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The U.S. Supreme Court appeared sharply divided last week over a Pennsylvania case that could set new minimum standards for effective assistance of counsel in death penalty cases. Rompilla v. Beard, No. 04-5462. The case 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 hour-long oral argument was spent with justices debating 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. Following conviction, 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 past mental illness and alcoholism. “All this information was in the file and they didn’t even look at the file?” asked Justice John Paul Stevens. “[I]sn’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. Jurors sentenced Rompilla 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, both the Pennsylvania Supreme Court and the 3d U.S. Circuit Court of Appeals denied the ineffective assistance of counsel claim. Representing Rompilla before the high court, Assistant Federal Defender Billy Nolas of Philadelphia said that Rompilla’s trial attorneys had repeatedly failed to seek information from readily available sources that could have led them to mitigating evidence. But Justice Anthony Kennedy wondered if Rompilla was seeking a constitutional rule that would lead defense lawyers to helpful evidence. Arguing against Nolas were Amy Zapp, chief deputy Pennsylvania attorney general, and Traci Lovitt, assistant to the U.S. solicitor general. Zapp said that the trial judge acted properly in not answering the jurors’ question about parole. With the availability of clemency and other legal procedures, the question of whether a prisoner sentenced to life without parole can ever walk the streets again is “not a simple answer.” Under persistent questioning from Ginsburg, Lovitt said that at the time of trial, “the prevailing practice was not to get records” from past criminal proceedings for mitigating evidence.

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