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Post-combat stress as a defense

The Supreme Court, in a sign of the times for a nation at war on two fronts, on Monday put defense lawyers on notice that they should be prepared to use evidence of “post-traumatic stress disorder” to try to save accused veterans from the death penalty.  Ruling without full briefing or a hearing, and with no dissent noted, the Court apparently overturned the death sentence of a Florida veteran whose “combat service unfortunately left him a traumatized, changed man,” as the Court put it in Porter v. McCollum (08-10537), involving Korean war veteran George Porter, Jr.  The unsigned opinion can be found here.

“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 opinion said.  “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.”

Because the case turned mainly on the specific facts of the prosecution and defense of Porter for murdering his former girlfriend and her boyfriend, it is not clear that the ruling will have a direct impact on other criminal cases in which combat stress might be a key factor. However, parts of the Court’s opinion read as if the Justices did intend to speak more broadly.

It noted that post-traumatic stress disorder “is not uncommon among veterans returning from combat,” and cited testimony before Congress this year by Veterans Affairs Secretary Eric K. Shinseki that “approximately 23 percent of the Iraq and Afghanistan war veterans seeking treatment at a vA medical facility had been preliminarily diagnoses with PTSD.”  It also noted that, in Porter’s case specifically, a medical expert testified that his sysmptoms “would ‘easily’ warrant a diagnosis” of PTSD.

The Court also cited, clearly with approval, laws of two states that provide special legal protection for veterans involved in crimes and suffering from combat stress — a California law providing a special hearing for a person convicted of crime who claims the offense resulted from PTSD or other conditions stemming from military combat service, and a Minnesota law providing a special sentencing process for a vetrer dianosed with a mental illness.

In Porter’s case, the Court did not say explicitly that it was overturning his death sentence for his 1986 crimes.  Rather, it concluded that he was entitled to relief in a post-conviction federal habeas case, on the theory that the jury, had it heard about his wartime experiences and other evidence about mental problems, it might well have refused to recommend a death sentence.   The Court sent the case back to the Eleventh Circuit Court, presumably to order a new sentencing proceeding.  The Court’s order did not say what the Justices expected to happen next.

Porter was wounded in two bouts of heavy fighting during his Army service in Korea.  When he sought habeas relief after losing challenges in state court, his former commanding officer gave what the called a “moving description of those two battles” — testimony that was “only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phaqse of his trial in 1988.”

Although a federal District judge had ruled in Porter’s favor, finding that the defense lawyer’s failure to put on the mitigating evidence resulted in a violation of his right to counsel, the Eleventh Circuit disagreed, finding that the Florida Supreme Court was justified in finding that Porter did not suffer any prejudice from the omission of that evidence.

In its order, the Supreme Court said Porter was entitled to prevail on his habeas claim that his defense lawyer at trial had provided ineffective legal assistance.  “The Florida Supreme Court;s decision that Porter was not prejudiced by his counsel’s failure to conduct a thorough — or even cursory — investigation is unreasonable.”

Quoting the dissenting judges on the state court, the Supreme Court opinion remarked that ” ‘there exists too much mitigating evidence that was nto presented to now be ignored.’ ”

The Court, however, voted to leave intact Porter’s guilty verdict for the murder of his girlfriend and her boyfriend.  Thus, Porter’s remaining legal opportunity is for a new sentence, presumably with all of the favorable evidence put before the jury.