Amicus Curiae Brief — Rompilla v. Beard

(2) [ Siarene Caar OS—)

ocout US.

No. 04-5462 NOV 1 2 2004

eee _——

IN THE

Supreme Court of the Anited States

RONALD ROMPILLA,

Petitioner,

» §

JEFFREY A. BEARD, SECRETARY,

PENNSYLVANIA DEPARTMENT OF CORRECTIONS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE

OF THE AMERICAN BAR ASSOCIATION

IN SUPPORT OF PETITIONER

Of Counsel:

TERRI L. MASCHERIN

DAVID E. WALTERS

JARED O. FREEDMAN

ROBERT J. GREY, JR. *

President

AMERICAN BAR ASSOCIATION

321 N. Clark

Chicago, IL 60610

(312) 988-5000

* Counsel of Record

Attorneys for Amicus Curiae

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

i

QUESTIONS PRESENTED

This amicus brief will address the following questions

on certiorari:

1. Did the defendant receive effective representation

at capital sentencing where counsel did not review prior

conviction records counsel had been informed the

prosecution would use in aggravation, and where those

records would have provided mitigating evidence regarding

the defendant’s traumatic childhood and mental health

impairments?

2. Did the defendant receive effective representation

at capital sentencing where:

(a) counsel’s background mitigation

investigation was limited to conversations with a few

family members;

(b) the few people with whom counsel spoke

indicated to counsel that they did not know much

about the defendant and could not help with

background mitigation;

(c) other sources of background information,

including other family members, prior conviction

records, prison records, juvenile court records and

school records, were available but ignored by

counsel; and

(d) the records and other family members

would have provided compelling mitigating evidence

about the defendant’s traumatic childhood, mental

retardation and psychological _ disturbances.

TABLE OF CONTENTS

NTE exnresegenrneneninnsinesonssnsneieneseneenemensentd i

ee Ce ctncctntcienenicensnsnininnnennnnniatinl iv

INTEREST OF AMICUS CURIA ...........0ccserscsrcsssesesscsseesees l

INTRODUCTION_AND SUMMARY OF ARGUMENT.....4

I. THE ABA GUIDELINES REFLECT PREVAILING

PROFESSIONAL NORMS WITH RESPECT TO

INVESTIGATION OF A CAPITAL CASE AND

THUS ARE INDICATIVE OF

SEEDS cocecunsecsnensnesensiitcanseneaseessasnensenentiel 6

Il. UNDER THE ABA GUIDELINES, COUNSEL ARE

EXPECTED TO CONDUCT A THOROUGH

INVESTIGATION OF MITIGATING AND

AGGRAVATING EVIDENCE, INCLUDING A

THOROUGH INVESTIGATION OF THE

CLS RING cceesccensecessesssonnssneesecenensensnees 8

A. Counsel Has A Duty To Conduct A Thorough

Investigation In Preparation For The Penalty

. Counsel Has An Obligation To Investigate All

Reasonably Available Méitigating Evidence

Regarding The Client’s Background.................0000+ 12

. Counsel Has A Responsibility To Investigate The

RE TIN cccccneeentinccrenentsmnamesnveemmnnsinn 16

. Counsel’s Duty To Conduct A_ Thorough

Investigation Is Not Excused Merely Because The

Client Or Family Members Are Uncooperative. .....18

. Counsel Should Not Delegate To Experts The

Determination Of The Scope Of The

IIE wiicsisivsevisineciiiesatiaticsinianiienneiamamenenitinabananats 21

SIT sctnentsnsnussonsiesesnnsentcnummninsciinnenaiininnineniionsednitiaite 24

-_— — ee ee ee

iV

TABLE OF AUTHORITIES

CASES PAGE

Ainsworth v. Woodford, 268 F.3d 868

IP Enan: cae Acseaseindineestcnciapetonsieneiaminniasinitnitnsnsesiiuiiilieaads 15

Allen v. Woodford, 366 F.3d 823

(9th Cir. 2004)... ssicineiiesiinniacecieniniubtingiabbiadia 7,17

Baxter v. Thomas, 45 F.3d 1501 (11th Cir. 1995)............. 15

Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998)............. 23

Carter v. Bell, 218 F.3d 581 (6th Cir. 2000)........... 7, 15, 19

Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001) .......... 20

Dobbs v. Turpin, 142 F.3d 1383 (11th Cir. 1998)....... 19, 20

Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003)....... 19

Esslinger v. Davis, 44 F.3d 1515 (11th Cir. 1994)............ 17

Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995) ...0............000 15

Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003).... passim

Jermyn v. Horn, 266 F.3d 257 (3d Cir. 2001)................... 15

Kimmelman v. Morrison, 477 U.S. 365 (1986)............0000+++ 6

Lewis v. Lane, 832 F.2d 1446 (7th Cir. 1987).............000 18

v

Penry v. Lynaugh, 492 U.S. 302 (1988), rev'd on

other grounds, Atkins v. Virginia, 536 U.S.

ED iincctnsntininccnnntnanicnmiacniieieamiiamenpbieses 12

Roccisano v. Menifee, 293 F.3d 51 (2d Cir. 2002).............. 7

Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004)......... passim

Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002)........ 19, 20

Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004) ..............000 7

Smith v. Stewart, 140 F.3d 1263 (9th Cir. 1998)............... 19

Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999)............... 22

Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994) ............... 17

Strickland v. Washington, 466 U.S. 668 (1984)......... passim

Wiggins v. Smith, 539 U.S. 510 (2003) ..........ccccecccee passim

Williams v. Taylor, 529 U.S. 362 (2000)................. 6, 11,14

Woodson v. North Carolina, 428 U.S. 280 (1976)............ 12

AMERICAN BAR ASSOCIATION MATERIALS

Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases (1989)......... passim

Guidelines for the Appointment and Performance of

Dejense Counsel in Death Penalty Cases

EID cnissenniendstedadiameninnenininiianiaiesinnitinieds passim

vi

House of Delegates Resolution 122, Guidelines for

the Appointment and Performance of Counsel

in Death Penalty Cases (1989)........ccccccccccccesseseeeeees 2

Model Rules of Prof'l Conduct, R. 1.3 (2002) .......c.c0cc0000-. 8

Model Rules of Prof'l Conduct, R. 1.4 (2002) .....cccccccceseeee. 9

Model Rules of Prof’! Conduct,

ee ORT 8

Standards for Criminal Justice § 4-4.1 cmt.

