[ Souter ]
[ OConnor ]
[ Kennedy ]
RONALD ROMPILLA, PETITIONER v.
BEARD, SECRETARY, PENNSYLVANIA
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE THIRD CIRCUIT
[June 20, 2005]
Justice OConnor, concurring.
I write separately to put to rest one concern. The dissent worries that the Courts 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. Post, at 1 (opinion of Kennedy, J.). But the Courts opinion imposes no such rule. See ante, at 14. Rather, todays decision simply applies our longstanding case-by-case approach to determining whether an attorneys performance was unconstitutionally deficient under Strickland v. Washington, 466 U.S. 668 (1984). Trial counsels performance in Rompillas case falls short under that standard, because the attorneys behavior was not reasonable considering all the circumstances. Id., at 688. In particular, there were three circumstances which made the attorneys failure to examine Rompillas prior conviction file unreasonable.
First, Rompillas attorneys knew that their clients prior conviction would be at the very heart of the prosecutions case. The prior conviction went not to a collateral matter, but rather to one of the aggravating circumstances making Rompilla eligible for the death penalty. The prosecutors intended not merely to mention the fact of prior conviction, but to read testimony about the details of the crime. That crime, besides being quite violent in its own right, was very similar to the murder for which Rompilla was on trial, and Rompilla had committed the murder at issue a mere three months after his release from prison on the earlier conviction. In other words, the prosecutor clearly planned to use details of the prior crime as powerful evidence that Rompilla was a dangerous man for whom the death penalty would be both appropriate punishment and a necessary means of incapacitation. Cf. App. 165166 (prosecutors penalty-phase argument). This was evidence the defense should have been prepared to meet: A reasonable defense lawyer would have attached a high importance to obtaining the record of the prior trial, in order to anticipate and find ways of deflecting the prosecutors aggravation argument.
Second, the prosecutors planned use of the prior conviction threatened to eviscerate one of the defenses primary mitigation arguments. Rompilla was convicted on the basis of strong circumstantial evidence. His lawyers structured the entire mitigation argument around the hope of convincing the jury that residual doubt about Rompillas guilt made it inappropriate to impose the death penalty. In announcing an intention to introduce testimony about Rompillas similar prior offense, the prosecutor put Rompillas attorneys on notice that the prospective defense on mitigation likely would be ineffective and counterproductive. The similarities between the two crimes, combined with the timing and the already strong circumstantial evidence, raised a strong likelihood that the jury would reject Rompillas residual doubt argument. Rompillas attorneys reliance on this transparently weak argument risked damaging their credibility. Such a scenario called for further investigation, to determine whether circumstances of the prior case gave any hope of saving the residual doubt argument, or whether the best strategy instead would be to jettison that argument so as to focus on other, more promising issues. Cf. Yarborough v. Gentry, 540 U.S. 1, 7 (2003) (per curiam); Bell v. Cone, 535 U.S. 685, 700 (2002) (noting that sound tactical judgment may sometimes call for omitting certain defense evidence or arguments).
Third, the attorneys decision
not to obtain Rompillas prior conviction file was not the
result of an informed tactical decision about how the
lawyers time would best be spent. Although
Rompillas attorneys had ample warning that the details of
Rompillas prior conviction would be critical to their
case, their failure to obtain that file would not necessarily
have been deficient if it had resulted from the lawyers
careful exercise of judgment about how best to marshal their
time and serve their client. But Rompillas attorneys did
not ignore the prior case file in order to spend their time on
other crucial leads. They did not determine that the file was
so inaccessible or so large that examining it would necessarily
divert them from other trial-preparation tasks they thought
more promising. They did not learn at the 11th hour about the
prosecutions intent to use the prior conviction, when it
was too late for them to change plans. Rather, their failure
to obtain the crucial file was the result of inattention,
not reasoned strategic judgment. Wiggins v.
Smith, 539 U.S.
510, 534 (2003). As a result, their conduct fell below
constitutionally required standards. See id., at 533
In the particular circumstances of
this case, the attorneys failure to obtain and review the
case file from their clients prior conviction did not
meet standards of reasonable professional
judgmen[t]. Id., at 691. Because the
Courts opinion is consistent with the