User namePassword 

 Print this Issue Home  •  Archive  •  About Us  •  Contact  •  Advertise  •  Merchandise Subscribe  •  Free Trial
Stephen Keim
16 December, 2009  
The vagaries of death row

US Supreme Court unanimously saves double murderer from the chair … The law has a soft spot for heroic, decorated, war vets … Deficient performance by defence counsel … Willie Nelson sings … Stephen Keim reports


One does not expect the fractious Supreme Court of the United States to use the words “per curiam” (indicating unanimity) to refer to a judgment that decides the fate of someone sentenced to death for murder.

It happened last month in the case of George Porter versus Bill McCollum, Attorney General for the State of Florida

More amazingly, the effect of the judgment issued in the name of the whole court (without any justice being identified) is that George Porter will not have to die for the October 1986 murders of his ex-girlfriend, Evelyn Williams, and her partner, Walter Burrows.

imageHow strange to read a decision of the Supreme Court without some equivalent of Justice Scalia’s reasoning (in the case of Troy Davis) that “actual innocence” is not a relevant factor for the court to consider.

Pic: Antonin Scalia

The first paragraph of the opinion gives an idea of the circumstances that led to this result:

“Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized changed man. His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.”

The case shows how courts at different levels can disagree about the application of simple principles.

It also reveals the factors that appeal to the mercy of justices who, on other occasions, place much greater weight on issues other than the cruel and unusual nature of judicial killing.

Porter acted for himself for part of his trial and ended-up pleading guilty. His original court assigned lawyer took over the penalty phase of the trial about a month prior to the scheduled date.

He called virtually no evidence about Porter’s mental state or his war record even though relevant material was already on the record as a result of an earlier hearing on whether Porter was fit to plead.

The appeals process focused on this failure of the lawyer to conduct a proper inquiry and present the resulting evidence.

A Florida Court rejected the application despite being presented with the new evidence.

The Florida Supreme Court upheld the refusal.

A Federal District Court judge found for Porter on a federal habeas petition. This was overturned (with two dissenting justices) by the Eleventh Appeals Circuit.

The Supreme Court granted certiorari restoring the decision of the Federal District Judge in Porter’s favour.

The principles involved in such applications are set out in _Strickland v Washington 466 US 668.

The applicant must show that the deficient performance of counsel prejudiced him in the sentencing process.

The performance must be shown to have fallen below an objective standard of reasonableness.

Prejudice requires that there be shown a reasonable probability that, but for the deficiency, the result of the proceeding would have been different.

Those are the tests to be applied by the court that hears the application.

However, by the time it gets to a federal habeas application, the applicant has to establish that the state court’s rejection was contrary to or involved an unreasonable application of the Strickland principles or involved an unreasonable determination of the facts in light of the evidence presented.

The Supreme Court found both tests were satisfied.

The law has a soft spot for war veterans. The judgment cited research going back to a 1922 study of Civil War veterans.

There was no doubt that Porter had served bravely in horrific conditions and was suffering post traumatic stress as a result.

The court also relied on evidence that Porter had been abused as a child by his violent father, although just about everyone on death row could adduce similar evidence.

The judges also relied on a finding by the Florida Supreme Court that the crime was “consistent with a crime of passion”.

I’m all in favour of the Supreme Court’s finding that George Porter should not die.

imageI wonder, however, if Chief Justice Roberts and Justices Thomas and Scalia might have not been loud in dissent if the post traumatic stress condition came from less heroic circumstances than the horrors of the Korean War.

Pic: Clarence Thomas

Then there’s the consideration that this was a murder by a man of his female ex-lover woman and her new paramour.

I have a suspicion that conservative, pro-death penalty justices still share the sentiment of Willie Nelson’s The Red Headed Stranger when it comes to the rights and wrongs of a man killing a woman:

“The yellow-haired lady was buried at sunset;
The stranger went free, of course.
For you can’t hang a man for killin’ a woman,
Who’s tryin’ to steal your horse.”

In any event, the judgment will help death penalty appeal lawyers in shaping arguments for future habeas applications.

Stephen Keim
Brisbane