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Supreme Court weighs fate of Pennsylvania death row inmate

WASHINGTON—The Supreme Court appeared split Tuesday over a Pennsylvania death row inmate's fate, as justices considered whether Ronald Rompilla's jury was given poor instructions, and whether his lawyers did a poor job defending him.

For Rompilla, 56, who beat, stabbed and burned an Allentown man to death in 1988, the high court's decision could mean the difference between a new hearing and a date with the executioner.

For the justices, the case is one in a long line examining how the death penalty is meted out in this country. The court has significantly transformed capital punishment in recent years, outlawing executions of the mentally retarded and hiking up standards for defense lawyers.

But during Tuesday's arguments, at least one justice who has supported prior changes, Justice Anthony Kennedy, seemed skeptical of Rompilla's case. Justice Sandra Day O'Connor, a swing vote in death penalty cases, sat mostly quiet.

Billy Nolas, the federal public defender handling Rompilla's case, told the justices that his client was wronged when jurors in his case were not told that he could never be paroled from a life sentence for the crimes. He also said Rompilla's lawyers failed him when they declined to look into his school and mental health records for evidence that could have convinced the jury to spare his life.

But Pennsylvania Deputy Attorney General Amy Zapp said Rompilla's lawyers did a lot of research on their client's background and made a strategic choice not to do more, thinking that there was nothing in his past that would help his case. The federal government is backing the state on that position.

Zapp also said the jury did not have to be told about the optional punishment of life without parole because prosecutors never explicitly argued that Rompilla should be executed to prevent him from killing again. "The words in this case did not tell the jury to take future dangerousness into account," Zapp told the justices. Prosecutors have to contend that a defendant is likely to kill again, she said, to trigger a requirement that a jury be told that life without parole is an option.

In some ways, Rompilla's case makes clear how focused the high court's death penalty review has become. The justices have already made clear in 1994 and 2002 that jurors need to be informed about life without parole even when prosecutors only hint that a defendant could be dangerous in the future. And a 2003 ruling in Wiggins v. Smith said defense attorneys must conduct a "thorough investigation" of a client's background to find "all reasonably available mitigating evidence."

The questions in Rompilla's case are whether the 1994 and 2002 rulings apply to the specific and peculiar circumstances of his case, and whether his lawyers, who did investigate his background but missed critical information, met the standards set by the 2003 ruling.

Tuesday, it was clear that Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens—all leaders of the court's death penalty reform efforts—were leaning in Rompilla's favor.

Souter pressed Zapp on her insistence that prosecutors were not really arguing that Rompilla would be a future danger when they listed his prior crimes and harped on the brutality of the 1988 murder.

"This was a specific argument that says, he has done this twice, it's recidivism and he's getting better at it," Souter said. "It's not a general argument that he's a bad person."

Breyer said it seemed incredible that Rompilla's lawyers didn't find out about the abuse he suffered as a child, because there was reference to it in documents they could have obtained from prosecutors, but didn't.

"The document says, `Ronald comes from the notorious Rompilla family,' and then it goes on to say why they were so notorious," Breyer said. "They didn't view that document, so they didn't know."

Justices Kennedy and O'Connor, who both supported the toughening of standards in the earlier court cases, expressed concerns Tuesday that by overturning Rompilla's death sentence they would be broadening those protections too much.

Kennedy wondered aloud whether it was reasonable to hold Rompilla's lawyers responsible for something they might have discovered through "serendipity" by rummaging through documents.

O'Connor said the justices had a "really tough road" to travel to find that anything done in the case was "unreasonable," as federal law requires before the court overturns a death sentence.

Without either Kennedy or O'Connor, Rompilla's appeal will fail.

The justices' skepticism was echoed in the arguments of Traci Lovitt, assistant to the U.S. Solicitor General, who said Rompilla's lawyers had conducted a reasonable investigation, then made a "strategic choice" not to go further. She said his lawyers hired mental health experts who looked into his history, and his family insisted there was no history of abuse.

"There's a misconception that counsel did nothing here," Lovitt said. "That's wrong. They did."


(c) 2005, Knight Ridder/Tribune Information Services.

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