The National Pulse

Inching Away From Death?

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Amid the U.S. Supreme Court’s high-profile criminal rulings this term came a little noticed June decision overturning a death penalty verdict on the grounds of ineffective assistance of counsel.

In Rompilla v. Beard, 125 S. Ct. 2456, the court held 5-4 that Ronald Rompilla was denied effective assistance of counsel because his court-appointed lawyers didn’t look at his prior court file, which contained information that could have helped develop mitigation evidence.

The case didn’t attract nearly as much publicity as recent cases ruling unconstitutional the executions of juveniles, Roper v. Simmons, 125 S. Ct. 1183 (decided in March), or the mentally retarded, Atkins v. Virginia, 536 U.S. 304 (2002). However, some lawyers view Rompilla as yet another indication that the Supreme Court is veering away from capital punishment.

Rompilla also was the third major case since 2000 to overturn death sentences for ineffectiveness of counsel at sentencing, based partly on ABA guidelines for rep resenting criminal defendants. In Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court reversed a death sentence based on ineffective assistance of counsel for failing to prepare, or request, a report on the defendant’s social history, which could have been used as mitigating evidence. And in Williams v. Taylor, 529 U.S. 362 (2000), the court likewise found defense counsel ineffective based on inadequately preparing mitigation evidence.

Taken together, the cases show that the court is troubled by the quality of lawyering on capital cases, some think.

“Now, with three cases in the same vein, it’s a lot harder for lower courts to consider this a fluke,” says Colin Garrett, who coordinates work against the death penalty for the National Association of Criminal De fense Law yers and works at the Southern Center for Human Rights in Atlanta.

A Cultural Trend?

Terri Lynn Mascherin, chair of the ABA’s death pen alty Representation Project, which filed an amicus brief in Rompilla, adds, “It evidences a concern among the court that these cases should be examined carefully.”

She adds that she sees Rompilla and the other recent death penalty reversals as part of a larger cultural trend of backing away from imposing capital punishment. “There’s been a change in public opinion overall in this country, which I think stems in large part from all of the publicity over wrongful convictions.”

Rompilla was charged with the 1988 murder of bar owner James Scanlon of Allentown, Pa. The two lawyers assigned to represent Rompilla prepared for the penalty phase of the case by speaking with his family and hiring mental health experts to assess him, among other measures.

But the attorneys neglected to review a case file relating to a previous case—which, as it turned out, contained reports showing Rompilla had just a third-grade level of cognition. The file also had test results that, according to the court, “the defense’s mental health experts would have viewed as pointing to schizophrenia and other disorders.”

The Supreme Court, relying on ABA guidelines, held that failing to look at the prior file was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), which set the standard for effective assistance. The omission was prejudicial, according to the Rompilla majority, because the file contained information and, more important, leads on yet further information that counsels’ own investigation into Rompilla’s background hadn’t uncovered.

“If the defense lawyers had looked in the file on Rom pilla’s prior conviction, it is uncontested they would have found a range of mitigation leads that no other source had opened up,” wrote Justice David H. Souter in an opinion joined by Justices Ruth Bader Ginsburg, John Paul Stevens and Stephen G. Breyer. (Justice Sandra Day O’Connor concurred in a separate opinion.)

“The accumulated entries would have destroyed the benign conception of Rompilla’s upbringing and mental capacity defense counsel had formed from talking with Rompilla himself and some of his family members, and from the reports of the men tal health experts,” Souter wrote. Further delving by post-conviction counsel uncovered that Rompilla’s parents were alcoholics who physically and emotionally abused him.

The prosecution had informed defense counsel that it planned to introduce evidence relating to Rompilla’s prior record during the penalty phase of the case. There fore, the court ruled, defense counsel had an obligation to view those records, citing the 1982 edition of the ABA Standards for Criminal Justice, in circulation at the time of the trial. Souter also referred in the opinion to subsequent ABA guidelines for representing defendants in death penalty cases.

‘Explore all Avenues’

Specifically, Souter cited Criminal Justice Standard 4-4.1—that the lawyer’s duty is “to explore all avenues leading to facts relevant” to the case and “should always include efforts to secure information in the possession of the prosecution.” The word “always” was dropped in the 1993 version, but, Souter wrote, there was no material difference between the two phrasings.

In his dissent, Justice Anthony M. Kennedy said, “Un der any standard of review the investigation performed by Rompilla’s counsel in preparation for sentencing was not only adequate but also conscientious.” He was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

In addition, Kennedy said, the ABA standards should serve only as a “useful point of reference,” not “binding statutory text.”

Though the facts are specific, some defense lawyers point out that the case might be broader than it first appears. Garrett says that this wasn’t a situation where Rompilla’s assigned counsel “did nothing”; at a minimum, the lawyers had Rompilla assessed by mental health experts, contacted family members and presented Rompilla’s son as a witness during the penalty phase.

“In reality, there’s great mitigation in every case,” he adds. Garrett recently wrote an article for the NACDL publication The Champion in which he argued that defense counsel always can find mitigating evidence if they look hard enough. “If the attorneys haven’t found compelling mitigating evidence, by definition, it is not reasonable for them to stop,” he wrote.

And, Garrett notes, the court’s decision rested on a number of suppositions: If counsel had seen the prior file, they would have been alerted that Rompilla’s upbringing had been troubled; if they had shared that information with mental health experts, they would have formed different conclusions about Rompilla; and further exploration of his background would have uncovered alcoholic parents and an abusive childhood. All those facts might have swayed the jury to spare his life.

Overall, he says, that’s a lot of “ifs” for the Supreme Court to rest a reversal on—evidencing, perhaps, a distrust for whether the death pen alty can be fairly applied. But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which weighed in with an amicus brief on the government’s side, stresses that the Supreme Court’s ruling is limited. “What’s noteworthy about the decision is that the court chose the narrowest possible ground on which to decide it,” he says.

He adds that the foundation, based in Sacramento, Calif., got involved because it feared the Supreme Court might rule that anything less than a scorched-earth search for mitigation evidence was ineffective. “The proposition that the Sixth Amendment requires a no-stone-unturned investigation in every capital case was rejected in Strickland,” the brief stated.

Scheidegger also says the foundation was concerned that the court might hold that counsel who undertook efforts short of what the ABA guidelines recommend might be held ineffective. “We avoided the damage that we were mainly concerned about,” he says, adding that he considers Rompilla an outlier because very few criminal defense lawyers likely would have failed to retrieve court records relating to a prior conviction. He also disputes that the Supreme Court is veering away from the death penalty in general, pointing out that the court issued several rulings against defendants in capital cases this term.

But others insist that the case telegraphs the Supreme Court’s concern that the death penalty isn’t being imposed fairly.

“It’s certainly an indication that the court is very concerned about the quality of representation and the fairness of capital cases and the way they’re handled,” says Natman Schaye, a criminal defense lawyer in Tucson, Ariz., and an active NACDL member.

“That, in itself, is going to contribute to the downfall of capital punishment.”

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