Legal Commentary: Rompilla v. Beard

The decision of the majority in Rompilla v. Beard is not as sweeping as Justice Kennedy's dissent would have you believe. In my humble opinion, the majority reaches a fairly unremarkable conclusion: when defense counsel is aware that the prosecution is going to use materials from the prior conviction file to a great extent and to rely on certain damaging portions of such a record, defense counsel has an obligation to review that file. There is nothing extraordinary or illogical about it - if you know your opponent is going to rely on something in court, you better take a look. Particularly, if you are defending a capital case.

Frankly, here, I think the defense counsel had an obligation to look at all sources of info. re: backgorund and mental health issues, even if the prosecution was not planning to parade the defendant's prior conviction record. I would assume that a jury deciding the defendant's life or death would want to know everything about his mental health and childhood (including school) to figure out how the defendant got to a point of committing a capital crime. His court file seems like an easy and a good place to start, and work backwards.

To some degree, the majority and dissent are "passing each other in the dark" on the issue of prejudice. The majority discusses prejudice by pointing out, in some detail, possible leads that could have been uncovered through a review of the prior conviction file. But for all its emotion, the dissent barely acknowledges this analysis.

Justice Kennedy's policy argument (re: majority forces defense counsel to spread its limited resources too thin) did not convince me at all. The majority does not create any hard-and-fast rule here: it repeatedly mentions the obligation to look at the court file stemmed from knowledge that the DA was going to make a big issue out of it. Also, I don't seen how looking at an easily accessible (if not always easily reviewable) court file spreads the resources thin - on the contrary, a court file seems like an easy starting point that could allow the defense to plan its mitigation investigation more efficiently.

Finally, to the extent defense counsel are really spread to0 thin (and believe me, they are in California), the remedy is to advocate for increased funding, not to cut down on constitutional protections in capital cases. .

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