Rompilla v. Horn ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-25-2004
Rompilla v. Horn
Precedential or Non-Precedential: Precedential
Docket No. 00-9005
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Recommended Citation
"Rompilla v. Horn" (2004). 2004 Decisions. Paper 939.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/939
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
00-9005/9006
RONALD ROMPILLA
v.
MARTIN HORN, COMMISSIONER,
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS
Martin Horn,
Appellant/Cross-Appellee
SUR PETITION FOR REHEARING
Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD,
ALITO, ROTH, McKEE, BARRY, AMBRO, FUENTES, SMITH,
and CHERTOFF Circuit Judges, and STAPLETON, Senior Circuit Judge*
The petition for rehearing filed by appellee/cross appellant in the above entitled
case having been submitted to the judges who participated in the decision of this court
and to all the other available circuit judges of the circuit in regular active service, and no
judge who concurred in the decision having asked for rehearing, and a majority of the
circuit judges of the circuit in regular active service not having voted for rehearing by the
__________________
*Voted as to panel rehearing only.
court en banc, the petition for rehearing is denied. Judges Sloviter and McKee would
have granted rehearing en banc for the reasons set forth in the dissent. Judges Nygaard,
Ambro and Smith would have granted rehearing en banc.
By the Court,
/s/ Samuel A. Alito, Jr.
Circuit Judge
DATED: 25 February 2004
OPINION SUR DENIAL OF REHEARING
NYGAARD, J.,
I share the concerns eloquently expressed by my colleague, Judge Sloviter, and
agree fully with the analysis she offers in her dissenting opinion. Had I been on the panel,
I would have joined her to form a majority. Now on petition for en banc review,
however, I wish only to add my thoughts to hers why I firmly believe we should rehear
this appeal en banc. The Rules provide that rehearing en banc is appropriate when a case
"involves a question of exceptional importance." Fed. R. App. P. 35(a). To me, this case
raises such a question.1 The issue before us implicates the most fundamental and
important of all rights — to be represented by effective counsel. All other rights will turn
to ashes in the hands of a person who is without effective, professional, and zealous
1
Indeed, I suggest that every death case in which a divided panel of the court
reverses a well-reasoned decision of the District Court that granted a writ of habeas
corpus, should raise in our minds “a question of exceptional importance.” As the Court
has said, “death is different.” See, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2554 (2003).
representation when accused of a crime. In my view, counsel here failed in all three
areas.
Over seventy years ago, the United States Supreme Court reviewed a sensational
criminal trial. Nine poor, young African American men were facing death sentences.
They had been convicted of raping two white women in Alabama. The issue before the
Supreme Court was simple: were the defendants entitled to the effective assistance of
counsel as part of their constitutional right to due process? In a landmark ruling, Justice
Sutherland famously declared that defendants in capital cases have the right to the
“guiding hand of counsel at every step in the proceedings against [them].” Powell v.
Alabama, 287 U.S. 45, 69 (1932); see also Dan T. Carter, Scottsboro: A Tragedy of the
American South, 5-6 (special ed., The Notable Trials Library 2000) (giving age range of
Scottsboro defendants as 13-20). I am deeply concerned that Justice Sutherland’s simple
and eloquent idea of effective legal representation may not be the reality of our present-
day jurisprudence. All too often, the “guiding hand” is either inexperienced, unmotivated
or uncaring, and offers insufficient guidance to the indigent capital defendant.
The need for reform of the “delivery system” of counsel to indigent capital
defendants is well-known, and its failures are, unfortunately, no longer either surprising
or shocking. Reports continually surface highlighting the subpar performances of capital
defense counsel. See, e.g., James S. Liebman et al., A Broken System: Error Rates in
Capital Cases, 1973-1995, at ii (2000), available at
http://www.justice.policy.net/jpreport/index.html (last visited Feb. 13, 2004). Too often
appointed trial counsel lack the experience, training or financial resources necessary to
adequately represent those defendants on trial for their life who face the powerful forces
of the government. See, e.g., Stephen B. Bright, Counsel for the Poor: The Death
Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Y ALE L. J. 1835, 1862
(1994). In my view, any level of inadequate representation not only undermines the
reliability that must be the foundation of our adversarial process, but also heightens the
risk that defendants will be convicted and sentenced to death despite their actual or
incremental innocence.2
Ideally, the standard set out in Strickland v. Washington, 466 U.S. 668 (1984),
should act as a safety net to correct injustices caused by ineffective counsel. I view the
results as less than ideal. I begin with the Supreme Court instruction to “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. I submit, however, that where the sanction, once executed, is
irreversible, the presumption must be defined narrowly – not widely. Unfortunately, in
the twenty years since the standard was set out in Strickland, it has degraded. The range
of what is deemed “effective” has widened to, in my view, an astonishing spectrum of
shabby lawyering. Counsel has been deemed “effective” despite, for example, sleeping
through a portion of the case. See McFarland v. Texas, 928 S.W.2d 482, 505 (Tex. Crim.
App. 1996) (recognizing that defense counsel slept through parts of defendant’s capital
2
What I refer to as “incremental innocence” represents the degree of guilt found in
excess of one’s actual culpability, resulting in a punishment imposed that exceeds that
which is indicated by their participation in the crime.
trial, but deeming him “effective.”).3 Other shocking examples include cases where
counsel was intoxicated during the capital trial, see Haney v. Alabama, 603 So. 2d 368,
377-78 (Ala. Crim. App. 1991); and cases where counsel presented no evidence
whatsoever during the sentencing phase, see Mitchell v. Kemp, 762 F.2d 886, 888 (11th
Cir. 1985). In my view, the majority opinion in this case infuses our jurisprudence with
this degraded standard.
These disturbing examples of inept lawyering in capital cases have propelled
professional organizations to act. The American Bar Association has promulgated
“Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.”
These Guidelines upgrade the minimum standard from “quality” legal representation to
“high quality” legal representation. See American Bar Association Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 H OFSTRA
L. R EV. 913, 939 (2003) (outlining the 2003 Revisions to the Guidelines). Included in
those guidelines is the requirement that the capital defendant should “receive the
assistance of all expert, investigative, and other ancillary professional services . . .
appropriate . . . at all stages of the proceedings.” Id. at 952. Here, in my view, counsel’s
failure to conduct even the most rudimentary investigation into Rompilla’s background
falls short of being “effective” representation. I believe this level of representation
violates not only the standards set out by the American Bar Association, but by accepting
3
Mr. McFarland’s counsel later justified his actions by testifying that he
“customarily takes a short nap in the afternoon.” Henry Weinstein, A Sleeping Lawyer
and a Ticket to Death Row, L.A. T IMES (Valley Ed.), July 15, 2000, at A1.
it as adequately effective, we continue to degrade the standard set out in Strickland, and
ignore the sentiments expressed by Justice Sutherland.
I believe that a policy of this importance should not be decided by a divided panel
of the court. This court, which has traditionally been in the van, and a steadfast guardian
of constitutional rights, should have taken this opportunity to convene en banc to consider
and carefully define the breadth of Strickland’s presumption, and set forth a
jurisprudentially sound and humanitarian threshold for what constitutes effective
representation.
Sloviter, J., and McKee, J., join in this opinion.