EEE SOND RNA OMI OT Cee 9

Standards for Criminal Justice: Providing Defense

Services, § 5-1.2 cmt. (3d ed. 1992) 0.00... eee 2,3

Standards for Criminal Justice: Prosecution Function

and Defense Function, § 4-1.2(c) (3d ed.

Standing Comm. on Legal Aid & Indigent

Defendants Section of Criminal Justice

Section of Litigation, Report to the House of

ER NT Crm aa

Toward a More Just and Effective System of Review

in State Death Penalty Cases, 40 Am. U. L.

Ss Te Gee cosossnennidebiabiseiiasaibicchdapesidcapaiiacindeeaiadbacasidis 2

Vil

MISCELLANEOUS

Goodpaster, Gary, The Trial for Life: Effective

Assistance of Counsel in Death Penalty Cases,

eR Dee

Heaney, Lois, National Jury Project, Constructing a

I i inti aiintiesiadaatathinlicaiatamsias

Keller, Kit, Jndiana Death Penalty Manual (1985) .........

Mormnissey, Michael, /nvestigating the Death Case, in

Illinois Death Penalty Defense Manual 7-2

(Andres D. Lyon 64., 1968) .......0cccccccccccccsccsseccceees

BRIEF AMICUS CURIAE OF THE AMERICAN BAR

ASSOCIATION IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE'

The American Bar Association (“ABA”) is the world’s

largest voluntary professional membership organization and

the leading organization of the legal profession in the United

States. Its more than 408,000 members include prosecutors,

public defenders, private lawyers, legislators, law professors,

law enforcement and corrections personnel, law students, and

a number of non-lawyer “associates” in allied fields.”

The ABA’s mission is, in part, to serve the public and the

profession by advocating for the ethical and effective

representation of all clients. For nearly one hundred years,

the ABA has provided leadership in legal ethics and

professional responsibility, establishing the foundation for a

lawyer’s obligations to his client in all representations. in

1908, the ABA adopted the original Canons of Professional

Ethics; in 1969, the Model Code of Professional

Responsibility; and, in 1983, the ABA adopted the Model

' Pursuant to Rule 37.6, amicus curiae certifies that no counsel for a

party authored this brief in whole or in part and that no person or entity,

other than amicus, its members, or its counsel, has made a monetary

contribution to the preparation or submission of this brief. The parties

have consented to the filing of this brief. Their letters of consent have

been lodged with the Clerk of this Court.

? Neither this brief nor the decision to file it should be interpreted to

reflect the views of any judicial member of the American Bar

Association. No inference should be drawn that any member of the

Judicial Division Council has participated in the adoption or endorsement

of the position in this brief. This brief was not circulated to any member

of the Judicial Division Council prior to filing.

>

Rules of Professional Conduct, which were amended by the

work of the “Ethics 2000° Commission in February 2002.

The ABA has a well-established tradition of advocating

for the effective representation of clients in criminal cases in

general, and in capital cases in particular. The ABA takes no

position on the death penalty as a general matter. However,

the ABA has adopted numerous policies concerning the

administration of justice and the effective representation oi

criminal defendants. The ABA 1s especially concerned about

the effective representation of criminal defendants who might

be or have been sentenced to death.’ One of the several ABA

entities that focus on legal issues related to capital

punishment is the Special Committee on Death Penalty

Representation, which recruits, trains, and supports volunteer

counsel to represent death row inmates who lack lawyers.

In 1989, the ABA House of Delegates adopted

Resolution 122, Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases (hereinafter

the “ABA Guidelines”), which were designed to “amplify

previously adopted Association positions on effective

assistance of counsel in capital cases [and to] enumerate the

minimal resources and practices necessary to provide

effective assistance of counsel.” ABA Guidelines,’ intro. cmt.

See. eg. ABA Standards for Criminal Justice Providing Defense

Services, § 5-12 cmt. (3d ed. 1992) (“American Bar Association

resolutions have frequently and consistently taken positions supporting

the provision of quality representation by counsel in capital cases.”);

ABA House of Delegates Resolution 122, Guidelines for the Appointment

and Performance of Counsel in Death Penalty Cases (1989), American

Bar Ass'n, Toward a More Just and Effective System of Review in State

Death Penalty Cases, 40 Am. U.L. Rev. 1 (1990)

* The ABA Guidelines can be found at

http: www abanet org deathpenalty.

3

(1989).° In February 2003, the ABA House of Delegates

approved revisions to the ABA Guidelines to update and

expand upon the obligations of death penalty jurisdictions

and lawyers to ensure due process of law and justice.

Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases (2003) (hereinafter the

“Updated ABA Guidelines’).

Both versions of the ABA Guidelines are based on the

experiences of practitioners and ABA members who have

handled post-conviction cases on collateral review. They

reflect lessons learned from problems created by inadequate,

unprepared, and under-financed counsel who represented at

trial those accused of capital crimes. Today, the ABA calls

upon each death penalty jurisdiction to adopt the Updated

ABA Guidelines.

