In yesterday’s New York Times, Professor Linda Greenhouse gives us a thought-provoking analysis of the “selective empathy” of the current U.S. Supreme Court as she compares the recent decisions in Porter v. McCollum (Porter lives) and Bobby v. Van Hook (VanHook dies).  After discussing in detail both opinions, Greenhouse concludes:

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.

Those who represent defendants facing prosecutors arguing in courtrooms that the accused should die at the hands of the state undoubtedly understand Professor Greenhouse’s acknowledgement that most folk setting on Death Row in this country have horrific personal histories.

The tragedy of Death Row goes far beyond the underlying crime and the suffering of the victim and the victim’s loved ones – there’s also the path woven through the past by the defendant to that fateful day when a crime was committed, a path with its own pain and shocking trauma. Porter’s case typifies this, as does Van Hook’s – and each of the Supreme Court opinions provide the details.

Comparing Porter and VanHook From a Criminal Defense Practitioner’s Perspective

However, both these unanimous, per curiam decisions have more to tell us, the legal practitioners who have devoted our lives to the defense of individuals charged with capital crimes and facing the death penalty. In both opinions, the quality of the underlying representation of Van Hook and Porter were at issue. Both alleged ineffective assistance of counsel — and it was upon this appellate point that the two cases reached the high court.

From this perspective, we must read Porter and Van Horn side by side without a focus upon the underlying facts of the crimes and instead ask ourselves if the minimally acceptable standard of representation was provided in each case. Without emotion. Lawyer to lawyer.

When this is done, and the examples provided by the Justices are considered (and they do give examples), then a disparity can be seen. A disparity that explains the different results in Porter and Van Horn in a way that a comparison of the crimes and the two condemned men cannot.  And it also explains how both opinions could have unanimous, per curiam results. 

Viewed in this way, Porter and Van Horn remind the criminal defense bar that each and every time a defense attorney undertakes the representation of a defendant in a case where the prosecutor is zealous to pursue the death penalty, there is nothing more important than what that defense lawyer does.

We, the attorneys defending against death, stand in the gap between life and death by our own level of care and attention to detail in the work that we do. Our focus cannot be upon the horror of our client’s background (though we sympathize) nor with any public repulsion of the crime at issue and their sometimes disgust with us, as counsel, for defending our clientele.

Our focus must always be upon doing the absolute best job that we can in the defense of each and every case. It is our duty to review our own efforts to insure we are providing “effective assistance of counsel” long before any appellate court begins its review of any ineffectiveness.