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WASHINGTON — The U.S. Supreme Court appeared sharply divided Tuesday over a Pennsylvania case that could set new minimum standards for effective assistance of counsel in death penalty cases. The case, Rompilla v. Beard, also raises the issue of when jurors in capital cases must be told that the alternative sentence of life without parole actually means that the defendant will never get out of prison. But much of the hourlong oral argument was spent with justices debating — and questioning — the diligence of the trial lawyers who defended Ronald Rompilla in his 1988 trial on charges that he murdered the owner of a bar in Allentown, Pa. After he was found guilty, his lawyers, public defenders Fred Charles and Maria Dantos, elicited character witness testimony from five Rompilla family members, but they did not review court records that would have revealed Rompilla’s past mental illness and alcoholism, as well as a childhood lived in poverty. “All this information was in the file and they didn’t even look at the file?” asked Justice John Paul Stevens at one point. “I’m very sympathetic about busy lawyers with lots to do. � But isn’t this a very serious mistake by the lawyers?” Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer also appeared troubled by the defense lawyers’ lapses, but Breyer said he was not sure how a rule could be written to require lawyers to perform certain tasks in every case. In Rompillla’s case, jurors sentenced him to death, but not before asking the judge twice whether, if they sentenced him to life instead, he could ever be paroled or released. The trial judge said that state law barred him from answering the question. On post-conviction appeal, the Pennsylvania Supreme Court denied the ineffective assistance of counsel claim, and the Third Circuit U.S. Court of Appeals also ruled 2-1 that the defense lawyers had acted reasonably. Third Circuit Judge Samuel Alito, frequently mentioned as a possible U.S. Supreme Court nominee, wrote for the majority that trial counsel had “conducted an extensive investigation for mitigating evidence” and should not be faulted for deciding that the court records were “not promising avenues for investigation.” The appeals panel also ruled that under precedents in place at the time, it was not improper for the trial judge to refuse to answer questions about parole. In dissent, Alito’s colleague Judge Dolores Sloviter called the trial lawyers’ performance “shocking” and below standards set by the U.S. Supreme Court, most recently in the 2004 case Wiggins v. Smith. In a brief before the high court, the American Bar Association also said the lawyers’ performance “fell far short” of ABA guidelines for capital representation. Representing Rompilla before the high court, Assistant Federal Defender Billy Nolas of Philadelphia said that Rompilla’s trial attorneys repeatedly failed to seek information from readily available sources that could have led them to strong mitigating evidence. But Justice Anthony Kennedy countered that “the counsel appeared quite articulate” and seemed to have mounted a competent defense. “Is the rule that you have to get the paper records?” asked Kennedy, who later mused that Rompilla was seeking a constitutional rule requiring “serendipity” that would lead defense lawyers to helpful evidence. Justice Sandra Day O’Connor also appeared unperturbed about the lawyers’ conduct. Noting that Rompilla’s trial lawyers had called several relatives as witnesses, O’Connor asked, “Would a reasonable person think that is enough?” Nolas said no, because in this instance Rompilla’s family members — some of whom barely knew him — were “not good sources of information.” Justice Antonin Scalia dismissed that response as “an extraordinary non sequitur.” Arguing against Nolas were Amy Zapp, chief deputy Pennsylvania attorney general, and Traci Lovitt, assistant to the U.S. solicitor general. Zapp, replying to a skeptical question from Stevens, said, “Not all records are equal,” suggesting that it was not inappropriate for Rompilla’s lawyers to ignore them. On the other issue in the case, Zapp also said that the trial judge acted properly in not answering the jurors’ question about parole. With the availability of clemency and other legal procedures, she noted, the question of whether a prisoner sentenced to life without parole can ever walk the streets again is “not a simple answer.” On the lawyer competence issue, Lovitt also said that the defendant’s lawyers “received everything they needed” and “conducted an objectively reasonable investigation.” Under persistent questioning from Justice Ginsburg, Lovitt acknowledged that “with the benefit of hindsight,” consulting more court records might have been useful, but she said that at the time of trial, “the prevailing practice was not to get records” from past criminal proceedings for mitigating evidence. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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