The ABA submits this brief as amicus curiae because the

ABA Guidelines may be helpful to this Court’s determination

whether counsel’s performance in preparing for the capital

sentencing hearing in this case was objectively reasonable in

light of prevailing professional norms.

* See also ABA Standards for Criminal Justice: Providing Defense

Services, § 5-1.2 cmt. at 12 (3d ed. 1992) (“These guidelines are

incorporated by reference into the [ABA Providing Defense Services

Standards]."); ABA Standards for Criminal Justice: Prosecution Function

and Defense Function, § 4-\.2(c) (3d ed. 1993) (“Defense counsel should

comply with the [ABA Guidelines.]”).

* The Updated Guidelines also appear at

http://www.abanet.org deathpenalty.

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

The decision of the Third Circuit Court of Appeals

reinstating Petitioner Ronald Rompilla’s death sentence

should be reversed. Trial counsel’s investigation did not

comply with prevailing professional norms such as those

reflected in the ABA Guidelines. The ABA Guidelines codify

longstanding standards prevalent in the profession for the

“minimal resources and practices necessary” for competent

representation of a client in a capital case. ABA Guidelines,

intro. cmt. Counsel’s conduct in this case fell far short of

what the ABA Guidelines require, for counsel failed to

investigate adequately either the mitigating or aggravating

evidence that was reasonably available.

As the ABA Guidelines demonstrate, lawyers handling

capital cases cannot make key strategic decisions in

consultation with their clients that are either constitutionally

or ethically sufficient without conducting a reasonably

complete and thorough background investigation. Lawyers

have an independent duty to see that this investigation is

conducted, and must not delegate the responsibility to others,

including experts hired by counsel. Lawyers also have a duty

to conduct a thorough background investigation even if the

client and his or her family members are not cooperative.

Lawyers and their clients must be properly informed with

regard to the many choices that must be made concerning the

guilt/innocence phase and the penalty phase of a capital trial.

They cannot act reasonably if they lack an informed basis for

choosing one defense over another, presenting some facts

over others, or pursuing one sentencing strategy over another.

In this case, a review of the reasonableness of counsel’s

investigation under the standards codified by the ABA

Guidelines suggests that counsel did not perform reasonably

in view of prevailing professional norms. Mr. Rompilla’s

5

counsel failed to conduct a basic background investigation

and to obtain records that were readily available; counsel

improperly delegated their responsibility to investigate to

experts; and counsel failed to conduct even a minimal

investigation of the aggravating evidence that the prosecution

gave notice it intended to introduce, which contained leads to

key mitigating evidence. Under the ABA Guidelines, counsel

cannot excuse their deficient investigation based on

uncooperativeness of the defendant or his family.

Long before the ABA Guidelines were promulgated, the

profession recognized that competent counsel must

investigate the range of mitigating evidence that may be

available, and must also investigate the aggravating evidence

likely to be offered by the State. The ABA Guidelines

cautioned lawyers against the consequences of incomplete

investigations. The standard of care set forth in the ABA

Guidelines resulted from the ABA’s study of what

reasonably performing lawyers were doing and what

ineffectively performing lawyers were not doing.

The ABA Guidelines and the Updated Guidelines are not

proffered to this Court as a substitute for counsel’s own

determination of the necessary scope of investigation in light

of the unique character and background of his or her client.

Instead, they can serve as a starting point, reflecting a

consensus within the legal profession regarding a minimum

standard of reasonable performance, from which a court can,

under the circumstances of a particular capital case,

determine what investigation was necessary to fulfill

counsel’s obligations to the client. In this case, counsel did

not meet prevailing professional norms reflected in the ABA

Guidelines.

6

ARGUMENT

I. THE ABA GUIDELINES REFLECT PREVAILING

PROFESSIONAL NORMS WITH RESPECT TO

INVESTIGATION OF A CAPITAL CASE AND

THUS ARE INDICATIVE OF REASONABLENESS.

This Court has long recognized that “[p]revailing norms

of practice as reflected in American Bar Association

standards and the like, e.g. ABA Standards for Criminal

Justice . . . are guides to determining what is reasonable.”

Strickland yv. Washington, 466 U.S. 668, 688 (1984);

Williams v. Taylor, 529 U.S. 362, 396 (2000) (relying on

ABA Standards for Criminal Justice in finding counsel

ineffective). Even before the promulgation of the ABA

Guidelines in February 1989, this Court had recognized the

importance of ABA Standards, including the importance of

defense counsel’s conducting a thorough investigation, a

mandate in line with the ABA Guidelines. See, e.g.,

Strickland, 466 U.S. at 691; Kimmelman vy. Morrison, 477

U.S. 365, 385 (1986).

The first ABA Guidelines were adopted in February 1989. They

reflect prevailing norms in the profession that have existed since the early

1980s. As the ABA made clear in 1989, “the Guidelines ampliflied]

previously adopted Association positions on effective assistance of

counsel in capital cases and the need for adequate compensation and

support.” ABA Standing Comm. on Legal Aid & Indigent Defendants

Section of Criminal Justice Section of Litigation, Report to the House of

Delegates, at 2 (1989); see Hamblin v. Mitchell, 354 F.3d 482, 487 (6th

Cir. 2003) (ABA Guidelines did not “represent norms newly discovered

after Strickland”). The (/pdated ABA Guidelines reinforce the same

minimal standards of investigation as the ABA Guidelines. They provide

more extensive language and examples regarding the rationale for the

policy behind the norms and are cited in this brief to explain the ABA’s

policy more thoroughly.

-

This Court has specifically recognized the ABA

Guidelines as examples of “well-defined norms” of

reasonable conduct by defense counsel with respect to the

investigation of mitigating and aggravating evidence in

capital cases. Wiggins v. Smith, 539 U.S. 510, 524 (2003).

