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.” Id., at 150. 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. Id., at 152. 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 nerthe 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 “fiercehand-to-hand fight with the Chinese” and later that day received permission to withdraw, making Porter’s regi-ment 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.

14 Responses to ““A long tradition of according leniency to veterans””

  1. Stu Couch says:

    Thanks for this post. If the high number of combat veteran appellants I saw at NMCCA is any indicator, the civilian criminal justice system should stand by for this issue to show up with regularity in the coming years. In the cases I reviewed, it was fairly common for Marine appellants to have at least two combat deployments with corresponding combat awards as part of their pre-sentencing evidence.

  2. wow says:

    Very surprised and impressed that this is 9-0. Also good reminder that beating Strickland is not a Sisyphean task.

  3. Anonymous says:

    No but beating it requires that the attorney do almost nothing. If the attorney merely does a little bit, then Strickland rears its ugly head. So you get mostly ineffective, then too bad, you get all the way ineffective then you get relief.

  4. Cossio says:

    ZDS, I found it interesting that you highlighted this:

    “He was sentenced to six months’ imprisonment for that infraction, but he received an honorable discharge.”

    That shouldn’t suprise you. Giving people punitive discharges for minor infractions is a recent trend started in the 1990’s.

    In WWII 1 out of 8 soldiers were court-martialed. There is even a story of a Soldier you Deserted the US Army in order to join the Canadian Army (because the US at the time wouldn’t get involved in WWII).

    When the US did enter WWII, he took advantage of a program to transfer back to the US Army. The Army found out about his prior desertion and court-martialed him fining him $50 dollars, that same day he was awarded a battlefield commission to 1LT for previous heroics. He would later go on to earn the Medal of Honor.

    Today’s Military would give a similiar case the boomer w/ jail time. Today’s Military would court-martial 3 SEALs for giving a guy a bloody lip, or give a CM to LtCl West for rough interogation techniques (pulling a gun out on someone to get them to talk about a terrorist plot).

    Today’s Military isn’t you grandfathers. We had braver men back then. Guys who didn’t make excuses, guys who have seen 10x the PTSD that these brats have seen (only a small percentage of soldiers are ever in combat). To the Army’s time-out cards to the Navy’s floating Brothels (the percentage of women who get preggers on Navy ships and are no longer combat ready is staggering).

    I was looking at my Great GrandFather’s Honorable Discharge (the closest I’ll ever get to one) the Bronze Battle Stars, the Middle East theatre decorations, Purple Hearts and I realize that the greatest generation is behind us.

  5. Southern Defense Counsel says:

    Cossio,

    You have a frustrating habit of making a good point in one breath and then saying the dumbest thing possible in the next. I almost wonder if you let your kid brother take over typing halfway through a comment.

    You’re right about the prevalence of BCDs today. However, I and any attorney who has worked with combat vets will throw the BS flag on your denigration of our soldiers, sailors, marines and airmen. The bravery I have seen, the silent suffering, the out and out heroism, are unrivaled. We tend to glorify the past without remembering the ugly of WWII, etc. That people are getting treatment for PTSD is a GOOD thing.

    The final thing I will note is this. I do not call every soldier, sailor, marine or airman a hero. That is a cheap political stunt employed by charlatans who likely never served a day. Most members are not heroes, they are just doing their job. What sets this generation apart is that they have volunteered to go once more into the breach. No other generation had the luxury of a fighting force that all voluntarily went off to fight, kill and die for them. So complain all you want about the outliers, but your sweeping statements are indicative of what cause you to lose credibility here.

  6. Piling On says:

    And, to pile on, going AWOL for an extended period of time is not a “minor infraction” in the military.

  7. Anonymous says:

    Not a minor infraction no but I am of the opinion that folks who desert and go AWOL should be given moderate prison time, not discharged and sent back to a new unit to finish their obligation.

    A second AWOL/desertion and then discharge them/long confinement.

  8. Comrade Cossio says:

    Southern Defense Counsel: You’re right about the prevalence of BCDs today. However, I and any attorney who has worked with combat vets will throw the BS flag on your denigration of our soldiers, sailors, marines and airmen. The bravery I have seen, the silent suffering, the out and out heroism, are unrivaled. We tend to glorify the past without remembering the ugly of WWII, etc. That people are getting treatment for PTSD is a GOOD thing.

    ???

    I don’t know what your beef is. I stand by my words that the Men who served in Vietnam, and before them WWII are the ones that are unrivialed.

    A simple litmus test. Assuming we have the same people we have today running the Military (the MBA Generals, the PC Brass) back in WWII (were we had real Generals and real leaders), do you think we would have won?

    Or do you think we would be Sprechen Sie Deutsch?

    Conversley, if we had the Same Generals and administration in WWII (the same mentality) instead of the Kennedy-McNamara (McKennedy) debacle and the fools running this war I would wager the following:

    1) We would have won Vietnam and;

    2) We’d be done in Iraq, Afgahnistan, Pakistan, and already moved in and out of Iran.

    We didn’t care about what the world thought, we didn’t care about constitutional rights of Terrorist, and we sure didn’t let political correctness get in our way of Victory.

    War is ugly, and should be avoided. However, in the situations were War is inevitable, you must crush the enemy quickly.

    8 years since this war began, against whom? Compare to the victories of WWII where we took on Nazi Germany, the Empire of Japan, and the Fascist Italians, how long did that take?

    And so you are telling me that the Soldiers, Airmen, and Saliors today who largely care about education benefits, getting drunk, and getting laid are better vs. the Soldiers in WWII or even Vietnam?

    How about the PC Generals/Admirals of today that would court-martial Navy SEALs and Army Rangers for giving a terrorist a bloody lip?

    Shyster, please.

