Thursday, December 17, 2009

The high court and "selective empathy"

In a previous blog post, I briefly referenced the U.S. Supreme Court's recent opinion in Porter v. McCullum. The high court unanimously reversed a death verdict because the defense attorney failed to present mitigating evidence at the penalty phase of the trial.

George Porter Jr. was convicted of shooting his former girlfriend and her new lover to death. The potentially mitigating evidence that the jury didn't get to hear included military heroism during the Korean War, post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

The decision was widely hailed by death penalty opponents and veterans' groups. But Linda Greenhouse, the Pulitzer Prize-winning journalist who covered the Supreme Court for the New York Times for 30 years and now teaches at Yale Law School, says the decision raises an important question about equity:

Is selective empathy better than no empathy at all?

Greenhouse was struck by "the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood."

She contrasted this with the court's unanimous opinion just last month in another case alleging inadequate representation and failure to adequately pursue mitigation themes in a death case. That case involved Robert Van Hook, also a military veteran, who robbed and murdered a man he picked up in a gay bar. In a decision that "sent chills down the spine of death-penalty opponents," the high court overturned an appellate reprieve, paving the way for Van Hook's execution.

Comments Greenhouse:

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.
The full essay, well worth your perusal, is online HERE.

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