Rompilla was convicted of murder and sentenced to death. One issue in this federal habeas corpus proceeding was whether his trial attorney failed to provide effective assistance of counsel when the attorney did not develop evidence of FAS as a possible mitigating factor.

The federal court of appeals was divided about that issue; it upheld the sufficiency of the representation by a 2-1 vote. 355 F. 3d at 252-53 (majority opinion), 279 et seq. (dissenting opinion).

This case raises two issues about the respective roles and responsibilities of trial attorneys and defense experts. Although the defense attorneys retained three such experts, no inquiry into FAS appears to have been made.

(1) The experts said they would have inquired further if they had had certain records only unearthed after trial. The trial attorney explained he did not look for those records because the experts had not asked for them. The majority and dissent disagreed about whether this amounted to ineffective assistance of counsel. [If the records were important mitigating information, it would be odd if failure to obtain them could be excused on the ground that the attorney and the expert were each relying on the other to raise that point].

(2) There was substantial disagreement about whether the trial attorney had clearly directed the experts to investigate medical issues that related to sentencing; the dissenting opinion read the record as indicating that the experts had only been told to look at guilt issues. [Again, this raises important issues about the responsibilities of trial counsel in dealing with experts.]