Ineffective Assistance of Counsel — Failure to Review Prior Conviction File

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By Lazar Emanuel
[Originally published in NYPRR August 2005]


The months of May and June 2005 saw a number of state and federal cases dealing with ineffective assistance of counsel in criminal cases. The flow of cases culminated with Rompilla v. Beard, No. 04-5462, decided by the U.S. Supreme Court on June 20, 2005. The Court’s opinion in Rompilla was written by Justice Souter. He was joined by Justices Stevens, Breyer, Ginsburg and O’Connor. Justice O’Connor filed a separate concurring opinion. Justice Kennedy wrote the dissenting opinion, joined by Justices Scalia and Thomas and by Chief Justice Rehnquist.

The Sixth Amendment to the Constitution guarantees that in all criminal prosecutions, the accused shall “have the assistance of counsel for his defense.” The word “assistance” has been construed by the Supreme Court to mean “effective assistance.” The standards for evaluating whether counsel’s assistance has been effective were established by the Supreme Court in 1984 in Strickland v. Washington, 466 U.S. 668.

To sustain a claim of ineffective assistance in the federal courts, the defendant must satisfy a two-pronged inquiry. The first prong asks: did counsel’s representation fall below an objective standard of reasonableness under prevailing professional norms, or, in other words, was the representation “within the range of competence expected of lawyers in criminal cases”? The second prong asks: did counsel’s ineffectiveness prejudice the defense, or, in other words, is there “a reasonable probability that but for counsel’s unprofessional errors, the results of the proceeding would have been different”? When the guilt or innocence of the defendant is the issue, the question becomes: is there a reasonable probability that but for counsel’s errors there would have been a reasonable doubt respecting guilt?

Obviously, inquiries into the first prong are always fact driven. The Supreme Court is more likely to find ineffective assistance in capital cases, especially when the defendant has actually been sentenced to death. For this reason, the Court applies its most intensive scrutiny to counsel’s conduct during the penalty phase of the jury’s deliberations.

In Wiggins v. Smith, 539 U.S. 510 (2003), defendant was convicted of murdering a 77-year old woman by drowning her in her bathtub. Defendant’s lawyers told the jury that during the sentencing phase they would hear mitigating evidence of defendant’s difficult life. In fact, they offered no evidence at all. If they had investigated defendant’s social history, they would have found that defendant’s mother was a chronic alcoholic who frequently left defendant and his siblings alone and hungry for days, that the mother had placed him in a foster home at the age of six, that his foster parents had abused him physically and sexually, and that he had been homeless and on the streets since the age of 16. The jury sentenced the defendant to death and the Supreme Court reversed.

The Court found that counsel’s failure to investigate defendant’s social history “fell short of the professional standards that prevailed in Maryland at that time.” In fact, the ABA guidelines in effect instructed lawyers conducting the death penalty phase of a trial to consider presenting evidence of “family and social history.” Counsel’s failure to investigate was caused by “inattention, not reasoned strategic judgment.”

On the issue of prejudice, the Wiggins court held that because the mitigating evidence which would have resulted from adequate investigation was in fact “powerful,” there was a reasonable probability that except for counsel’s unprofessional failure to investigate, the jury would have decided on life imprisonment instead of death.

The decision in Wiggins was central to the reasoning of Justice Souter in his majority opinion in Rompilla, supra. In Rompilla, defendant was accused, tried and convicted of the brutal murder of a barkeeper in Allentown, PA. During the penalty phase, the state prosecutor offered proof of three aggravating factors justifying the death penalty: that the murder was committed in the course of another felony; that the murder had involved torture; and that Rompilla had a long history of felony convictions. Rompilla’s public defenders offered brief testimony from five of Rompilla’s relatives asking for mercy, and from his 14-year-old son, who testified that he loved his father and would visit him in prison. (Defense counsel had also consulted with three mental health experts who offered their opinions during the guilt phase but were apparently not called in the sentencing phase.) The jury found that the aggravating factors offered by the state outweighed the mitigating factors offered by the defendant and ordered the death penalty.

Lower Court Proceedings

In the post-convictions proceedings in the state courts, Rompilla’s new attorneys argued that trial counsel had been ineffective in failing to present significant mitigating evidence about Rompilla’s childhood, his mental capacity and health, and his long-term alcoholism. The state courts found that trial counsel had investigated mitigation sufficiently and affirmed the conviction and the death penalty. Rompilla then petitioned for a writ of habeas corpus.

