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Washington—In reversing a Pennsylvania man’s death sentence last week, the U.S. Supreme Court continued a recent and sharp focus on the performance of lawyers representing capital murder defendants and a greater reliance on what the organized bar expects those lawyers to do, said defense counsel and others. A 5-4 majority, led by Justice David H. Souter, set aside the death sentence of Ronald Rompilla after finding that his trial lawyers failed to examine a prior-conviction file that they knew the prosecution intended to use as evidence of aggravation in the sentencing phase of Rompilla’s trial. Rompilla v. Beard, No. 04-5462. Rompilla is the third decision in a key trio of high court rulings since 2000 honing in on defense counsel’s obligations, signaling the justices’ growing concern with capital representation. Souter noted that Rompilla’s case was not one in which defense counsel simply ignored their obligation to find mitigating evidence, nor did their workload as busy public defenders prevent them from making a number of efforts to find such evidence. But without making “reasonable efforts” to review the prior-conviction file, he added, defense counsel “could not effectively rebut the aggravation case or build their own case in mitigation.” That failure constituted ineffective assistance of counsel under the test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Requiring defense counsel to obtain information that the prosecution has and will use against the defendant, he said, “is not simply a matter of common sense.” Souter noted that the American Bar Association (ABA) Standards for Criminal Justice were available at the time of Rompilla’s trial, and they described defense counsel’s obligation “in terms no one could misunderstand in the circumstances of a case like this one.” Souter also devoted a lengthy footnote to the 1989 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, which explicitly require counsel to investigate prior convictions that could be used as aggravating circumstances. Those guidelines, he noted, were cited in the second key decision in the recent trilogy: Wiggins v. Smith, 539 U.S. 510 (2003). Wiggins built on Williams v. Taylor, 529 U.S. 362 (2000). The ABA criminal justice standards were actually mentioned in a footnote in the 1984 Strickland decision, but between 1984 and the 2000 Williams decision, there was a “long march of cases” in which the justices found no ineffective assistance of counsel and offered no recognition that professional standards existed on that issue, said Terri L. Mascherin of Chicago’s Jenner & Block, who chairs the ABA Death Penalty Representation Project. “What Williams, Wiggins and Rompilla show is a shift in focus on the court, and the recognition that there really is an issue out there having to do with lack of quality of counsel provided to defendants in these cases,” Mascherin said. “They also show the court’s willingness to look seriously at counsel performance, and, in particular in Wiggins and Rompilla, a willingness to look at what the organized legal profession has to say about what lawyers should be doing,” Mascherin said. In dissent, Justice Anthony M. Kennedy accused the majority of setting a “per se rule” requiring counsel in every case to review prior-conviction records if they are to be used by the prosecution-a “radical departure from Strickland and its progeny.” He also said the majority “parsed” the ABA guidelines as if they were “binding statutory text.” “The court is sticking to the Strickland standard and I don’t think it is changing it at all. I think it comes down to a matter of application,” said Professor Kathy Swedlow, co-director of the Innocence Project at Thomas M. Cooley Law School in Michigan. “The majority is saying this is a court file and the prosecutor is going to use it, so investigate it,” Swedlow added. “I don’t see that as changing Strickland.” Kent Scheidegger of the Criminal Justice Legal Foundation, who saw no Strickland violation by Rompilla’s lawyers, said the decision would affect relatively few cases. But taken together, the trio of Rompilla, Wiggins and Williams, countered others, provide greater guidance to lower courts. “The three cases together offer a new take on this issue from the court that really is different from anything we’ve seen from the court in 20 years or so on ineffective assistance of counsel,” said Mascherin.

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