In Wiggins, this Court relied on the ABA Guidelines as an

appropriate benchmark for determining whether counsel’s

conduct “fell below an objective standard of reasonableness”

under Strickland. Wiggins, 539 U.S. at 521-24. The Court

concluded that where “counsel abandoned their investigation

of petitioner's background after having acquired only

rudimentary knowledge of his history from a narrow set of

sources,” counsel did not meet the norms expressed in the

ABA Guidelines. Id. at 524 (citing ABA Guidelines

§ 11.4.1(C) and § 11.8.6).

There is also consensus among the lower federal courts

that the ABA Guidelines evidence prevailing norms against

which counsel’s conduct should be measured.

Based on this history and precedent, the ABA submits

that its Guidelines are indicative of prevailing professional

* For example, the Sixth Circuit has concluded that “the ABA

standards for counsel in death penalty cases provide the guiding rules and

standards to be used in defining the ‘prevailing professional norms’ in

ineffective assistance cases,” adding “clarity, detail and content to the

more generalized and indefinite 20-year-old language of Strickland.”

Hamblin, 354 F.3d at 486; see also Smith v. Mullin, 379 F.3d 919, 942

(10th Cir. 2004) (citing ABA standards as guides for determining

reasonable attorney performance); Allen v. Woodford, 366 F.3d 823, 845

(9th Cir. 2004) (noting Supreme Court's reliance on the ABA Guidelines

in Wiggins); Roccisano v. Menifee, 293 F.3d 51, 60 (2d Cir. 2002)

(referring to the ABA Standards as “well established principles” of

effective assistance of counsel); Carter v. Bell, 218 F.3d 581, 596-600

(6th Cir. 2000) (relying on ABA Guidelines and concluding that counsel's

failure to investigate defendant's family, social or psychological

background constituted ineffective assistance of counsel).

8

norms by which defense counsel’s conduct should be

evaluated for reasonableness under Strickland. Because they

reflect professional norms that prevailed in the 1980s, the

ABA Guidelines are an appropriate benchmark against which

counsel’s conduct should be judged 1n this case.

Il. UNDER THE ABA GUIDELINES, COUNSEL ARE

EXPECTED TO CONDUCT A THOROUGH

INVESTIGATION OF MITIGATING AND

AGGRAVATING EVIDENCE, INCLUDING A

THOROUGH INVESTIGATION OF THE

CLIENT’S BACKGROUND.

Lawyers handling capital cases cannot make key strategic

decisions in consultation with their clients that are either

constitutionally or ethically sufficient without conducting a

reasonably complete and thorough background investigation

including investigating both mitigating and aggravating

evidence. Lawyers have an independent duty to see that this

investigation is conducted, and must not delegate the

responsibility to others, including experts hired by counsel.

Lawyers also have a duty to conduct a thorough background

investigation even if the client and his or her family members

are not cooperative.

A. Counsel Has A Duty To Conduct A Thorough

Investigation In Preparation For The Penalty

Phase.

A lawyer has an obligation to act with reasonable

diligence and promptness in representing his or her client.

See Model Rules of Prof'l Conduct R. 1.3 (2002). A

lawyer’s execution of that obligation at all times during the

representation enables the client “to participate intelligently

in decisions concerning the objectives of the representation

and the means by which they are to be pursued.” /d. at R.

1.4 cmt. 5. In the context of representing a client in a capital

case, and the penalty phase in particular, the obligation to act

9

with reasonable promptness and diligence applies directly to

counsel’s decisions to investigate the client’s background.

To satisfy their ethical obligations, counsel must pursue a

thorough investigation of all reasonably available

background information. Only when fully armed with the

reasonably available information obtained from a thorough

investigation can counsel effectively advise the client with

respect to different courses of action and comport with Model

Rule 1.4. Id. atR. 14.

The ABA Guidelines specifically address how counsel

should fulfill those ethical obligations in the context of

defending a capital case. The Guidelines reflect the fact that

prevailing professional norms in death penalty cases require

that “at every stage of the proceedings, counsel has a duty to

investigate the case thoroughly.” Updated ABA Guidelines

§ 10.7 cmt. (citations omitted), The ABA Guidelines

recommend careful preparation by counsel for the penalty

phase through investigation, consultation with the client,

analysis of the prosecution’s case and evaluation of all

reasonably available evidence in mitigation. See ABA

Guidelines § 11.4.1, § 11.8.3, § 11.8.5, and § 11.8.6.

Specifically, the Guidelines require counsel to conduct

sufficient investigation “to discover all reasonably available

mitigating evidence and evidence to rebut any aggravating

evidence that may be introduced by the prosecutor.” ABA

Guidelines § 11.4.1(C); see also § 11.8.6.; see also Wiggins,

539 U.S. at 524-525.

Prior to the adoption of the ABA Guidelines, the ABA

promulgated standards emphasizing that counsel has the

responsibility in a capital case to conduct a thorough

investigation of the defendant’s background -- including

investigating information relevant to sentencing -- from the

inception of the representation. See ABA Standards for

Criminal Justice § 4-4.1 cmt. (2d ed. 1980) (“It is the duty of

10

the lawyer to conduct a prompt investigation into the

circumstances of the case and to explore all avenues leading

to the facts relevant to the menits of the case and the penalty

in the event of conviction.”).” “Counsel cannot responsibly

advise a client about the ments of different courses of action,

the client cannot make informed decisions, and counsel

cannot be sure of the client's competency to make such

decisions, unless counsel has first conducted a thorough

9

The notion that effective performance in a capital case requires a

thorough investigation was widely accepted among practitioners

throughout the 1980s. Articles and attorney handbooks from that tume

stress that defense counsel in a capital case should investigate the

defendant's background, including by reviewing a defendant's prior

conviction records, prison records, juvenile court records, school records,

and records relating to childhood abuse and substance abuse. See Gary

Goodpaster, The Trial for Life Effective Assistance of Counsel in Death

Penalty Cases, 58 N.Y.U. L. Rev. 299, 323-24 (1983) (“Trial counsel has

a duty to imvestigate the client's life history, and emotional and

psychological make-up ... . There must be an inquiry into the client's

childhood, upbringing, education, relationships, friendships, formative

and traumatic experiences, personal psychology and present feelings. __ .

