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For Ronald Rompilla, the new Supreme Court calculus is simple: Had Judge Samuel Alito Jr. been in Justice Sandra Day O’Connor’s seat last year, Rompilla almost certainly would have a date right now with a lethal injection. Fortunately for Rompilla, Alito’s nomination comes four months after O’Connor provided the swing vote in a 5-4 decision throwing out his death sentence. Predicting how someone will rule once on the high court can make fools of even the most observant Court watchers. Just ask conservatives who supported the confirmation of Justice David Souter. But the case of Rompilla v. Beard provides an unusually clear example of how Alito and the justice he has been nominated to replace came to vastly different conclusions from the same available evidence. “If it was Alito and not O’Connor, the results would have been 5-4 the other way,” says David Rudovsky, a law professor at the University of Pennsylvania. The reason: It was Alito’s 2004 opinion for the U.S. Court of Appeals for the 3rd Circuit upholding Rompilla’s death sentence that O’Connor and four other justices overturned. In citing the failure of Rompilla’s lawyers to investigate mitigating evidence that might have swayed the jury to grant Rompilla life imprisonment, the Court sent a message to states that public defenders must meet a higher standard of representation. The difference in the two perspectives illustrates Alito’s deference to prosecutors and to the findings of state courts and raises questions about whether he would steer the Court in a different direction on the issue of capital punishment. “The Supreme Court decision in Rompilla was really a ray of hope that the Supreme Court might look at capital cases more closely,” says Anne Poulin, a law professor at Villanova University School of Law and a death penalty critic. Today, Rompilla, 57, sits in solitary confinement in a state prison in Waynesburg, Pa., awaiting word from the trial court about a new sentencing hearing. The legal path that led Rompilla to Waynesburg, and his case to the U.S. Supreme Court, is long and tortured. Seventeen years ago, Rompilla was convicted of the brutal killing of James Scanlon, the owner of the Cozy Corner Cafe, an Allentown, Pa., tavern. Rompilla, just months out of prison after serving a 13-year sentence for rape, had been seen drinking in the Cozy Corner in the early-morning hours of Jan. 14, 1988. After the bar emptied out, Rompilla slashed Scanlon in the hands and face with a knife, hit him over the head with a bottle, then stabbed him 16 times in the neck and head, breaking the blade in the process. According to court records, Rompilla then walked into the kitchen, grabbed a butcher knife, and stabbed Scanlon three more times before lighting his body on fire. He took Scanlon’s wallet, emptied the register, and called a taxi to take him to a motel. Scanlon’s son found his remains in a pool of blood the next morning. In total, Rompilla made off with somewhere between $500 and $1,000. THE COMMONWEALTH’S DEFENDERS There were no eyewitnesses to the murder, but a slew of evidence pointed to Rompilla. Though he claimed to have left the bar with $2 in his pocket at around 2:30 a.m., to get breakfast, a taxi driver testified he dropped Rompilla off at the motel and that Rompilla had paid him $9 in cash. At the motel, Rompilla checked in for two nights, under an assumed name, and flashed a large wad of cash when paying his $120 bill. During a later search of his room, police found a pair of bloody sneakers whose tread matched a print left at the scene of the crime. A motel staffer later found Scanlon’s wallet in some bushes less than 10 feet from Rompilla’s room, and investigators found one of Rompilla’s fingerprints on one of the knives used in the murder. On top of that, he had been previously convicted of a remarkably similar crime. In 1974 he was found guilty of raping another bar owner at knifepoint before robbing the bar and calling a late-night taxi. At the murder trial, Rompilla was assigned two lawyers. The first, Frederick Charles, was the chief public defender for Lehigh County. Though an experienced defense lawyer, Charles had never handled a capital jury trial. The second lawyer, Maria Dantos, was just two and a half years out of law school. Charles, now in private practice, and Dantos, now a Lehigh County prosecutor, did not return messages seeking comment. Unable to make a winning case to the jury, the defense attorneys concentrated on mitigating evidence that might persuade the jurors to spare his life during the sentencing phase. But their resources were limited: Charles had just two investigators for a public defender’s office that was then handling 2,000 cases. In preparing the closing, the lawyers consulted Rompilla and five family members about his personal history and retained three mental health experts to examine Rompilla for evidence of psychiatric problems. No one — not his family, not the doctors, not even Rompilla himself — indicated there were any