This following is a bit wonky for this blog, but I'm posting it because it comes from my friend Karl Keys, one of the rising young and very brilliant lawyers in the abolition movement. Here's what Karl writes about Rompilla:
The Court Monday morning decided Rompilla v. Beard. Rompilla is a 5-4 win. "We hold that even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial. "
For practitioner's in many ways this is the major case of the term even if it is not grabbing the headlines like race & the death penalty in Miller-El or the juvie dp decision in Simmons. The Court in this case, however, painstakingly looks at a case from PA were defense counsel did a fairly good job in the penalty phase. Even though they did a fairly good job the Court held this was not enough.
This is just the latest in a line of ineffective assistnce of counsel cases where the Court found good wasn't simply good enough. For example, when read together with Wiggins the Court appears to be taking the approach that trial counsl must leave "no stone unturned" in investigating capital cases, (which is what the ABA Guidelines all but say). In both Rompilla & Wiggins it is clear the Court is taking cases where trial counsel did an above average job. The Court took Rompilla & Wiggins though to say above average is not enough. Indeed, compared to the transcript I have read in cases from the same time period in Texas & elsewhere they did a remarkablely good job & even this remarkably good job was not enough.
Justice Souter, the only one of the Justices from my understanding with a substantial amount of trial court experience (having been a prosecutor & trial court judge if memory holds), clearly is drawing on his memories from being in Court and his memory of what a really good attorneys do. Like any former trial advocate & judge his opinion clearly realizes that death cases are not run of the mill cases even if they are run of the mill cases to advocates in the Supreme Court bar & Attorneys General's capital prosecution units. Those with real courtroom experience realize that attorneys 30 months out of law school (as the penalty phase lawyer here was) should not be handling death cases. Those with courtroom experiences know these attorneys simply didn't cut it when their client needed them most.
Finally, and I may be reading too much into the case, the Court appears to be suggesting, if the dissent is to be believed, that if Lehigh County, PA wants to seek death it has to adequately fund indigent defense and not provide merely one investigator for every thousand cases in the office.
For those who like to follow the legal stuff, Karl follows federal death penalty rulings and state supreme court death penalty rulings more closely than anyone I know of. His writings can be found here.