Effective Counsel: Duty to Investigate Public Record

. . . Ineffective assistance under Strickland is deficient performance by counsel resulting in prejudice, 466 U.S., at 687, with performance being measured against an “objective standard of reasonableness,” id., at 688, “under prevailing professional norms.” Ibid.; Wiggins v. Smith, supra, at 521. This case, like some others recently, looks to norms of adequate investigation in preparing for the sentencing phase of a capital trial, when defense counsel’s job is to counter the State’s evidence of aggravated culpability with evidence in mitigation. In judging the defense’s investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to “counsel’s perspective at the time” investigative decisions are made, 466 U.S., at 689, and by giving a “heavy measure of deference to counsel’s judgments,” id., at 691.

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Before us, trial counsel and the Commonwealth respond to these unexplored possibilities by emphasizing this Court’s recognition that the duty to investigate does not force defense lawyers to scour the globe on the off-chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste. See Wiggins v. Smith, 539 U.S., at 525 (further investigation excusable where counsel has evidence suggesting it would be fruitless); Strickland v. Washington, supra, at 699 (counsel could “reasonably surmise … that character and psychological evidence would be of little help”); Burger v. Kemp, 483 U.S. 776, 794 (1987) (limited investigation reasonable because all witnesses brought to counsel’s attention provided predominantly harmful information). The Commonwealth argues that the information trial counsel gathered from Rompilla and the other sources gave them sound reason to think it would have been pointless to spend time and money on the additional investigation espoused by postconviction counsel, and we can say that there is room for debate about trial counsel’s obligation to follow at least some of those potential lines of enquiry. There is no need to say more, however, for a further point is clear and dispositive: the lawyers were deficient in failing to examine the court file on Rompilla’s prior conviction.


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There is an obvious reason that the failure to examine Rompilla’s prior conviction file fell below the level of reasonable performance. Counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving Rompilla’s prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim’s testimony given in that earlier trial. App. 665—666. There is no question that defense counsel were on notice, since they acknowledge that a “plea letter,” written by one of them four days prior to trial, mentioned the prosecutor’s plans. Ibid. It is also undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried.

It is clear, however, that defense counsel did not look at any part of that file, including the transcript, until warned by the prosecution a second time. In a colloquy the day before the evidentiary sentencing phase began, the prosecutor again said he would present the transcript of the victim’s testimony to establish the prior conviction.

“[DEFENSE]: I would also like to review whatever he’s going to read from.

“[PROSECUTOR]: Well, I told you that I was going to do this a long time ago. You certainly had the opportunity to review the Transcript.

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“[DEFENSE]: Well, I would like a copy of this.

“[PROSECUTOR]: I don’t think that’s my duty to provide you with a copy. That’s a public record, and you could have gotten that Transcript at any time prior to this Trial. I made one copy for myself, and I’d like to have it now.

“[DEFENSE]: Well, Judge, then I’m going to need to get a copy of it. I’m going to need to get a copy of it.”2 Id., at 32, 36.

At the postconviction evidentiary hearing, Rompilla’s lawyer confirmed that she had not seen the transcript before the hearing in which this exchange took place, id., at 506—507, and crucially, even after obtaining the transcript of the victim’s testimony on the eve of the sentencing hearing, counsel apparently examined none of the other material in the file.3

With every effort to view the facts as a defense lawyer would have done at the time, it is difficult to see how counsel could have failed to realize that without examining the readily available file they were seriously compromising their opportunity to respond to a case for aggravation. The prosecution was going to use the dramatic facts of a similar prior offense, and Rompilla’s counsel had a duty to make all reasonable efforts to learn what they could about the offense. Reasonable efforts certainly included obtaining the Commonwealth’s own readily available file on the prior conviction to learn what the Commonwealth knew about the crime, to discover any mitigating evidence the Commonwealth would downplay and to anticipate the details of the aggravating evidence the Commonwealth would emphasize.4 Without making reasonable efforts to review the file, defense counsel could have had no hope of knowing whether the prosecution was quoting selectively from the transcript, or whether there were circumstances extenuating the behavior described by the victim. The obligation to get the file was particularly pressing here owing to the similarity of the violent prior offense to the crime charged and Rompilla’s sentencing strategy stressing residual doubt. Without making efforts to learn the details and rebut the relevance of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope. . . .

But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell defense counsel something about what the prosecution can produce.

Counsel fell short here because they failed to make reasonable efforts to review the prior conviction file, despite knowing that the prosecution intended to introduce Rompilla’s prior conviction not merely by entering a notice of conviction into evidence but by quoting damaging testimony of the rape victim in that case. The unreasonableness of attempting no more than they did was heightened by the easy availability of the file at the trial courthouse, and the great risk that testimony about a similar violent crime would hamstring counsel’s chosen defense of residual doubt. It is owing to these circumstances that the state courts were objectively unreasonable in concluding that counsel could reasonably decline to make any effort to review the file. . . .