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December 4, 2009

Interesting take on SCOTUS Porter and Van Hook rulings and "selective empathy"

The New York Times' "Opinionator" blog today has this fascinating piece by Linda Greenhouse titled "Selective Empathy."  Here is how it starts and ends:

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?...

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.

December 4, 2009 at 11:22 AM | Permalink

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Comments

Greenhouse is an unprincipled hack.

Here's a quote from her column:

"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."

Now here's a quote from the SCOTUS opinion:

"Like the Court of Appeals, Van Hook first contends that his attorneys began their mitigation investigation too late, waiting until he was found guilty—only days before the sentencing hearing—to dig into his background. See 560 F. 3d, at 528. But the record shows they started much sooner. Between Van Hook’s indictment and his trial less than three months later, they contacted their lay witnesses early and often . . . ."

Slanting the facts. Gotta love it. Anything for the cause--including one's own credibility.

Posted by: federalist | Dec 4, 2009 11:37:19 AM

unprincipled hack. Noun. Definition: “someone whose personal values Federalist does not share.”

Posted by: Marc Shepherd | Dec 4, 2009 11:55:24 AM

Marc, then perhaps you can explain her curious recounting of the facts . . . .

Posted by: federalist | Dec 4, 2009 11:58:23 AM

From the posted excerpt, she did not say what she found, but rather, like the SCOTUS, said what the Court of Appeals found.

Here's a quote from her column:

"The appeals court found that his trial lawyer had conducted only a perfunctory, last-minute search for mitigating evidence, ..."

Now here's a quote from the SCOTUS opinion:

"Like the Court of Appeals, Van Hook first contends that his attorneys began their mitigation investigation too late, waiting until he was found guilty—only days before the sentencing hearing—to dig into his background."

I make no comment on the definition of unprincipled hack -- and I mean to ruffle no feathers.

Posted by: = | Dec 4, 2009 12:08:45 PM

oh good grief, 12:08:05, that's about the lamest response I can imagine. The issue is that a reader would take as given that there wasn't much of an investigation. Come on guys, you have to be able to do better than that.

Posted by: federalist | Dec 4, 2009 12:16:56 PM

SIXTH CIRCUIT opinion:

"The appeals court found that his trial lawyer had conducted only a perfunctory, last-minute search for mitigating evidence

SCOTUS opinion:

"But the record shows they started much sooner. Between Van Hook’s indictment and his trial less than three months later, they contacted their lay witnesses early and often . . . ."

DEFENSE LAY MITIGATION witnesses:

mom, maternal aunt, and an 80-year old friend.

What is not apparent is the reason defense counsel were talking to mom early on to the beginning of the trial is because mom figured prominently in their attempts to suppress Van Hook's confession. The aunt and the aged friend had information relevant to what Van Hook did between the time of the murder and his subsequent flight to Florida. As a matter of fact, the first en banc proceeding dealt with the issue of whether Van Hook's mother could reinitiate interrogation, as opposed to Van Hook himself, for purposes of Miranda analysis.
By reviewing non-detailed (superficial) indigent counsel reimbursement records SCOTUS ignored or was unaware of the purpose and scope of the defense investigation. SCOTUS should have sent the case back and required the lower courts to hear from trial counsel why they did what they did.

Posted by: k | Dec 4, 2009 12:35:23 PM

yeah, k, I am sure that the libs on SCOTUS would have let that fly . . . .

Posted by: federalist | Dec 4, 2009 12:38:56 PM

Psychologically defined, all empathy is selective. I understand what Ms. Greenhouse is driving at but empathy is not proper word for it. Selective social compunction might be a better phrase.

Posted by: Daniel | Dec 4, 2009 12:44:15 PM

Federalist:

Sending it back, as opposed to issuing a decision without the benefit of briefing or argument, is called "constitutional avoidance."

Posted by: k | Dec 4, 2009 12:48:30 PM

"Unprincipled" and "hack" are both scathing insults. I would guess that Linda Greenouse has contributed thousands of articles to The New York Times. She is generally considered the preeminent Supreme Court journalist of her generation. This was an opinion piece, so of course she was stating her viewpoint. Far from being unprincipled, she was in fact stating a princple, albeit one that Federalist does not support. As for "hack"..., well, it seems that Federalist trots that one out just a little too often, and usually with very little to support it. It usually just means, "She wrote the opinion/article differently than I would have written it."

