Perhaps discussion of the November 30, 2009, opinion by the United States Supreme Court in Porter v. McCollum (08-10537) is best begun by reading the first paragraph of the opinion itself:
Petititioner 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.
Of note, the opinion is short by Supreme Court standards (only 15 pages), it is also unsigned and per curiam.
1. It’s a per curiam decision for the United States Supreme Court. What’s that telling us?
That this opinion is per curiam alone is worth some pondering. Usually, the High Court has lots of paper with its results — various justices writing their own explanations for the position they have taken on a case. Here, there is just fifteen pages whose words speak for the entirety. Consider Bush v. Gore, 531 U.S. 98 (2000), another per curiam opinion of the U.S. Supreme Court in a Florida case: it still had dissenting opinions.
That Porter is per curiam is telling. It’s powerful. PTSD in combat veterans is a mitigating factor that must be considered and respected by the states in death penalty cases.
2. Is Porter limited to its four corners? The opinion doesn’t read that way.
There are those that will argue that the Porter case is limited to the facts surrounding the crime for which George Porter, Jr. was convicted and it should not be considered as having a bigger impact. Prosecutors will undoubtedly argue that the Porter case turned mainly on the specific facts involved in the trying of the defendant for the murder of his ex-girlfriend and her current boyfriend, and the actions (or lack thereof) by both the prosecution and the defense in that trial. And it is true that the appellate arguments advanced by Porter are hinged upon ineffective assistance of counsel.
However, reading the opinion in its entirety, the Supreme Court appears to nip that challenge in the bud by its discussion of post traumatic stress disorder arising from combat. Not only does the opinion point out that a medical expert testified that Porter’s symptoms “…would ‘easily’ warrant a diagnosis …” of PTSD, the opinion also references testimony given by Veterans Affairs Secretary Eric Shinseki, where Mr. Shinseki testified that nearly 25% of Iraq and Afghanistan veterans seeking V.A. medical treatment were diagnosed with post-traumatic stress disorder (PTSD). Consider these words from the opinion:
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. … 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.
The opinion doesn’t limit itself to discussion of the circumstances of Porter’s defense representation at trial, nor to Porter’s own Korean combat trauma. Its application simply cannot be wedged into a narrow application to George Porter’s particular circumstance.
3. What happens now?
First: George Porter, Jr. receives a new sentencing hearing, based upon an unanimous United States Supreme Court decision and while his conviction stands, the sentence of death does not. Mr. Porter will not be executed by the State of Florida now.
Second: Across the country criminal defense attorneys representing clients facing the death penalty must take heed that PTSD (at least for combat veterans) is a valid mitigating factor for which evidence must be investigated and fully presented as a legally recognized defense to the state’s desire for capital punishment.
The real debate is whether (or when) the Porter PTSD defense can be applied not only to combat veterans but to all those who suffer from severe, disabling post traumatic stress disorder arising from life-threatening events (e.g. victims of kidnapping, torture, rape, etc.).