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United States: Supreme Court Addresses Ineffective Assistance of Counsel in Death Penalty Case

(Dec. 17, 2009) The United States Supreme Court has overturned a convicted murderer's death sentence, ruling that his counsel's failure to investigate the defendant's background prior to the penalty phase of his trial fell below an objective standard of reasonableness, and that, had the judge and jury learned of the defendant's background, he might not have been sentenced to death.

In July 1986, George Porter murdered his former girlfriend and her boyfriend. At trial, near the completion of the State's case in chief, he pled guilty. Thereafter, while his appointed counsel had over a month to prepare for the penalty phase of the trial, the attorney failed to investigate Porter's background to gather evidence that might convince the jury not to recommend the death penalty. The jury recommended a death sentence for both murders, and the trial court accepted this recommendation as to one of them.

In a subsequent state proceeding for postconviction relief, Porter presented extensive mitigating evidence not presented at the original trial, including his extremely abusive childhood, his participation in two horrific battles as a soldier in the Korean War, and testimony by a neuropsychology expert of his brain damage and extreme mental or emotional disturbance. Despite this new evidence, the judge concluded that the trial judge and jury still would have imposed the death penalty. The Florida Supreme Court affirmed. Porter filed a federal habeas corpus petition. The district court held that Porter's trial counsel's ineffective assistance at the penalty phase violated constitutional standards and that Porter was prejudiced by this deficient performance. The U.S. Court of Appeals for the Eleventh Circuit reversed, ruling that the district court should have deferred to the state court's findings. The Supreme Court agreed to hear the case.

The Supreme Court first ruled that under the prevailing professional norms at the time of Porter's trial, his counsel had an obligation to conduct a thorough investigation of Porter's background to identify mitigating evidence and that his counsel's failure to interview witnesses or request records fell well short of these norms. It then ruled that had Porter's counsel introduced evidence of Porter's background – including his heroic military service, his struggles to regain normality after returning from war, his childhood history of physical abuse, and his brain abnormality – a reasonable probability existed that the jury and sentencing judge would not have imposed the death penalty. The Court ruled that the Florida Supreme Court's conclusion that Porter was not prejudiced by his counsel's ineffective assistance was contrary to clearly established federal law, because the prejudice requirement only requires a reasonable probability sufficient to undermine confidence in the outcome of the trial, a standard easily met here. (Porter v. McCollum, No. 08-10537 (Nov. 30, 2009), available at