Posted by: Marc Shepherd | Dec 4, 2009 2:04:45 PM

Ok, Marc, we see that, so long as it supports the cause, story-slanting is ok.

Posted by: federalist | Dec 4, 2009 2:25:02 PM

"I don’t make that observation to excuse the crimes of those on death row..."

...is almost inevitably the opening line for someone who aims to excuse the crimes of those on death row.

Posted by: Bill Otis | Dec 4, 2009 3:47:36 PM

Marc --

"She is generally considered the preeminent Supreme Court journalist of her generation."

I don't know what the source is for that. She's popular with those who share her conventional liberal opinions, that's for sure.

Her successor at the Times, Adam Liptak, is both smarter and more objective, although certainly no one's version of a conservative.

Posted by: Bill Otis | Dec 4, 2009 3:52:23 PM

I just don't understand the willingness to defend such bad form on Greenhouse's part. What person, versed in writing about cases, cites a lower court conclusion without mentioning that a higher court thought otherwise?

But I am the bad guy for calling her a hack? Ok, gotcha. Perhaps if she wouldn't so obviously slant the factual underpinnings of her piece, that description would be inaccurate.

Doug, ya see, I don't have a problem with strong words per se.

Posted by: federalist | Dec 4, 2009 4:05:31 PM

It just seems that "liberal = always bad" and "conservative = always good" are both based on facile labels. There are dumb conservatives and great liberals. There are dumb liberals and great conservatives. Those who always choose the same labels for those whom they disagree with politically are suspect.

Posted by: Marc Shepherd | Dec 4, 2009 4:31:27 PM

Wow Marc, no defense of Greenhouse, just some sniveling because I am calling a spade a spade.

Once again, I ask the question:

What person, versed in writing about cases, cites a lower court conclusion without mentioning that a higher court thought otherwise?

It's unanswerable.

Posted by: federalist | Dec 4, 2009 5:11:49 PM

maybe she didn't have the words to devote 3 paragraphs to explaining how SCOTUS (yes, the supreme court of the united states! gasp!) selectively cited the record in a way that is misleading as to the actual character of the investigation (see explanation of this above). this is for a lay audience, not a bunch of lawyers.

Posted by: Anon | Dec 4, 2009 6:39:57 PM

For Greenhouse to cite the court of appeals' language upbraiding defense counsel for tardiness in preparation, without noting, or giving the reader any reason to suspect, that the Supreme Court in the same case recited facts showing the contrary, is, in my view, pretty shoddy journalism.

They say that Paris Hilton is famous for being famous. I view Greenhouse somewhat similarly, as being respected for being respected.

Some people slide a long way on reputation. I think she's one of them.

My friend Ed Whalen, who writes "Bench Memos" for National Review Online, had an interesting story about Greenhouse's undisclosed conflict of interest in writing about a Supreme Court case some months ago. I forget the details, but she was giving a one-sided version of it without ever letting on that her husband had signed an amicus brief on the side she to which her reporting was favorable. I don't consider that top notch journalism, and I don't know anyone who would.

Posted by: Bill Otis | Dec 4, 2009 6:41:03 PM

Another NYT analysis of the case the SC tried the defendant's way (linked to Greenhouse) emphasized the questionable counsel he received. He at first actually (according to the article) represented himself. Later, he got an inexperienced death penalty counsel and so forth.

Simply put, the two cases appear to be different in some ways. FWIW, I asked a liberal anti-death penalty defense attorney about the first case & she said (granting she didn't know if she could trust the SC's view of the facts) that on face value it looked like a fair ruling. This from someone many here would likely find more biased than LG.

And, both opinions had no dissents, including from the likes of Stevens. So, I took the op-ed with a grain of salt.

Posted by: Joe | Dec 5, 2009 4:43:32 PM

If people don't want to believe SCOTUS, that's fine, but that's not really the issue with Greenhouse's low-rent hackery here. If you're writing about a lower court determination--it's pretty dishonest not to mention the fact that a higher court came to the opposite conclusion.

Posted by: federalist | Dec 6, 2009 9:40:41 AM

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