problems with his family history, upbringing, or alcohol that would mitigate or help explain his violent attack, Dantos and Charles later testified. At sentencing, Dantos did have several of Rompilla’s relatives testify about his good nature. Since being released from prison, Rompilla had helped around the house and worked as a housepainter. “You saw what the Commonwealth wants you to believe of Ron Rompilla: He’s an animal,” Dantos told the jurors. “I wanted to show you his family so that you could see that he’s more than this act that you have found him to have committed. He’s more than that. He’s got love, he’s got love of his family. He’s got his 14-year-old son that loves him. God knows what could happen if he’s allowed to live.” During deliberations the jury sent out three questions for the judge, then it delivered its verdict: death. CAGED AS A CHILD There was, however, much that the jury did not know. Rompilla’s childhood, it turned out, was far from normal. He lived in a dark basement tenement, the sixth of nine children in a clan known in Lehigh County courts as the “notorious Rompilla family.” His mother would disappear for days on end and drank heavily. His father would beat the children with “belts and brooms,” according to testimony from his sister. There were few signs of parental affection — no birthday parties, no new clothes, and few gifts for Christmas. Once, Rompilla’s father locked him and his brother in a dog pen filled with excrement. Prison records also raised questions about Rompilla’s mental state. Growing up, he had been in special education classes and dropped out after ninth grade. As an adult, he tested at a third-grade level in spelling and math. A psychological evaluation at the time of his rape conviction showed “abnormalities on the schizophrenia, paranoia, neurosis and obsessive/compulsive scales.” But Rompilla’s attorneys knew none of this because they never reviewed any evidence from his prior convictions, his medical history, or his school record — even though they knew prosecutors would use their client’s past to push for the death penalty. With new attorneys from the federal public defender’s office representing him, Rompilla appealed his sentence to the Pennsylvania Supreme Court, which upheld it, and eventually to the federal courts, where a district judge in Philadelphia commuted his sentence to life in prison. ALITO WEIGHS IN But the fact that the defendant’s attorneys had failed to uncover important mitigating evidence was not enough to sway the 3rd Circuit that Rompilla’s constitutional rights had been violated. Writing for the majority, Alito found that the key issue was how to apply the Supreme Court precedent written by O’Connor in Strickland v. Washington. Under that decision, Alito ruled, federal courts should only intervene in state death penalty cases if the state court acts in an “objectively unreasonable manner” to deny a defendant competent legal representation. Absent abuse of discretion, the federal courts should defer to the state’s decisions. Alito saw nothing in Rompilla’s case that required federal intervention. His attorneys had been reasonably diligent. If there had been mitigating evidence to present, Alito reasoned, “at least a hint of its availability would be disclosed in the interviews with Rompilla and his family members or in the testing and evaluations performed by the three mental health experts whom they retained.” In the last analysis, Alito determined that indigent defendants, even in capital cases, didn’t have a right to resourceful defense attorneys and bountiful investigative help. “While we may hope for the day when every criminal defendant receives that level of representation,” Alito wrote, “that is more than the Sixth Amendment demands.” In the end, however, Alito’s narrow reading of the constitutional right to counsel did not pass muster with the high court. While Souter, who wrote the Rompilla opinion, acknowledged that “there is room for debate” about what the Sixth Amendment required, he saw no excuse for the failure of Rompilla’s attorneys to examine the court file of their client’s prior conviction. “It is difficult to see how counsel could have failed to realize that without examining the readily available file they were seriously compromising their opportunity to respond to a case for aggravation,” Souter wrote. Justice Anthony Kennedy’s dissent, joined by then-Chief Justice William Rehnquist and Justices Clarence Thomas and Antonin Scalia, feared that Souter’s opinion imposed a “rigid requirement” on how defense attorneys should do their job. But O’Connor, in a concurring opinion, made clear that all the Court was doing was applying its “longstanding case-by-case approach.” What the difference between O’Connor’s and Alito’s approach means for future death penalty cases is an open question. But in this case, a single justice altered the outcome.
Emma Schwartz can be contacted at [email protected]. Jason McLure can be contacted at [email protected].

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