News & Events

Print/PDF this page:

Print Friendly and PDF

Share this page:

Selective Empathy—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was published on newyorktimes.com on December 3, 2009.

Selective Empathy
By Linda Greenhouse ’78 MSL

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question:

Is selective empathy better than no empathy at all?

The veteran, George Porter Jr., was 53 years old when, after a night of drinking, he shot his former girlfriend and her new lover to death. It was 1986, and the Korean War had been over for 33 years. Mr. Porter saw heavy combat in Korea, and his life when he came home was a mess. It was evidently a mess before Korea as well: he escaped his violent and abusive family by joining the Army at the age of 17.

Sentenced to death in 1988 by a Florida judge for one of the murders, Mr. Porter filed two rounds of unsuccessful appeals in the Florida courts. He then turned to the federal courts, seeking to overturn his sentence by means of a writ of habeas corpus. His claim was that his lawyer’s failure to inform the sentencing jury about his wartime experience and its aftermath fell below the Constitution’s minimum standards for adequate representation.

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our 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.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

Beyond those procedural niceties, the most notable feature of all was the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood.

Just last month, the same nine justices, also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse.

The appeals court found that his trial lawyer had conducted only a perfunctory, last-minute search for mitigating evidence, and failed to inform the jury of such “unsettling and potentially mitigating” details as the fact that Mr. Van Hook had a history of mental illness; that his parents had repeatedly beaten him; that his father tried to kill his mother several times in his presence; and that his mother was committed to a psychiatric hospital when he was a young child. Introducing this evidence “could certainly have tipped the scales in favor of his life,” the appeals court said in overturning the death sentence.

In its unsigned opinion reversing that decision, Bobby v. Van Hook, the Supreme Court parsed the evidence that was presented and concluded that the lawyer’s decision “not to seek more” fell “well within the range of professionally reasonable judgments.” The American Bar Association standards in effect at the time of trial required no more, the opinion said.

Justice Samuel A. Alito added a concurring paragraph to observe that the A.B.A. “is, after all, a private group with limited membership,” and its views should not be given “special relevance” in determining whether a lawyer’s performance meets constitutional standards.

The paragraph was not only gratuitous. It also was a chilling reminder of how the court has changed since the retirement of the justice whom Justice Alito replaced, Sandra Day O’Connor. In a 2003 majority opinion, Wiggins v. Smith, Justice O’Connor cited the bar association’s standards in concluding that a lawyer’s representation of a Maryland death-row inmate had been constitutionally deficient. William H. Rehnquist, then the chief justice, joined that opinion; only Justices Antonin Scalia and Clarence Thomas dissented.

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.