Today the Supreme Court granted a habeas petition for relief from a death sentence in Porter v. McCollum (per curiam opinion available here). George Porter, who murdered his ex-girlfriend and her boyfriend, argued that his defense counsel was ineffective when he failed to present certain evidence, including evidence relating to Porter’s military service, during sentencing.
During a post-conviction relief evidentiary hearing, Lieutenant Colonel Sherman Pratt, USA, testified extensively about Porter’s military history:
To escape his horrible family life, Porter enlisted in the Army at age 17 and fought in the Korean War. His company commander, Lieutenant Colonel Sherman Pratt, testified at Porter’s postconviction hearing. Porter was with the 2d Division, which had advanced above the 38th parallel to Kunu-ri when it was attacked by Chinese forces. Porter suffered a gunshot wound to the leg during the advance but was with the unit for the battle at Kunu-ri. While the Eighth Army was withdrawing, the 2d Division was ordered to hold off the Chinese advance, enabling the bulk of the Eighth Army to live to fight another day. As Colonel Pratt described it, the unit “went into position there in bitter cold night, terribly worn out, terriblyweary, almost like zombies because we had been in constant—for five days we had been in constant contact with the enemy fighting our way to the rear, little or no sleep, little or no food, literally as I say zombies.” The next morning, the unit engaged in a “fierce hand-to-hand fight with the Chinese” and later that day received permission to withdraw, making Porter’s regiment the last unit of the Eighth Army to withdraw.
Less than three months later, Porter fought in a second battle, at Chip’yong-ni. His regiment was cut off from the rest of the Eighth Army and defended itself for two daysand two nights under constant fire. After the enemy broke through the perimeter and overtook defensive positions on high ground, Porter’s company was charged with retaking those positions. In the charge up the hill, the soldiers “were under direct open fire of the enemy forces on top of the hill. They immediately came under mortar, artillery, machine gun, and every other kind of fire you can imagineand they were just dropping like flies as they went along.” Porter’s company lost all three of its platoon sergeants, and almost all of the officers were wounded. Porter was again wounded and his company sustained the heaviest losses of any troops in the battle, with more than 50% casualties. Colonel Pratt testified that these battles were “very trying, horrifying experiences,” particularly forPorter’s company at Chip’yong-ni. Porter’s unit was awarded the Presidential Unit Citation for the engagement at Chip’yong-ni, and Porter individuallyreceived two Purple Hearts and the Combat Infantryman Badge, along with other decorations.
Colonel Pratt testified that Porter went absent without leave (AWOL) for two periods while in Korea. He ex-plained that this was not uncommon, as soldiers some-times became disoriented and separated from the unit,and that the commander had decided not to impose any punishment for the absences. In Colonel Pratt’s experi-ence, an “awful lot of [veterans] come back nervouspeople mentally trying to survive the perils and hardships [of] . . . the Korean War,” particularly those who fought inthe battles he described.
When Porter returned to the United States, he went AWOL for an extended period of time. He was sentenced to six months’ imprisonment for that infraction, but he received an honorable discharge. [emphasis added -zds]. After his discharge, he suffered dreadful nightmares and would attempt to climbhis bedroom walls with knives at night. Porter’s family eventually removed all of the knives from the house. According to Porter’s brother, Porter developed a serious drinking problem and began drinking so heavily that hewould get into fights and not remember them at all.
None of this testimony, nor the testimony of an expert in neuropsychology who “concluded that Porter suffered from brain damage that could manifest in impulsive, violent behavior,” was presented during the sentencing phase of the trial. Yet the post-conviction trial judge determined that Porter was not prejudiced by counsel’s failure to present any of this testimony.
SCOTUS ruled otherwise. “Had Porter’s counsel been effective, the judge and jury would . . . have heard about (1) Porter’s heroic military service in two of the most critical—and horrific—battles of the Korean War, (2) his struggles toregain normality upon his return from war, (3) his child-hood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling.”
But I think the Court explained it best with this section:
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. 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.
Well, let’s hope so.
Still, there’s been a lot of talk (and training) about post-combat/post-traumatic stress as a significant mitigating factor in sentencing (or even a superseding factor on the merits). Hard to imagine we won’t see more of this argument after today’s SCOTUS opinion.