    Go throw the BS flag on yourself, the only one saying nonsensical things is yourself. We need more General Pattons, not Manager McMullen.

    The USA can’t win a war because it won’t win a war.

    Let me also say that I mean no disrespect to anyone who gave up their lives in this war or shown true heroism. I am merely comparing the overall leadership and mentality with previous generations with the sick, drugged-up “stop or I’ll shoot” mentality of this one.

  9. Bridget says:

    Many years ago, revealing my age, I guess, a female friend and I were at a local drinking establishment near the old Naval Training Center in San Diego. I was chatting with a pleasant third class, in those days sailors wore their uniforms everywhere. I noticed he had hash marks indicating 14 years of service and I inquired politely as to whom he had P#@!ed off to be stuck at third class.

    He cheerfully informed me that he had punched out his senior master chief and was sent to a special court. He was given four months and a bust to E-1 and had managed to make most of his rank back. I tell the story only to demonstrate how things change. We do much chest beating and pontificate about the good old days, but that is how it was.

    The difference gents? Conscription. While we dream away the hours romanticizing the past, remember that the vast majority of individuals serving between WWII and 1976 were either drafted or enlisted to get a better deal than they might in the draft pool.

    A pointless exercise, the soldiers were better then…actually they were all just soldiers, which is pretty good in any year.

  10. Late Bloomer says:

    I confess to not knowing enough about military justice from bygone days, but wasn’t Pvt Eddie Slovich executed for going AWOL from his unit in France? If that is the case, then why the inconsistency? Was Pvt Slovich an anomaly?

  11. Comrade Cossio says:

    Was Pvt Slovich an anomaly?

    Yes, Eisenhower decided to make an example out of him. In Slovich’s own last words:

    “They’re not shooting me for deserting the United States Army — thousands of guys have done that. They’re shooting me for that bread I stole when I was 12 years old.”

    How prisoners were treated in “The Good Old Days” is an interesting discussion onto itself.

    On one hand punishments were more laxed in the good old days, more serious in other respects.

    Punitive Discharges were seldomly given, or even carried out. Time in Confinement was brief for things we would expect big jail time for today.

    However “the ultimate punishment” was given out more freely, and physical labor / corporeal punishment in lieu of confinement was the norm.

    —————–

    Bridget,

    While I agree with most of what you said, I believe we can, and should draw comparisions to one generation from another, it seems to me that those in the 1930s-1950’s were more efficient, doing more with less.

    ———————

    We must kill them. We must incinerate them. Pig after pig. Cow after cow. Village after village. Army after army. And they call me an assassin. What do you call it when the assassins accuse the assassin? They lie. They lie, and we have to be merciful, for those who lie. Those nabobs. I hate them. I do hate them.

    I’ve seen horrors … horrors that you’ve seen. But you have no right to call me a murderer. You have a right to kill me. You have a right to do that … but you have no right to judge me. It’s impossible for words to describe what is necessary to those who do not know what horror means. Horror. Horror has a face … and you must make a friend of horror. Horror and moral terror are your friends. If they are not, then they are enemies to be feared. They are truly enemies. I remember when I was with Special Forces. Seems a thousand centuries ago. We went into a camp to inoculate the children. We left the camp after we had inoculated the children for Polio, and this old man came running after us, and he was crying. He couldn’t see. We went back there, and they had come and hacked off every inoculated arm. There they were in a pile. A pile of little arms. And I remember … I … I … I cried. I wept like some grandmother. I wanted to tear my teeth out. I didn’t know what I wanted to do. And I want to remember it. I never want to forget it. I never want to forget. And then I realized … like I was shot … like I was shot with a diamond … a diamond bullet right through my forehead. And I thought: My God … the genius of that. The genius. The will to do that. Perfect, genuine, complete, crystalline, pure. And then I realized they were stronger than we. Because they could stand that these were not monsters. These were men … trained cadres. These men who fought with their hearts, who had families, who had children, who were filled with love … but they had the strength … the strength … to do that. If I had ten divisions of those men, then our troubles here would be over very quickly. You have to have men who are moral … and at the same time who are able to utilize their primordial instincts to kill without feeling … without passion … without judgment … without judgment. Because it’s judgment that defeats us.

    We train young men to drop fire on people. But their commanders won’t allow them to write “f#&%” on their airplanes because it’s obscene!

  12. Anonymous says:

    Getting back to the opinion, I am dumbfounded that even in light of the atrocious deficiencies in sentencing, the Florida Supreme Court was content with the death penalty for this appellant. That they were so comfortable with the fundamental fairness of the trial that they were content to have someone die as a result.

    All I can say is that there is a special place in Hell for appellate judges who give so little thought to their cases, or decide cases without reading pleadings or the record, or who approach cases by asking themselves “How can I affirm this,” rather than asking themselves how they can objectively apply the law to the facts.

  13. Cossio says:

    I hear you Anon, and I would believe that place is in the Eight Circle (fraud) of hell. I am not sure what Bolgia:

    Bolgia 10: Here various sorts of falsifiers (alchemists, counterfeiters, perjurers, and impersonators), who are a disease on society, are themselves afflicted with different types of diseases (Cantos XXIX and XXX). Potiphar’s wife is briefly mentioned here for her false accusation of Joseph. In the notes on her translation, Dorothy L. Sayers remarks that the descent through Malebolge “began with the sale of the sexual relationship, and went on to the sale of Church and State; now, the very money is itself corrupted, every affirmation has become perjury, and every identity a lie;” so that every aspect of social interaction has been progressively destroyed.

    http://en.wikipedia.org/wiki/Inferno_(Dante)#First_Circle_.28Limbo.29

  14. Late Bloomer says:

    Wait…so Florida is now the Eighth Circle of Hell? But what about Disney World…don’t they still have Captain Eos?