The importance of this investigation, and the thoroughness and care with

which it is conducted, cannot be overemphasized.”); Lois Heaney,

National Jury Project, Constructing a Social History, H49-HSO (1983) (a

social history of a defendant should include investigating school and

other imstitutional records, as well as any experiences of child abuse,

involvement with criminal justice, mental health or social service

agencies), Michael Morrissey, /nvestigating the Death Case, in Illinois

Death Penalty Defense Manual, at 7-9 to 7-13 (Andrea D. Lyon ed.,

1988) (describing need for defense counsel investigating penalty phase to

obtain school and mulitary records, alcohol and drug history, juvenile

court records, prison records, mental health records, criminal records);

Kit Keller, /ndiana Death Penalty Manual, at 7 § 1-13 to 1-14 (1985)

(mvestigation into mitigating factors should identify records relating to

childhood trauma,-education, employment, military service, physical and

mental health, and substance abuse) (citing Butler, Ohio Death Penalty

Manual (1981)).

11

investigation with respect to both phases of the case.”

Updated ABA Guidelines § 10.7 cmt. (citations omitted); see

also Hamblin v. Mitchell, 354 F.3d 482, 492 (6th Cir. 2003).

Indeed, at no time is the thoroughness of counsel's

investigation into the client’s background more critical than

in preparation for the penalty phase of a capital case. See

ABA Guidelines § 11.4.1 cmt. (“The duty is intensified . . . by

the unique nature of the death penalty(.]”). This Court has

said that an investigation by counsel that may be adequate for

the guilt/innocence phase may be wholly inadequate for the

penalty phase. See e.g., Williams, 529 U.S. at 395. In both

Williams and Wiggins, this Court stressed that counsel cannot

fulfill his or her constitutional duty without conducting a

thorough investigation of the available mitigating evidence.

See, e.g., Williams, 529 U.S. at 396 (counsel failed to fulfill

his obligation to conduct a thorough investigation of the

defendant's background because he failed to uncover and

present mitigating evidence); Wiggins, 539 U.S. at 522

(counsel’s failure to present mitigating evidence of

defendant's background prejudiced sentencing decision).

In this case, counsel’s conduct fell far short of prevailing

professional norms as reflected in the ABA Guidelines.

Counsel not only failed to conduct a basic background

investigation and obtain records that were readily available,

they also did not conduct a minimal investigation into the

aggravating evidence that the prosecution gave notice it

intended to introduce at sentencing. The record shows that

had counsel conducted a minimal investigation of the

aggravating evidence, they would have uncovered much in

that process that actually would have been mitigating.

Counsel here did not claim that they conducted a

thorough investigation and made a strategic decision not to

offer more evidence in mitigation. See, e.g., Strickland, 466

U.S. at 673; Wiggins, 539 U.S. at 521. Quite to the contrary,

12

trial counsel testified at the post-conviction hearing that they

would have presented other mitigating evidence if they had

been aware of it. Rompilla v. Horn, 355 F.3d 233, 279-281

(3d Cir. 2004) (Sloviter, J., dissenting). Counsel simply did

not do enough background investigation to make the

necessary strategic decisions. See Wiggins, 539 US. at 521-

22, Strickland, 466 US. at 690-91.

B. Counsel Has An Obligation To Investigate All

Reasonably Available Mitigating Evidence

Regarding The Client's Background.

A thorough investigation must include an investigation of

the client's background, for the Eighth Amendment mandates

consideration of the “character and record of the offender” as

part of the capital sentencing process. Woodson v. North

Carolina, 428 U.S. 280, 304 (1976). “[I]f the sentencer is to

make an individualized assessment of the appropriateness of

the death penalty, ‘evidence about the defendant's

background and character is relevant because of the belief,

long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be

less culpable than defendants who have no such excuse.””

Penry v. Lynaugh, 492 US. 302, 319 (1989) (quoting

California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor,

J., concurnng)), rev d on other grounds, Atkins v. Virginia,

536 U.S. 304 (2002).

To prepare effectively for the penalty phase, counsel

should explore at a minimum, all reasonably available

sources of mitigation evidence. See generally ABA

Guidelines § 11.4.1. A reasonable background investigation

for the penalty phase includes a review of all reasonably

available documents and records. Updated ABA Guidelines

§ 10.7 cmt.; see also ABA Guidelines § 11.4.1(D\{2\\c). The

ABA Guidelines advise that counsel should even “seek

13

necessary releases for securing confidential records{.|" ABA

Guidelines § 11.4.1(D\2\(d). Those background “[rjecords -

from courts, government agencies, the military, employers,

etc. - can contain a wealth of mitigating evidence,

documenting or providing clues to childhood abuse,

retardation, brain damage, and/or mental illness, and

corroborating witness’ recollections.” Updated ABA

Guidelines § 10.7 cmt. (citations omitted).

As the ABA Guidelines explain, sources of mitigation

information for the penalty phase may include: charging

documents, interviews with the client, interviews with family

members, interviews with witnesses, interviews with others

familiar with the client's life history, police reports and other

physical evidence in possession of the police, review of the

scene, the client’s background records, and expert witnesses.

