“Selective Empathy”

Linda Greenhouse comments on two cases before the supreme court recently that both concerned an overturn of a death penalty.   Each claimed  inadequate representation of extenuating circumstances.  One was overturned, the other not. 

One case:

The veteran, George Porter Jr., was 53 years old when, after a night of drinking, he shot his former girlfriend and her new lover to death. It was 1986, and the Korean War had been over for 33 years. Mr. Porter saw heavy combat in Korea, and his life when he came home was a mess. It was evidently a mess before Korea as well: he escaped his violent and abusive family by joining the Army at the age of 17.

Sentenced to death in 1988 by a Florida judge for one of the murders, Mr. Porter filed two rounds of unsuccessful appeals in the Florida courts. He then turned to the federal courts, seeking to overturn his sentence by means of a writ of habeas corpus. His claim was that his lawyer’s failure to inform the sentencing jury about his wartime experience and its aftermath fell below the Constitution’s minimum standards for adequate representation.

The second:

The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse.The appeals court found that his trial lawyer had conducted only a perfunctory, last-minute search for mitigating evidence, and failed to inform the jury of such “unsettling and potentially mitigating” details as the fact that Mr. Van Hook had a history of mental illness; that his parents had repeatedly beaten him; that his father tried to kill his mother several times in his presence; and that his mother was committed to a psychiatric hospital when he was a young child. Introducing this evidence “could certainly have tipped the scales in favor of his life,” the appeals court said in overturning the death sentence.

In its unsigned opinion reversing that decision, Bobby v. Van Hook, the Supreme Court parsed the evidence that was presented and concluded that the lawyer’s decision “not to seek more” fell “well within the range of professionally reasonable judgments.” The American Bar Association standards in effect at the time of trial required no more, the opinion said.

What might have made the difference?  In the case of the first, the court decision cites a tradition of leniency in the light of honorable service  in battle.  Porter won two purple hearts, though he also went  awol.

There’s a tempting calculus here:  ‘two deaths plus two purple hearts’  makes a crime less bad than murdering one gay man’.  Someone that’s not a lot of comfort.