Alito and the Death Penalty

With no fanfare, the Supreme Court this summer granted a last-minute reprieve to a man who had spent the last 17 years on death row in Pennsylvania. Convicted of stabbing a tavern owner to death and setting him on fire, Ronald Rompilla had run out of appeals when the high court stepped in.

By the narrowest of margins -- 5 to 4 -- the court vacated the death penalty and returned the case for resentencing. It marked the third time since 2000 that a loose coalition of liberal and swing-vote justices has struck down death-penalty cases because of poor work by defense lawyers.

Of broader importance, the court in the Rompilla case overturned a lower ruling written by U.S. 3rd Circuit Court of Appeals Judge Samuel A. Alito Jr. -- the same man who appears likely to replace one of those swing voters on the Supreme Court early next year.

The Rompilla case, many observers say, is clear evidence that Alito -- nominated to succeed retiring Justice Sandra Day O’Connor -- would help to reverse the court’s recent trend toward leniency in death-penalty cases.

For conservatives, the big question about Alito is whether he will live up to their hopes -- or disappoint them, as happened with O’Connor and Justice David H. Souter. It was Souter who wrote the opinion reprieving Rompilla, and it was O’Connor who provided the crucial fifth vote to see it done.

“It would be a real move backward to the court to retreat in this area,” said Terri L. Mascherin, chairwoman of the American Bar Assn.’s Death Penalty Representation Project.

But supporters of the death penalty, including Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said Alito would be just the ticket to turn the court to the right.

“The Rompilla case gives us a few clues about the change we can expect,” he said. “We will probably have a more consistent jurisprudence, sticking more closely to principles of law.”

There never was much question about Rompilla’s guilt.

Now 57, he spent much of a night in January 1998 drinking at the Cozy Corner Cafe in Allentown, Pa. After closing time, he sneaked back in through a bathroom window and attacked owner James Scanlon, beating and stabbing him repeatedly and burning him as he died.

The victim’s son, Timothy, discovered his father’s body in a pool of blood. Rompilla was found with loot from the owner’s wallet and the bar’s cash register. He was arrested, tried and convicted of capital murder.

At the sentencing phase of his trial, prosecutors presented evidence that Rompilla had struck before.

They told the jury how he had been convicted of burglarizing another bar, where he assaulted the owner with a knife and raped her. They said he never should have been “put out on the street” without help and rehabilitation.

His defense lawyers called only a small knot of family members to the stand to beg for mercy. Their testimony, when later transcribed, was 20 pages long. Darlene, his wife, wept, saying: “We want Ron alive even if it’s in jail; we want him alive.” Their 14-year-old son, Aaron, said it would not be right for his father to die. Asked if he wanted to say more, the boy simply cried.

The jury sentenced Rompilla to death. But there was one bit of evidence that they never heard -- and thereupon hung the appeals.

His two defense lawyers, working in the local public defender’s office, never pulled the records from the earlier conviction. Had they done so, they would have learned that their client was mentally ill, had been severely abused and neglected as a child, and had long misunderstood right from wrong.

He grew up the sixth of nine children in a home with an often absent and alcoholic mother. The house was filthy and smelled of urine. His father drank too, and his parents fought. Sometimes his father locked him in a small wire mesh dog pen filled with excrement. Other times he was made to sleep in the attic with no heat.

He went to school in rags, and it was determined that as an adult he had not progressed beyond the third-grade level in math and spelling. He left school after the ninth grade. He led a “nomadic existence” before his first arrests.

Prison mental health exams showed signs that Rompilla suffered from “schizophrenia, paranoia and neurosis.” He was an alcoholic. And he had tendencies that, obvious in hindsight, were “very violent.”

The state appellate courts affirmed the death sentence. The case next was appealed to a federal district judge who, citing poor defense work, ordered Rompilla released unless local prosecutors would agree to a life sentence or hold a new sentencing hearing.

Then the case came to Alito and two other judges on a panel of the U.S. 3rd Circuit Court of Appeals.

In January 2004, they voted 2-1 to overturn the district judge and keep the death sentence intact. Alito, a former Justice Department official in the Reagan administration and federal prosecutor in Newark, N.J., wrote the majority opinion.

Alito took note of the fact that the jury had not been told of Rompilla’s upbringing and mental deficiencies, which Rompilla’s new appellate lawyers argued might have moved the jurors to vote for life over death.

But Alito said the 6th Amendment right to legal representation did not afford everyone “the most resourceful defense attorneys with bountiful investigative support.”

“The 6th Amendment is satisfied when [defense] counsel’s conduct falls within the wide range of reasonable professional assistance, thereby ensuring that criminal defendants receive a fair trial,” he said.

Alito reversed the lower court’s ruling and reinstated the death penalty.

On June 20 this year, the Supreme Court weighed in. Souter wrote for the majority and reversed Alito, ordering the death sentence stricken and telling local prosecutors to either agree to a life term for Rompilla or reconvene a new sentencing hearing where a new jury could decide death or life.

At the heart of the Supreme Court’s ruling was the defense team’s oversight in not reviewing the file in Rompilla’s earlier case, which was housed in the clerk’s office just down the hall in the Allentown courthouse.

“If the defense lawyers had looked in the file on Rompilla’s prior conviction,” Souter ruled, “it is uncontested they would have found a range of mitigation leads that no other source had opened up.”

In two previous cases since 2000, the Supreme Court overturned death sentences in nearly identical circumstances: the failure of defense lawyers to present all the evidence that would argue against the death penalty.

James B. Martin, the Lehigh County district attorney in Allentown, has vowed not to agree to a life sentence. Instead, he will prepare for another sentencing hearing, mindful that this time defense lawyers will surely bring up the new evidence to help Rompilla.

Martin believes that in all the rounds of appeals, Alito’s order affirming the death sentence was the proper ruling. Asked whether he thought Alito would change the course of the court on the death penalty, Martin said:

“I would hope so ... I liked his opinion in the Rompilla case. It was well-reasoned and well-written, and he validated our very strong case.”