ABA Guidelines § 11.4.1(D). Counsel should research those

sources to develop and consider all reasonably available

mitigation evidence regarding the client in the following

areas:

medical history, (mental and physical illness or

injury, alcohol and drug use, birth trauma, and

developmental delays); educational history

(achievement, performance and behavior); special

educational needs (including cognitive limitations

and learning disabilities); military history (type

and length of service, conduct, special training);

employment and training history (including skills

and performance, and barriers to employability);

family and social history (including physical,

sexual or emotional abuse); pnor adult and

juvenile record; pmor correctional experience

(including conduct on supervision and in the

institution, education or training, and clinical

services); and religious and cultural influences.

14

ABA Guidelines § 11.4.1, see also § 11.8.6 (B); Updated

ABA Guidelines § 10.7 cmt. (“Counsel should use all

appropriate avenues . . . to obtain all potentially relevant

information pertaining to the client, his or her siblings and

parents, and other family members, including but not limited

to: a. school records, b. social service and welfare records, c.

juvenile dependency or family court records, d. medical

records, e. military records, f. employment records, g.

criminal and correctional records, h. family birth, marriage,

and death records, i. alcohol and drug abuse assessment or

treatment records, and j. INS records”). If counsel's

interviews with the client do not immediately suggest that

relevant mitigation evidence is available, or if the client does

not want to put forth mitigating evidence, counsel should

nonetheless investigate all available sources.

This Court and other courts have emphasized that

obtaining available records pertaining to the client's

background is a critical element of investigation in death

penalty cases. In Wiggins, this Court held that the lower

court unreasonably applied Strickland in part because

defense counsel’s investigation did not extend beyond the

pre-sentence investigation report and the Department of

Social Services’ records when other records, of the kind

recommended by the ABA Guidelines, were available.

Wiggins, 539 U.S. at 530-31. In Williams, this Court found

that counsel was ineffective where they “failed to conduct an

investigation that would have uncovered extensive records

graphically describing Williams’ nightmarish childhood, not

because of any strategic calculation, but because they

incorrectly thought that state law barred access to such

records.” Williams, 529 U.S. at 365. There is consensus in

the lower federal courts that counsel must obtain background

records in order to conduct a constitutionally sufficient

investigation. See Hamblin, 354 F.3d at 491 (counsel failed

to review client’s mental health records, school records, and

15

IQ tests); Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir.

2001) (“even though [counsel] obtained school records,

counsel failed to examine [. . .] employment records, medical

records, prison records, past probation reports, and military

records”); Jermyn v. Horn, 266 F.3d 257, 307 (3d Cir. 2001)

(counsel failed to obtain school records that disclosed

childhood abuse); Carter v. Bell, 218 F.3d 581, 588-89 (6th

Cir. 2000) (counsel failed to obtain a release from client to

view prison records, and did not seek any other available

records regarding the client or his family); Glenn v. Tate, 71

F.3d 1204, 1208 (6th Cir. 1995) (counsel failed to examine

the client’s school, medical, mental health, or probation

records); Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir.

1995) (counsel failed to request hospital, school, and child

welfare records).

In this case, Mr. Rompilla’s counsel failed to conduct the

most basic of mitigation investigations suggested by the

ABA Guidelines. Counsel failed to obtain fundamental

records of Mr. Rompilla’s background, including school

records, and records of his prior adult and juvenile

convictions, all of which were readily available to tnal

counsel in close proximity to the courtroom. See Rompilla,

355 F.3d at 273-74, 277, 281-82 (Sloviter, J., dissenting).

Counsel also failed to interview several key family members

who knew important mitigation information. /d. at 279-81.

Even when counsel interviewed some members of the family,

counsel failed to inquire about the client’s past. /d.

While this Court has noted that it must avoid the

“distorting effects of hindsight.” Strickland, 466 U.S. at 689,

the records that counsel failed to obtain showed: that Mr.

Rompilla had experienced an extremely traumatic childhood

under conditions of extreme poverty, parental neglect and

abuse; that his IQ was repeatedly found to be in the mentally

retarded range, and he was not able to advance functionally

16

past the third grade level; that he had demonstrated serious

mental health abnormalities on _ scales measuring

schizophrenia, paranoia, neurosis and obsessive/compulsive

disorders; and that he had exhibited a history of debilitating

alcoholism. Rompilla, 355 F.3d at 273-74, 278-79, 281-82,

284 (Sioviter, J., dissenting). The testimony that counsel

should have obtained from other family members would have

bolstered all of that evidence. /d. at 279.

C. Counsel Has A Responsibility To Investigate The

Aggravating Evidence.

Counsel’s duty to investigate for the penalty phase of a

capital tnal includes the duty to conduct a reasonable

investigation of potential aggravating factors that could be

offered by the prosecution. The ABA Guidelines provide that

“[t]he investigation for preparation of the sentencing phase . .

. Should comprise efforts to discover all reasonably available

... evidence to rebut any aggravating evidence that may be

introduced by the prosecutor.” ABA Guidelines § 11.4.1(C).

Counsel shonld investigate areas that may relate to

aggravation “at the earliest possible [time].”” ABA Guidelines

§ 11.8.5(A). The importance of investigating potentially

aggravating evidence at the earliest possible time is twofold.

First, the possible aggravating evidence may contain leads

that counsel can use to develop mitigating evidence. Second,

“| bjecause the scope of evidence admissible in mitigation is

generally broader than that admissible in aggravation,”

investigating the potential aggravating evidence will prepare

counsel to object at sentencing to “inadmissible evidence

proffered by the prosecutor.” ABA Guidelines § 11.8 cmt.

