Death-row inmate's military service is relevant, justices say

Court faults lawyer for not presenting mitigating evidence

By Robert Barnes
Washington Post Staff Writer
Tuesday, December 1, 2009

The Supreme Court gave hope Monday to a Korean War veteran on Florida's death row, saying courts should take note of his battlefield bravery and likely post-traumatic stress in weighing whether he deserves to be executed for the murders he later committed.

In an unsigned opinion without dissent, the justices were strikingly sympathetic to George Porter, who shot his former girlfriend and her new boyfriend in 1986. The court faulted Porter's attorney for not detailing his military service to the jury considering whether he should receive the death penalty, and said lower courts should have recognized that such information could have swayed the outcome.

"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," the justices wrote.

"Moreover, the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter."

The court said Porter, now 77, returned from Korea "a traumatized, changed man."

Like most death penalty cases that take more than 20 years to reach the Supreme Court, Porter's legal journey is complicated. He represented himself in the murder trial, and his standby counsel took over at the penalty phase.

But the lawyer said Porter was fatalistic and uncooperative, and he did not present to the jury potentially mitigating evidence about Porter's abusive childhood, his military service and the trauma it caused or a serious alcohol problem.

The Florida Supreme Court affirmed Porter's death sentence. And even though a federal judge agreed with Porter when he took his appeals to that level, the U.S. Court of Appeals for the 11th Circuit backed the Florida court.

The justices on Monday said the appeals court was wrong to defer to Florida courts. They said that the decision of Porter's counsel not to present more evidence to mitigate the crime "did not reflect reasonable professional judgment" and that the Florida Supreme Court's decision that it would not have made a difference was "unreasonable."

The court returned the case to the 11th Circuit, presumably for it to order a new sentencing. The court's order did not cast doubt on Porter's conviction.

The court was neither briefed nor heard arguments about the case, and it is unclear how far-reaching the opinion might be for others. It is one in a series of a death-penalty cases the justices have dealt with this term in which ineffective counsel has been alleged; in others, it has sided with the state against the accused.

But the court seemed to go out of its way in Porter's case to move beyond the issue of counsel to express the seriousness with which it views post-traumatic stress disorder.

In a footnote, it cited the testimony of Veterans Affairs Secretary Eric K. Shinseki that nearly a quarter of Iraq and Afghanistan veterans seeking treatment at a VA medical facility had received PTSD diagnoses. In another, it noted that California and Minnesota had set up special sentencing proceedings for those who alleged their crimes were influenced by PTSD.

The case is Porter v. McCollum.