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November 30, 2009

SCOTUS summarily reverses Eleventh Circuit's rejection of capital defendant's IAC claim

Continuing its recent trend of doing capital case error-correction through summary reversals, the Supreme Curt this morning issued this per curiam opinion in Porter v. McCollum (08-10537) reinstating a district court's habeas grant on the ground of ineffective assistance of cousel.  The grant had been reversed by the Eleventh Circuit, but here is how the SCOTUS opinion begins reversing the Eleventh Circuit's work:

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.

In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce that evidence violated his Sixth Amendment right to counsel and granted his application for a writ of habeas corpus.  The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984).  Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. 

November 30, 2009 at 10:58 AM | Permalink


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I fail to see that military service, no matter how valorous has any bearing on crimes committed decades later. You've brought up the topic before and I just don't see the one having any relevance to the other.

I do however find these PC opinions interesting, especially now that there is one going for the defendant.

Posted by: Soronel Haetir | Nov 30, 2009 11:32:09 AM

The answer is given in the opinion itself. The character of the defendant has long been considered relevant in determining a sentence; and valorous military service has long been considered favorable and mitigating evidence of the defendant's character.

Obviously, valorous service does not expiate crime, but it is one of many factors in the defendant's favor that his counsel failed to pursue in this case.

Posted by: Marc Shepherd | Nov 30, 2009 1:02:34 PM

I don't remotely work in the legal field. Just like to stop in to read what's happening.

Having read the PC order, I'll make a few comments with regards to the first commenter. As the UCMJ did not become effective until 1951, I have to make a few assumptions, but any lawyer worth a lick at re-sentencing can find the information.

1. 6 months incarceration for going AWOL is in line with punishment under Article 86 of the UCMJ, and not that of an Article 15.

2. The difference, if I've read correctly, is he received a court-martial vs. being issued non-judicial punishment.

3. As an old, retired soldier (OK, not really old), that could possibly make a difference to me with regards to mitigation. You see, not many soldiers are convicted of a federal felony offense & receive a jail term and then return to duty to later receive AN HONORABLE DISCHARGE.

I'm not at all condoning his actions. As he's been found guilty, and no court has come close to overturning those convictions, I presume he is a murderer.

That said, his honorable military service alone spoke highly of his character both pre- and post-PTSD. It spoke so highly of his character that his chain-of-command, whom possibly even preferred the court-martial charges, approved an honorable discharge.


Posted by: Old Soldier | Nov 30, 2009 4:16:36 PM


How can possibly not believe that military service, esp. the life altering trauma of close combat where friends are dying, screaming in agony, isn't a mitigator. Living with the memories of the horrors of war and the guilt of living when others didn't forever alters people. I'm not sure what greater mitigator there could possible be.

Porter was broken by what happened in Korea just as many other man of much more substantial character have been through out the history of our Republic. War is not a game of ring around the poseys, its effects can be life shattering even for its survivors.

With that said, the Court's decision I think clearly lays out the flip side of the Belmonte/Van Hook coin. If counsel does a competent investigation, makes informed choices based on that information, but somehow misses something or make mistakes along the way, then as, Belmonte/Van Hook hold, trial counsel shouldn't be found ineffective. If counsel doesn't do those things, the Porter Court reaffirmed, all bets are off.

Posted by: k | Nov 30, 2009 8:36:40 PM

read it twice and missed the typos in the first lines of the first two paragraphs. sorry folks.

Posted by: k | Nov 30, 2009 8:38:13 PM

The Supreme Court is the keeper of the lawyer rent, no matter its political ideology. The rent trumps all ideologies, loyalties.

Posted by: Supremacy Claus | Nov 30, 2009 9:25:01 PM

I believe this is the first time that Justices Scalia and Thomas have ever voted to vacate a death sentence based on ineffective assistance of counsel (please correct me if I'm wrong).

Posted by: JC | Nov 30, 2009 11:14:01 PM

This isn't the first PC that went the defendant's way this term.

Query: is this number so far notable? Is it an anomaly or possibly some sort of trend?

Posted by: Joe | Dec 1, 2009 1:04:59 PM

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