In Wiggins, this Court quoted from the ABA Guidelines

and said that reasonable counsel should seek “‘all reasonably

available .. . evidence to rebut any aggravating evidence that

may be introduced.” Wiggins, 539 U.S. at 524. This Court

wrote that “in assessing the reasonableness of an attorney’s

17

investigation, . . . a court must consider not only the quantum

of evidence already known to counsel, but also whether the

known evidence would lead a reasonable attorney to

investigate further.” Jd. at 525-26. That is particularly

important with respect to the investigation of aggravating

evidence.

Several lower federal courts, as well, have cited ABA

Guidelines as evidence of professional norms concerning the

investigation of aggravating evidence. Allen v. Woodford,

366 F.3d 823, 844-45 (9th Cir. 2004) (investigations in the

penalty phase’ of a capital case should include “efforts to

discover all reasonably available . . . evidence to rebut any

aggravating evidence that may be introduced by the .

prosecutor”); Hamblin, 354 F.3d at 490 (same); Starr v.

Lockhart, 23 F.3d 1280, 1285 (8th Cir. 1994) (“basic

concerns” of capital counsel “are to neutralize the

aggravating circumstances . . . and to present mitigating

evidence”; counsel was ineffective because he failed to

challenge aggravating factors).

In most cases, investigation of aggravating evidence will

involve at least a thorough review of the defendants’ prior

convictions and juvenile convictions.

Counsel must . . . investigate prior convictions,

adjudications, or unadjudicated offenses that

could be used as aggravating circumstances or

otherwise come into evidence. If a prior

conviction is legally flawed, counsel should seek

to have it set aside. Counsel may also find

extenuating circumstances that can be offered to

lessen the weight of a conviction, adjudication, or

unadjudicated offense.

Updated ABA Guidelines § 10.7 cmt. (citations omitted); see

also Esslinger v. Davis, 44 F.3d 1515, 1529-30 (11th Cir.

1995) (counsel failed to investigate non-capital defendant’s

18

criminal record, which was used to enhance sentence); Lewis

v. Lane, 832 F.2d 1446, 1453-58 (7th Cir. 1987) (counsel

failed to investigate portions of capital defendant’s criminal

record that were used to establish an aggravating factor). A

review of the records from the client’s prior convictions may

provide valuable clues concerning mental health, or

concerning other witnesses who possess potential mitigating

testimony that might be offered in response to the

aggravating evidence. See Updated ABA Guidelines § 10.7

cmt.; see also Wiggins, 539 U.S. at 527 (in assessing

reasonableness, a court must consider “whether the known

evidence would lead a reasonable attorney to investigate

further’).

In this case, had counsel conducted even a minimal

investigation into the aggravating evidence that the

prosecution gave notice it intended to introduce, counsel

would have discovered key mitigating evidence. The

prosecution gave notice before trial that it intended to offer

evidence of Mr. Rompilla’s criminal record in aggravation.

The records from Mr. Rompilla’s prior conviction and time

in prison were available in the same courthouse where the

trial occurred. Rompilla, 355 F.3d at 282. If counsel had

obtained those records, Mr. Rompilla’s counsel would have

obtained leads indicating that it was necessary to investigate

the history of their client’s abuse by his family, alcoholism,

neuropsychological problems and mental retardation. It

would have been apparent that this evidence could be used in

mitigation.

D. Counsel’s Duty To Conduct A Thorough

Investigation Is Not Excused Merely Because The

Client Or Family Members Are Uncooperative.

The responsibility of conducting a thorough investigation

in preparation for the capital sentencing proceeding rests

solely with defense counsel. ABA Guidelines § 11.4.1(A).

19

That duty is separate from, and a necessary predicate to, the

client’s ultimate decision whether to present available

mitigating evidence at the sentencing hearing. The duty also

exists regardless of the cooperation counsel receives from the

client or the client’s family in gathering mitigation evidence

or in investigating aggravation evidence.

It is not uncommon for clients facing the death penalty to

be recalcitrant or otherwise unhelpful with respect to the

penalty phase investigation. See, e.g., Douglas v. Woodford,

316 F.3d 1079, 1087 (9th Cir. 2003); Silva v. Woodford, 279

F.3d 825, 839-41 (9th Cir. 2002); Carter, 218 F.3d at 596;

Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir. 1998); Dobbs

v. Turpin, 142 F.3d 1383, 1387 (11th Cir. 1998).

Counsel should bear in mind that much of the

information that must be elicited for the

sentencing phase investigation is very personal

and may be extremely difficult for the client to

discuss. . . . Obtaining such information [like

childhood sexual abuse] typically requires

overcoming considerable barriers, such as shame,

denial, and repression, as well as other mental or

emotional impairments from which the client may

suffer.

Updated ABA Guidelines § 10.7 cmt.

The fact that it may be difficult to elicit this personal

information does not excuse counsel from the duty to ask the

client and others all questions necessary to probe for

mitigating evidence, and to investigate through other sources,

like school records, records from social service agencies,

military records, prison records, and records from other

criminal convictions. “[I]f a client forecloses certain avenues

of investigation, it arguably becomes even more incumbent

upon trial counsel to seek out and find alternative sources of

information and evidence, especially in the context of a

20

capital murder trial.” Silva, 279 F.3d at 847; see also

Coleman v. Mitchell, 268 F.3d 417, 449-50 (6th Cir. 2001)

(“[D]efendant resistance to disclosure of information does

not excuse counsel’s duty to independently investigate.’’);

Carter, 218 F.3d at 596 (“The sole source of mitigating

factors cannot properly be that information which defendant

may volunteer; counsel must make some effort at

independent investigation in order to make a reasoned,

informed decision as to their utility.”’).

