justices, the prosecutor was correct, she said, since “a precise factual record does not exist. However, Toca was disbarred due to a myriad of ethical violations so serious that his ethical violations in this case were merely a footnote. . . .”

  The other part of it working in Vonlee’s favor was that the timing of Toca’s involvement was never in dispute. He had not spoken to or obtained the trial counsel’s files until well after Vonlee withdrew her plea. That alone was effectively enough to seal Vonlee’s fate.

  “And, perhaps most telling,” she went on to argue, “he tried to renegotiate the sentence deal prior to her plea withdrawal, and only when that was unsuccessful did he state that Vonlee would not testify against Billie. And so the prosecution withdrew its deal.”

  Luckily, for Newman and Vonlee, that final part had all been done on the record.

  A decision came in about a month later, on November 5, 2013.

  Justice Sonia Sotomayor’s written concurrence did a fair job of explaining the justices’ collective opinion: In my view, this case turns on Vonlee Titlow’s failure to present enough evidence of what Frederick Toca did or did not do in the handful of days after she hired him and before she withdrew her plea. This had been Val Newman’s exact concern from the get-go: not enough record to reflect Vonlee’s argument. As our opinion notes, Sotomayor added, she bore the burden of overcoming two presumptions: that Toca performed effectively and that the state court ruled correctly. She failed to carry this burden. We need not say more, and indeed we do not say more.... Had respondent made a better factual record—had she actually shown, for example, that Toca failed to educate himself about the case before recommending that she withdraw her plea—then she could well have prevailed.

  Vonlee had lost. All of the justices agreed.

  Nine to zip.

  “We woul
d have won, had the record been better developed to support the argument,” Newman explained later. “Of course, I was not the lawyer until the U.S. Supreme Court, and she had gone through various lawyers throughout the appeal. There could be legitimate reasons why the record below was left undeveloped, but there was nothing I could do about that insurmountable problem by the time I got into the case.”

  One had to consider if Newman’s prior win (Lafler v. Cooper) in this same house of justices had worked against her. Was that a possibility?

  “I don’t think the prior case worked against us at all. This was a tough case because of the condition precedent in the plea—Vonlee having to testify against Billie—and that condition being nonexistent as this case wound its way through the appellate courts.”

  Another issue that hurt Vonlee was Billie Jean’s acquittal.

  “Most folks assumed criminal agency in Donald’s death,” Newman concluded. “Despite the medical examiner’s testimony at Vonlee’s trial, I’m not entirely convinced that Donald died from any criminal activity. It’s possible, but to me it is just as likely he died of natural causes. I think that is why Billie was acquitted—cause of death unclear and portraying Vonlee as a nutcase not to be believed.”

  What’s interesting and strikes perhaps at the heart of Vonlee’s case in its totality is the fact that the United States Supreme Court was willing to say that Frederick Toca was unethical and that he unequivocally behaved in an unethical manner, but that alone was not enough.

  Final score: Justice 8, Vonlee 1.

  It was over.

  Exhausting all of her appeals, Vonlee Nicole Titlow would continue to serve her sentence and be eligible for parole in 2021, the earliest she could possibly be released. The maximum date of her release is 2041. Vonlee would be seventy-four years old if she served her entire sentence.

  “I think Vonlee is likely to be paroled at her earliest release date,” Valerie Newman concluded. “Even assuming the worst about her actions, she did not kill Don Rogers or do anything that actually contributed to his death. I think Billie would have done what she did with or without Vonlee.”

  ACKNOWLEDGMENTS

  THERE IS NO EPILOGUE to this book because there is no more story to tell. A crime story that began with a death in 2000 ended thirteen years later in 2013 in the U.S. Supreme Court. Vonlee awaits her first parole hearing in 2021 so she can argue to be released. Based on the mishandling of her case by Fred Toca, something tells me it just might happen. But who knows?

  I dedicated this book to Cherry, my black Lab. She died while I was working on the book and the loss was more devastating than I could have ever imagined. Funny that an animal could bring so much joy, love and goodness into my life. I understood, in those empty days after Cherry’s death, what writers such as Dean Koontz have gone through dealing with a similar loss. I miss Cherry immensely. I want to thank Cherry (wherever she is) for all those years of unconditional love she gave to me and my family.

  I received an e-mail one night from a friend, Dave Lane, a producer for a Jupiter Entertainment series on Oxygen, Snapped. Dave and I go back a number of years. We look out for each other when it comes to great true-crime stories. If any of my longtime readers have read through to the acknowledgments section of my books, you’ll know that I have thanked Jupiter and many of the people at this wonderful company for the stories they’ve suggested to me.

  Under the e-mail subject line “Your next book?” Dave wrote, I just worked on a [case] that might be of great interest to you. What a story! He sent me a bullet-pointed list of facts from the Vonlee Nicole Titlow case. I was on the story that night, making calls and sending e-mails the next day. I need to thank Dave Lane, and everyone at Jupiter, for the years of friendship and business.

  With special gratitude, I also want to acknowledge Erin Althaus, cameraperson extraordinaire, who I have worked with at Jupiter on many occasions, but have failed to mention in previous acknowledgment pages. I apologize, Erin. I actually thought I had been thanking you, but had confused your name with someone else (sorry again). I know that sounds weird, but, in my defense, there are so many people I come into contact with throughout the course of a year, it’s hard to keep track sometimes.

