The Supreme Court ponders how bad a bad lawyer must be.

Oral argument from the court.
Jan. 18 2005 6:44 PM

To Die For?

Dying for the lack of a good lawyer.

In January 1988, Ronald Rompilla entered the Cozy Corner Café in Allentown, Penn., stabbed the proprietor, James Scanlon, then set him on fire. Rompilla was tried for murder before a jury, and at the penalty phase the prosecutor sought to introduce evidence of Rompilla's prior violent felony conviction for the rape and stabbing of another bar owner as an aggravating factor that would lead to imposition of the death penalty. In his closing arguments, the prosecutor scared the pants off the jurors:

But isn't it frightening, the similarity between that case and this case ... he slashes [the woman] in the breast with a knife. He uses a knife on Jimmy Scanlon. It's absolutely frightening to think of the similarities in those two crimes. But there is one difference, one major difference, [the woman] lived through her experience. Jimmy Scanlon didn't. ... Rompilla had learned a lesson ... don't leave anybody behind that can testify against you.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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As it began its deliberations, the jury sent out a series of questions to the judge, including one asking whether there was any chance of Rompilla ever being paroled. Even though Pennsylvania law required a life sentence without a chance of parole, the judge refused to answer the jury's inquiries, and the jury ultimately voted for the death penalty. One of the questions the court needs to address this morning is whether the prosecution's words to the jury constituted a warning about his "future dangerousness." If it did, Rompilla argues that under a 1994 case, Simmons v. South Carolina, the jury needed to be instructed that life without parole was a sure thing.

But that's not all.

Rompilla also has a claim of ineffectiveness of counsel. His trial lawyers failed to investigate or present to the jury a set of prior criminal records, detailing a slew of mitigating factors, including his alcoholism, mental retardation, and traumatic childhood. The jurors sentenced him to death after finding several aggravating factors and without hearing about consequential mitigating ones.

Rompilla lost in the Pennsylvania Supreme Court twice before filing a habeas corpus petition in federal district court. He lost there on the issue of jury instructions but won his claim of ineffective counsel. The 3rd Circuit Court of Appeals reversed that decision, reinstating the death penalty and finding that trial counsel's performance was adequate and that the prosecutor's words at closing did not constitute an argument about future dangerousness. Which brings us all back to the Supreme Court, where Rompilla faces either execution or a lifetime in prison.

Billy H. Nolas is an assistant federal defender, and he opens with the ineffective counsel claim. Rompilla must show that his lawyers didn't just make tactical errors, but that their representation was inadequate. Nolas argues that the trial lawyers "didn't secure a single piece of paper" to investigate possible mitigating factors.

Justice Anthony Kennedy stops him: "Are you asking for a constitutional rule that counsel has to get paper records?" He adds that the defense put on three forensic mental-health experts who didn't think they needed to look at those prior records either.

Nolas replies that those three experts were not asked to develop evidence of mitigating evidence—they were supposed to evaluate whether Rompilla was mentally fit to stand trial. Justice Sandra Day O'Connor points out that counsel also "made use of four relatives of the defendant ... wouldn't a reasonable person think that was enough?" Nolas replies that those relatives couldn't illuminate Rompilla's terrible past because, among other things, members of dysfunctional families "don't want to talk about it."

Justice David Souter notes that one of the three mental-health experts had suggested following up on Rompilla's alcoholism. "Was anything done about that?" (No). Then Ginsburg adds that the relevant file with all the un-pursued mitigating evidence was "in the very same courthouse" Rompilla was tried in. Nolas enthusiastically adds that the file would have revealed Rompilla's dismal test scores, diagnoses of schizophrenia and paranoia, and the fact that he was raised in a slum by a neglectful mother.

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