Moreover, while the decision whether to present to the

fact finder any mitigation evidence may rest ultimately with

the client, the ABA Guidelines make clear that “[t)he

investigation for preparation of the sentencing phase should

be conducted regardless of any initial assertion by the client

that mitigation is not to be offered.” ABA Guidelines

§ 11.4.1(C). See also Dobbs, 142 F.3d at 1388 (“[L]awyers

may not ‘blindly follow’ [clients’ commands not to present

mitigating evidence]. Although the decision whether to use

mitigating evidence is for the client, . . . ‘the lawyer first

must evaluate potential avenues and advise the client of those

offering possible merit.”””) (quoting Thompson v. Wainwright,

787 F.2d 1447, 1451 (11th Cir. 1986)).

Family members and others who know the client

personally can prove a reliable and valuable resource in the

penalty phase investigation. Updated ABA Guidelines

§ 10.11 cmt. (those with personal knowledge of the

defendant “can provide vivid first-hand accounts of the

poverty and abuse that characterize the lives of many capital

defendants”); see also ABA Guidelines § 11.8.3(F)(1)

(counsel should investigate the “client’s life and

development, from birth to the time of sentencing”)

However, in some instances, those individuals do not assist

the investigation, perhaps because they do not trust counsel,

do not understand what information may be helpful to the

21

mitigation case, or simply have no direct knowledge of

mitigating evidence. See Updated ABA Guidelines § 10.7

cmt. (family members may suffer from the same impairments

as the client). This may be the case particularly where a

client’s past includes abuse, troubling medical history, or

clear signs of mental deficiency.

—————

In this case, counsel did not interview all of the family

witnesses apparently because the client and some family

witnesses were unhelpful. Rompilla, 355 F.3d at 279-81

(Sloviter, J., dissenting). There is also evidence that even

when counsel interviewed some members of the family,

counsel failed to inquire about the client’s past. /d.

Counsel’s deficient performance cannot be excused by

uncooperativeness on the part of the defendant and his

family. That lack of cooperation made it all the more

important that counsel investigate other sources of

mitigation. Counsel should not assume that interviews

yielding little in the way of mitigation evidence equate with

the absence of such evidence. Quite the opposite. If

interviews with family members are not fruitful in the way of

mitigation information, counsel should intensify their search

for background records of the client and investigate other

potential mitigation sources. Counsel also should attempt to

interview other extended family members, and “virtually

everyone else who knew the client and his family, including

neighbors, teachers, clergy, case workers, doctors,

correctional, probation, or parole officers, and others.”

Updated ABA Guidelines § 10.7 cmt. (citations omitted); see

also ABA Guidelines § 11.8.3(F)(1).

E. Counsel Should Not Delegate To Experts The

Determination Of The Scope Of The Investigation.

Defense counsel should consult with experts in

preparation for the penalty phase of a capital trial, for expert

witnesses are an important component of the penalty phase.

22

Areas in which experts may be helpful include: deciphering

the prosecution’s aggravation case; rebutting the

prosecution’s aggravation case; and presenting mitigation

topics in defense counsel’s case. ABA _ Guidelines

§ 11.4.1(D)(7). Experts can also be used “to provide

medical, psychological, sociological, cultural or other

insights into the client’s mental and/or emotional state and

life history that may explain or lessen the client’s culpability

for the underlying offense(s); to give a favorable opinion as

to the client’s capacity for rehabilitation, or adaptation to

prison; to explain possible treatment programs; or otherwise

support a sentence less than death{.]” Updated ABA

Guidelines § 10.11. However, ‘counsel cannot, consistent

with prevailing professional norms, delegate his or her duty

to investigate to experts.

The duty to investigate remains with counsel, regardless

whether counsel consults with experts. See ABA Guidelines

§ 11.4.1. Counsel! must not simply delegate the

responsibility for conducting a thorough investigation of the

client’s background to expert witnesses. Nor should counsel

assume that experts will independently obtain background

information needed to carry out their role effectively. Rather

than delegate the duty to investigate to experts, counsel

should ensure that experts are apprised of and provided all

reasonably available information necessary and helpful to the

expert’s role in the mitigation case. /d.

This Court and others have echoed the ABA’s

longstanding view that counsel has an “obligation to conduct

a thorough investigation of the defendant’s background,”

whether or not she hires expert witnesses. Wiggins, 539 U.S.

at 522; see Smith v. Stewart, 189 F.3d 1004, 1012 (9th Cir.

1999) (“A lawyer who should have known but does not

inform his expert witnesses about essential information going

to the heart of the defendant’s case for mitigation does not

23

function as ‘counsel’ under the Sixth Amendment.’’); see also

Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998)

(“When experts request necessary information and are denied

it, when testing requested by expert witnesses is not

performed, and when experts are placed on the stand with

virtually no preparation or foundation, a capital defendant

has not received effective penalty phase assistance of

counsel’’).

In this case, Mr. Rompilla’s counsel attempted to justify

their failure to investigate records of their client’s

background by claiming that they relied on experts (who may

have been engaged in preparation for the guilt/innocence

phase and not the penalty phase), to tell them what records

were needed for the experts’ analysis. Rompilla, 355 F.3d at

280-81 (Sloviter, J., dissenting). Although experts may

request certain documents or access to particular witnesses to

complete their analysis, counsel should not assume that any

potential source of mitigation evidence is not important

because it was not requested by the expert. Counsel should

instead independently seek to procure through investigation

other mitigating evidence that may enhance the expert’s

analysis. Counsel’s reliance upon experts to define the scope

of their mitigation investigation was not in accordance with

prevailing professional norms reflected in the ABA

Guidelines.

24

CONCLUSION

The ABA respectfully submits that the decision of the

Third Circuit Court of Appeals should be reversed.

Respectfully submitted,

TERRI L. MASCHERIN ROBERT J. GREY, Jr.*

DAVID E. WALTERS President

JARED O. FREEDMAN American Bar Association

321 N. Clark

Chicago, IL 60610

312-988-5000

November 12, 2004 *Counsel of Record