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supreme court dispatches: Oral argument from the court.

To Die For?Dying for the lack of a good lawyer.

By Dahlia Lithwick
Posted Tuesday, Jan. 18, 2005, at 6:44 PM ET

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.

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.

Justice John Paul Stevens—who has taken to lobbing a lot of softballs of late—adds, "You're telling us that all this information would have been in that file and his lawyers didn't even look at that file?"

Nolas turns to the jury instruction issue, and O'Connor points out that the prosecutor never "expressly" warned the jurors of Rompilla's future dangerousness. Neither Kennedy nor Justice Antonin Scalia believes that the prosecution comments were even implicit warnings of future dangerousness. The language about his past killings and how he learned to leave no witnesses show only "depravity" according to Scalia. "Of course jurors will be scared of him."

Nolas points out that it was clear from the jury questions about the possibility of parole that "they got the message of future dangerousness."

Amy Zapp is the Chief Deputy Attorney General from Harrisonburg, Penn., and Souter corners her for a lengthy back-and-forth about whether prosecutors need to actually use the "talismanic words—future dangerousness" in order to give jurors the message that someone needs to be locked up for life or executed. "This isn't about generalized badness," he says. It's a warning of "criminal recidivism. It's closer to the explicit argument that he'll do it again." Replies Zapp, "We're only talking about two episodes. ..."

Stevens wants to get back to the ineffectiveness of counsel argument. "I am sympathetic," he says, "to busy lawyers preparing for a case. But when the prosecutor said he would use these files to show aggravating factors, and if defense counsel had examined those files they'd find a wealth of mitigating evidence. ... "

"But not all records are equal," says Zapp. "They thought they knew everything in it." The oddity of these ineffective counsel cases lies in watching the opposing side argue so zealously that defense counsel were glittering legal stars at trial.

Breyer re-asks Stevens' question for him, but at great length, and using the words "horrendous" several times. It's clear that he, Stevens, Ginsburg, and Souter think these were some seriously crap lawyers. Zapp's response is that counsel had interviewed Rompilla and they thought that was enough.

Kennedy observes that this is an "argument for serendipity. If you don't look at the record for one reason, it's ok not to look at it for another."

Traci I. Lovitt is given 10 minutes to represent the Justice Department, and she chooses to wear the SG office's full gray frock coat costume in which to do so. Lovitt argues that it's not obvious that looking at old court records would have been superior to what trial counsel actually did—which was hire three experts, all of whom, she claims, were charged with developing mitigating evidence and not just determining whether Rompilla was competent to stand trial. The lawyers interviewed Rompilla and some of his family, who told them nothing. They had done enough.

Today's case isn't all that significant, really. For one thing, a jury instruction decision will only affect Pennsylvania. And this is just one of thousands of claims about inadequate trial lawyers that capital defendants put forward. The press gallery is virtually empty.

Ineffective assistance of counsel cases are depressingly like medical malpractice cases: You can always go back and find something that could have been done better in hindsight. Overworked, stressed-out capital defense lawyers have limited time and resources. But the key difference between ineffective assistance of counsel cases and medical malpractice cases is this: If you find the physician wasn't negligent, you don't go back and kill the patient. Whereas if the court determines Rompilla's lawyers did an even minimally competent job at trial, he'll die.

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Dahlia Lithwick is a Slate senior editor.
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Remarks from the Fray:

The question over attorney effectiveness and document review raises a very big issue, and a traditional question: How do you know that what you don't know is important? On one hand, there may be some bare minimal standard of documentation to review for a legal case. But, on the other hand, how does a lawyer (or anyone) know that there is not some important piece of information in the next memo, file, or cabinet?

It is ironic. Big firms hire top law school talent and pay them huge salaries -- to do little more than read through mountains of usually irrelevant trivia…

Yet, for a capital criminal defense --where a life is specifically hanging in the balance -- attorneys often don't/won't/can't do even the most *basic* documentary research.

If you file a million dollar personal injury suit, your *own* attorney will probably spend more money checking your background than your public defense attorney would if you were charged with murder. The local government will spend over $7,500 dollars to get a person a security clearance. A person charged with murder, however, can only hope a judge would approve such a sum for their own background/investigation.

There may be no easy answers, but clearly if "money talks" we don't value lives all that much.

--fozzy

(To reply, click here)


… I tend to see the judge's refusal to answer the jury's questions about possibility of parole – in light of Pennsylvania's clear sentencing guidelines on this matter – something that ought to earn Rompilla at least a re-hearing of the penalty phase of his trial with such matters made clear. However, I am less inclined to be sympathetic if he and his family purposefully withheld information from counsel or even provided contraindicating information, whatever their reasons for doing so, and then try to cry foul about it later.

If Rompilla really does suffer from sort of abnormally functioning brain, then I see that as a mitigating factor that could conceivably spare him the death penalty. But I am again less sympathetic to claims of retardation when it is clear that it is mild enough to go undetected by two lawyers and three psychiatrists lacking documentation with apparent ease. Maybe Rompilla is both mentally retarded and a sociopath. Maybe the "talismanic words" in this capital punishment case are not "future dangerousness" but rather "mental retardation."

--The_Bell

(To reply, click here)

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