Porter and Ineffective Assistance of Counsel at Capital Sentencing Hearings

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The United States Supreme Court recently decided Porter v. McCollum, a capital case in which the defendant claimed that his lawyer performed ineffectively at the penalty phase of his trial. It’s interesting for a couple of reasons, including the strong language it contains about the mitigating value of a defendant’s military service.

George Porter shot and killed his ex-girlfriend and her new boyfriend. He was charged, in a Florida state court, with two counts of first-degree murder. He elected to represent himself during the guilt phase of the trial and was convicted on both counts. He then asked that his standby counsel represent him during the penalty phase. Although the lawyer had a month to prepare for the hearing, he had never represented a defendant in a capital sentencing proceeding, and he did very little. He met with Porter just once, “did not obtain any of Porter’s school, medical, or military service records or interview any members of Porter’s family,” and ignored indications in competency evaluations that Porter’s childhood had been troubled and that his military service had been traumatic. As a result, his penalty phase presentation was limited to a single witness — Porter’s ex-wife — and a deposition excerpt. “The sum total of the mitigating evidence was inconsistent testimony about Porter’s behavior when intoxicated and testimony that Porter had a good relationship with his son.” The jury recommended death for both crimes, but the trial judge imposed a sentence of death only for the murder of the ex-girlfriend, opting to impose a life sentence for the other killing.

In post-conviction proceedings, Porter argued that his lawyer had performed ineffectively. His claim was rejected by the Florida courts, which found that any deficient performance by the lawyer did not prejudice Porter. On federal habeas, the district court granted relief, but the Eleventh Circuit reversed, concluding that the Florida courts’ ruling on the prejudice issue was reasonable.

The Supreme Court reversed per curiam — in a brief, unanimous, and unsigned opinion. That’s pretty strong medicine, the same kind that the Court sometimes uses when it reverses a Ninth Circuit decision the other way (as is recently did in Wong v. Belmontes). The Court had little difficulty finding that Porter’s lawyer performed deficiently. It also found that Porter was prejudiced, in light of what it viewed as strong mitigating evidence that the lawyer should have discovered and presented, such as evidence that Porter had been physically abused by his father, and evidence of Porter’s mental abnormalities, which made it difficult for him to read and write and contributed to his limited education.

But the category of mitigating evidence on which the Court spent the most time, by far, was Porter’s military service in the Korean War. Though blemished by several periods of going absent without leave (AWOL), Porter’s service was nonetheless distinguished: he won two Purple Hearts and fought in two of the war’s bloodiest battles, which are described in some detail in the opinion. Porter’s service was also traumatic, contributing to a drinking problem and resulting in nightmares so vivid that he would try to climb the walls of his bedroom with knives.

The language that the Court used to describe the mitigating value of Porter’s military service was strong, and may be of relevance beyond the capital context. For example, the Court stated that “[o]ur Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.” In a state that is home to so many military personnel and military veterans, this is worth noting.

You can read more about this case in posts or articles at Sentencing Law and Policy, SCOTUSblog, or the New York Times.

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