  Vonlee Titlow was always available and willing to talk about anything, and I thank her for her time. She is a genuine person, a Southern gal to the core, and I don’t feel she participated in this crime the way in which she was convicted and sentenced. Vonlee’s crime is not saying anything, not turning Billie Jean in and not testifying against her. Yes, these are serious, felonious acts, but murder? I don’t feel she knew there was a murder taking place until it was too late.

  Did Billie Jean murder her husband, Don Rogers?

  I can only say, in my opinion, I believe Vonlee’s narrative of what happened.

  Valerie Newman was extremely helpful in understanding this entire case. I could not have written this book without the documents, interviews and e-mail responses she provided. Bill Cataldo was also very helpful, as were many sources that would rather go unnamed.

  My fans are the reason I write. I owe all I do to each reader. I put my heart and every bit of passion I have into these books every morning as I begin because my readers deserve it. I wish I could thank each one of you personally.

  I want to extend a thank-you to my Dark Minds fans: I am honored by your dedication and willingness to watch the series and support it. We managed to make three seasons before a decision was made to end it. I am indebted and grateful to Investigation Discovery for allowing me the opportunity to make the series and profile victims of crime. We have new projects to focus on now, but I want to say that making Dark Minds was an experience I will never forget. It was a gift to be able to produce this series.

  My publisher, Steve Zacharius, and the entire team at Kensington Publishing Corp.—especially Michaela Hamilton, my editor, Morgan Elwell and Vida Engstrand, from publicity—all of whom deserve my utmost respect and gratitude for the passion each puts into the books I write. These are great people who love what they do. To be part of Kensington’s continued success as an independent publisher is an honor. I am lucky. I tell myself this every morning as I awake and go to work. I never take for granted that what I do is a blessing.

  I would like to also give my sincere appreciation to everyone at Investigation Discovery and Beyond Productions involved in my work on television, both past and present. I’ve said this before many times, but it needs repeating. It takes an army of devoted people to produce a television series. Among those I want to personally thank: Dark Minds show runner and series producer, Andrew “Fazz” Farrell, and also SVP Production: Content, Geoff “Fitz” Fitzpatrick. Fitz and I have worked closely over the past year together on a lot of television projects and I have learned so much. I cannot thank Fitz and development head Anita Bezjak enough, both of whom have been mentors and great teachers of all things cable TV.

  Each of the following, in his or her own way, has taught me everything I know about making quality-grade, great nonfiction television: Alex Barry, Colette “Coco” Sandstedt, John Mavety, Peter Heap, Mark Middis, Toby Prior, Peter Coleman, Derek Ichilcik, Jared “Jars” Transfield, Jo Telfer, Claire Westerman, Milena Gozzo, Geoff Thomas, Cameron Power, Katie Ryerson, Inneke Smit, Pele Hehea, Jeremy Peek, Jeremy Adair, Geri Berman, Nadine Terens, Samantha Hertz, Lale Teoman, Hayden Anderson, Savino (from Onyx Sound Lab in Manchester, Connecticut), David O’Brien, Ra-ey Saleh, Nathan Brand, Rebecca Clare, Anthony Toy, Mark Wheeler, Mandy Chapman, Jenny O’Shea, Jen Longhurst, John Luscombe, Debbie Gottschalk, Eugenie “Jeannie” Vink, Sucheta Sachdev, Sara Kozak, Kevin Bennett, Jane Latman and Henry Schleiff.

  For my entertainment lawyer/business manager, Matthew Valentinas, a big thanks for this past year. We’ve only just begun, my friend!

  I would also like to thank Deb Allen, Donna Dudek, Mike Rogers, Maggie Sharbel, Elizabeth Strickland, Jasmine Fox, Katie Harrington and everyone else at Jupiter Entertainment for your willingness to alw
ays help me and answer my e-mails.

  Mathew, Jordon, Regina and April—thanks.

  Special Bonus for True-Crime Fans

  Keep reading to enjoy the exciting opening chapters

  of the next real-life thriller by

  M. William Phelps

  DON’T TELL A SOUL

  Coming soon from Kensington Publishing Corp.

  CHAPTER 1

  SHE HAD THAT SOUTHWESTERN charm people adore: a calm disposition, obvious Texas twang in her accent, a generally carefree, relaxed outlook on life, and Christian manner. Since 2002, sixty-eight-year-old Rueon had been married to eighty-three-year-old Gethry Walker, a man who was pretty much set in his ways. Gethry was a gentle spirit—one of those rare men that listened more than he talked, an old-school, churchgoing Texan who wore suspenders, a dress shirt and slacks, subtle, elegant tie, almost every day. When Gethry did have something to say, in fact, he spoke it at the altar behind a lectern during services at the Greater Love Temple Church in Tyler, Texas. Both Gethry and Rueon were, first and foremost, God-fearing people; they believed in Jesus Christ, redemption of the cross, penances paid for wrongs committed, justice, and—beyond perhaps most anything else—facing demons and coming to terms with who you are as a human being under the guidance, influence, and faith of God.

  When Saturday, June 19, 2010, came to pass, and Gethry or Rueon had not heard from Gethry’s daughter, thirty-eight-year-old Cherry Walker, they felt something was wrong. It was that paternal instinct kicking in.