United States Supreme Court Reaffirms That Defense Counsel Must Investigate for Mitigating Evidence in Death Penalty Cases


The United States Supreme Court reaffirmed this week in a case from Florida, Porter v. McCollum, that a defense lawyer must conduct a reasonable investigation to uncover mitigating evidence in preparation for a capital trial.

George Porter was convicted of capital murder and sentenced to death in the shooting of his former girlfriend. The lawyer appointed to represent him in the penalty phase of his trial failed to investigate and present evidence that Mr. Porter is a decorated Korean War veteran who was wounded and left traumatized by his service in two of the war’s most intense battles.

In its November 30 decision, the Supreme Court wrote that Mr. Porter’s “commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial.”

At the penalty phase, counsel presented only one witness — Mr. Porter’s ex-wife — and “left the jury knowing hardly anything about [Mr. Porter] other than the facts of his crimes.” In contrast, “the new evidence described his abusive childhood, his heroic military service and the trauma he suffered because of it, his long-term substance abuse, and his impaired mental health and mental capacity.”

The Eleventh Circuit Court of Appeals held that none of this new evidence would have made a difference in Mr. Porter’s sentence. The Supreme Court reversed, holding that the lawyer’s “decision not to investigate did not reflect reasonable professional judgment” and that there is a reasonable probability that, but for the lawyer’s failure to investigate, Mr. Porter would not have been sentenced to death.

The Court’s per curiam decision reaffirms the duty of counsel to investigate, even when the defendant is not cooperative. The Court wrote, “Porter may have been fatalistic or uncooperative, but that does not obviate the need for defense counsel to conduct some sort of mitigation investigation.”

The Court’s decision affirms that the death penalty cannot be upheld when it results from a trial where the defendant did not receive effective legal assistance.