Alito might shift court's stance on death penalty

In 5-4 decision, justices vacated killer's sentence, overturning ruling written by nominee


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

By the narrowest of margins - 5-4 - the court vacated his 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 Judge Samuel A. Alito Jr. of the 3rd U.S. Circuit Court of Appeals - the same man who might replace one of those swing votes 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 Association'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.

There never was much question about Rompilla's guilt.

Now 57, Rompilla 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. Rompilla was found with money taken from the owner's wallet as well as 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 that he had earlier been convicted of burglarizing another bar, where he assaulted the female 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.

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

His two defense lawyers, working in the public defender's office, never pulled the records from that 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 been unable to tell right from wrong.

The state appellate courts affirmed the death sentence. The case was appealed to a federal district judge who, pointing to the poor defense work, ordered Rompilla released unless prosecutors agreed to a life sentence or held a new sentencing hearing.

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

In January 2004, they voted 2-1 to overturn the district judge and to keep the death sentence intact.

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

But Alito said the Sixth Amendment right to legal representation does not afford everyone "the most resourceful defense attorneys with bountiful investigative support." Alito reversed the lower court's ruling and reinstated the death penalty.

In June, the Supreme Court weighed in. In its 5-4 vote, Souter wrote for the majority and reversed Alito.

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

Richard A. Serrano writes for the Los Angeles Times.

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