The federal district court agreed with the defense that defense counsel had failed to investigate “pretty obvious signs” that Rompilla had had a troubled childhood and suffered from mental illness and alcoholism, and had relied instead on Rompilla’s own description of an “unexceptional background.” The court found for Rompilla, but the Court of Appeals reversed. As Justice Souter summarized the decision of the Court of Appeals:

The majority found nothing unreasonable in the state court’s application of Strickland, given defense counsel’s efforts to uncover mitigation material. … Although the majority noted that the lawyers did not unearth the ‘useful information’ to be found in Rompilla’s ‘school, medical, police, and prison records,’ it thought the lawyers were justified in failing to hunt through these records when their other efforts gave no reason to believe the search would yield anything helpful. … The panel thus distinguished Rompilla’s case from Wiggins v. Smith, 539 U. S. 510 (2003). Whereas Wiggins’s counsel failed to investigate adequately, to the point even of ignoring the leads their limited enquiry yielded, the Court of Appeals saw the Rompilla investigation as going far enough to leave counsel with reason for thinking further efforts would not be a wise use of the limited resources they had.

But Justice Souter set a higher standard than the Court of Appeals. He described in detail the steps which defense counsel should have pursued in developing a stronger case for mitigation:

When new counsel entered the case to raise Rompilla’s post-conviction claims … they identified a number of likely avenues the trial lawyers could fruitfully have followed in building a mitigation case. School records are one example, which trial counsel never examined in spite of the professed unfamiliarity of the several family members with Rompilla’s childhood, and despite counsel’s knowledge that Rompilla left school after the ninth grade … Other examples are records of Rompilla’s juvenile and adult incarcerations, which counsel did not consult, although they were aware of their client’s criminal record. And while counsel knew from police reports provided in pretrial discovery that Rompilla had been drinking heavily at the time of his offense … and although one of the mental health experts reported that Rompilla’s troubles with alcohol merited further investigation … counsel did not look for evidence of a history of dependence on alcohol that might have extenuating significance.

Failure to Examine Prior Conviction File

Most harmful to the defense was counsel’s failure to examine and study Rompilla’s prior conviction file.

There is an obvious reason that the failure to examine Rompilla’s prior conviction file fell below the level of reasonable performance. Counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving Rompilla’s prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim’s testimony given in that earlier trial… [T]he prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried.

Knowing that the prosecution was going to use the file, the defense was required to study the file as well. Otherwise, they could not be sure that the prosecution would portray the facts of the prior conviction accurately, nor could they counter the impact of the prior conviction for a similar offense on their sentencing strategy stressing residual doubt. “Without making efforts to learn the details and rebut the evidence of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope.”

Justice Souter cited the controlling section of the ABA’s Standards for Criminal Justice (§4-4.1). He called these “terms no one could misunderstand in the circumstances of a case like this one:”

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities.

If defense counsel had studied the files, they would have found or been lead to a “range of mitigation leads” they were not aware of. In the files were records of Rompilla’s prior imprisonment. The prison records showed that Rompilla had quit school at 16, that he had a long record of arrests of an “assaultive nature and commonly related to overindulgence in alcoholic beverages,” that he tested at a third grade level of cognition, and that he had test results that mental health experts “would have viewed as pointing to schizophrenia and other disorders.” Further, his childhood showed a history of continuing alcoholism by his parents, physical abuse by his father, and his own early drinking problems.

This history enabled Justice Souter to conclude beyond any doubt that defense counsel’s lapses had prejudiced the defense, thus satisfying the second prong of the Strickland test (supra): “…the likelihood of a different result if the evidence had gone in ‘is sufficient to undermine confidence in the outcome’ actually reached at sentencing (quoting Strickland). …although we suppose it is possible that a jury could have heard it all and still have decided on the death penalty, that is not the test.”

No Rigid Per Se Rule

Justice Souter rejected the argument by the dissenting justices that his analysis would create a “rigid, per se” rule requiring defense counsel to do a complete review of any prior conviction introduced by the prosecution.

Counsel fell short here because they failed to make reasonable efforts to review the prior conviction file, despite knowing that the prosecution intended to introduce Rompilla’s prior conviction not merely by entering a notice of conviction into evidence but by quoting damaging testimony of the rape victim in that case. The unreasonableness of attempting no more than they did was heightened by the easy availability of the file at the trial courthouse, and the great risk that testimony about a similar violent crime would hamstring counsel’s chosen defense of residual doubt. …Other situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment.

In her concurring opinion, Justice O’Connor also made it clear that she was not voting for a rigid rule.

I write separately to put to rest one concern. The dissent worries that the Court’s opinion “imposes on defense counsel a rigid requirement to review all documents in what it calls the ‘case file’ of any prior conviction that the prosecution might rely on at trial.”… But the Court’s opinion imposes no such rule. Rather, today’s decision simply applies our longstanding case-by-case approach to determining whether an attorney’s performance was unconstitutionally deficient under Strickland v. Washington. … Trial counsel’s performance in Rompilla’s case falls short under that standard, because the attorneys’ behavior was not “reasonable considering all the circumstances.”

Justice O’Connor cited as one factor influencing her opinion that “the failure to review the file was the result of ‘inattention’ rather than of ‘an informed tactical decision about how the lawyers’ time would best be spent.’”

Lazar Emanuel is the Publisher of NYPRR

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.


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