Featured Guest Blogger: Lyle Denniston

The Mind’s War Wounds…and the Constitution

In the annals of crime in America, the murders that George Porter, Jr., committed in Florida in October 23 years ago were tragically commonplace. A stormy relationship between a man and his live-in girlfriend, spiraling downward into threats, the man departs then returns to stalk the woman, his mood darkens, he steals a gun, spends a night drinking, and then he murders, twice. First, the former girlfriend is shot dead, then her new boyfriend is gunned down. The killer is tried and convicted of both killings and gets the death penalty for one, life in prison for the other.

Afterward, there is the almost inevitable string of court challenges and fruitless appeals. Finally, an appeal reaches the United States Supreme Court. In Porter’s case, the legal papers and their arguments initially seem as commonplace as the circumstances of the crime; the legal issues raised on the first pages have been raised by others hundreds, probably thousands, of times – usually to no avail. Issues about mental instability, and about a poor performance by a defense lawyer.

But, in Porter’s appeal, beginning on page 9, something begins to standout. It is a story of remarkable wartime heroism, of a 17-year-old volunteer soldier, fighting in Company B of the First Battalion of the 23rd Regiment of the 2nd Division of the United States Army in “two of the most devastating and important battles of the Korean Conflict: Kuni-Ri and Kapyong-Ni.” Porter’s company commander is being quoted. At Kuni-Ri, he recalled, “we held off the rest of the Chinese those precious few hours until the rest of the Eighth Army could withdraw, that was a very decisive thing because if we had not held off for just those few hours, the Chinese very likely would have gotten behind the whole Eighth Army.”

The story continues for a few pages, then there is a summary of the testimony of a neuropsychologist. George Porter, the doctor testified, “suffers from brain damage and post traumatic stress disorder.” At the time of the crime, “he suffered from extreme mental or emotional disturbance.’

And the jury, it turns out, had never heard the company commander or the doctor. They testified well after the trial was over, the death sentence imposed. The defense lawyer had never turned up their accounts. The Supreme Court, however, paid attention. And the result is that “post traumatic stress order” – or PTSD as it is now routinely called – has been elevated into an argument against the death penalty for veterans who can show that their stress originated in combat, on the battlefield.

Perhaps it is because the nation is at war – actually, at war on two battlefields – that made Porter’s story compelling, and led to the unanimous Supreme Court ruling in November requiring at least a new look at the evidence of his mental disorder, a look that almost certainly will spare his life.

The federal government’s Department of Veterans Affairs has diagnosed more than 90,000 combat veterans of Iraq and Afghanistan who may be suffering from PTSD. A private study by the RAND Corporation put the number at 300,000 – perhaps one out of every five of the 1,640,000 veterans who had served in those conflicts up through April 2008. Together with medical studies that show that PTSD’s effects last for years after exposure to combat, the incidence of such war-based disorders perhaps accounts for crimes committed long after the veteran has returned home.

Those statistics were offered as part of a compelling new study by Anthony E. Giardino, a Marine major now stationed at Camp Lejeune in North Carolina. His essay, “Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-traumatic Stress Disorder and Traumatic Brain Injury,” was published last year in the Fordham Law Review. (“Traumatic brain injury,” Giardino notes, is another consequence of war, now called the “signature injury” because so many veterans have suffered it during the explosion of roadside bombs or “improvised explosive devices”, so common in the Iraq and Afghan theaters or war.) Giardino’s essay is available here.

Giardino has suggested that the time may have come for there to be a complete ban on the death penalty for combat veterans whose PTSD or TBI was service-related, and was probably lingering at the time of their crimes. This is not to “excuse criminal actions,” he said, but simply to take account of diminished capacity, and therefore, diminished blameworthiness. The Supreme Court, in fact, has required, literally for decades, that juries considering whether to impose a death sentence must be allowed to hear every scrap of evidence that can be put before them to try to convince them to spare the perpetrator’s life. That is what is called “mitigating evidence,” and the Court has repeatedly nullified death sentences where a trial short-changed the opportunity to offer such evidence to the jury.

The Supreme Court ruling in the Porter case (it can be read here) did not go as far as Major Giardino has proposed. In the past, the Court has ruled out the death penalty for everyone who commits a murder who was under age 18 at the time, or was mentally retarded, but it has not been asked directly to do so for combat veterans demonstrated to have PTSD or TBI.

The Court applies a legal formula for deciding when to rule out the death penalty for a given group of individuals convicted of murder. It examines what juries have done, looking at the frequency of death sentences in such cases. It examines what state legislatures, and Congress, may have done that contributes to a trend. It looks at what other countries are doing that may bear on the answer they are seeking. And then, as a final factor, not capable of statistical or categorical definition, the Court applies what it has called its “own independent judgment” – a factor that appears to be an amalgam of moral sense, institutional caution, and constitutional proportionality.

In Porter’s case, the Court did not apply that formula. It simply ran over the evidence that was not offered to the jury, made its own assessment of that, and concluded that Porter’s new lawyers had succeeded in showing a probability that the omission of the wartime heroism and the PTSD lingering from it were enough to “undermine confidence” in the death sentence. That, at least, means the new lawyers get to try again. (The Court did not disturb Porter’s conviction for his crimes.)

Along the way toward that result, the Court did offer some more general comments on the “damaged” war veteran. “Our Nation,” the Court’s opinion said, “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.” It was not just that such soldiers served honorably, it added, but also that they may have suffered the same kind of “intense stress and mental and emotional toll that combat” exacts on soldiers.