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Zombie SCOTUS: “literally as I say zombies” – Korean war veteran reprieved by Supreme Court

June 19, 2012

The 2009 case, Porter v. McCollum, is the only instance of “zombies” in an opinion of the US Supreme Court. The opinion is written “per curiam”, so all the 2009 justices can take credit for the usage (Roberts, Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor).

Recall previously Scalia’s Lamb’s Chapel concurrence with word “ghoul” and Brandeis’s “Frankenstein monster” in Liggett.

zombie scotus

GEORGE PORTER, JR., Petitioner v.
No. 08-10537
130 S. Ct. 447

The case is about a death row inmate appealing his death sentence by claiming ineffective assistance of counsel under the Sixth Amendment based on his lawyer “failed to investigate and present mitigating evidence” regarding significant prior life history of family abuse and post-traumatic stress from fighting for the US military during the Korean War. The Court here does not consider the appeal of conviction but does address the overlooked life history as regards death sentencing:

The depositions of his brother and sister described the abuse Porter suffered as a child. Porter routinely witnessed his father beat his mother, one time so severely that she had to go to the hospital and lost a child. Porter’s father was violent every weekend, and by his siblings’ account, Porter was his father’s favorite target, particularly when Porter tried to protect his mother. On one occasion, Porter’s father shot at him for coming home late, but missed and just beat Porter instead. According to his brother, Porter attended classes for slow learners and left school when he was 12 or 13.

To escape his horrible family life, Porter enlisted in the Army at age 17 and fought in the Korean War. His company commander, Lieutenant Colonel Sherman Pratt, testified at Porter’s postconviction hearing. Porter was with the 2d Division, which had advanced above the 38th parallel to Kunu-ri when it was attacked by Chinese forces. Porter suffered a gunshot wound to the leg during the advance but was with the unit for the battle at Kunu-ri. While the Eighth Army was withdrawing, the 2d Division was ordered to hold off the Chinese advance, enabling the bulk of the Eighth Army to live to fight another day. As Colonel Pratt described it, the unit “went into position there in bitter cold night, terribly worn out, terribly weary, almost like zombies because we had been in constant–for five days we had been in constant contact with the enemy fighting our way to the rear, little or no sleep, little or no food, literally as I say zombies.” 1 Tr. 138 (Jan. 4, 1996). The next morning, the unit engaged in a “fierce hand-to-hand fight with the Chinese” and later that day received permission to withdraw, making Porter’s regiment the last unit of the Eighth Army to withdraw. Id., at 139-140.

Less than three months later, Porter fought in a second battle, at Chip’yong-ni. His regiment was cut off from the rest of the Eighth Army and defended itself for two days and two nights under constant fire. After the enemy broke through the perimeter and overtook defensive positions on high ground, Porter’s company was charged with retaking those positions. In the charge up the hill, the soldiers “were under direct open fire of the enemy forces on top of the hill. They immediately came under mortar, artillery, machine gun, and every other kind of fire you can imagine and they were just dropping like flies as they went along.” Id., at 150. Porter’s company lost all three of its platoon sergeants, and almost all of the officers were wounded. Porter was again wounded and his company sustained the heaviest losses of any troops in the battle, with more than 50% casualties. Colonel Pratt testified that these battles were “very trying, horrifying experiences,” particularly for Porter’s company at Chip’yong-ni. Id., at 152. Porter’s unit was awarded the Presidential Unit Citation for the engagement at Chip’yong-ni, and Porter individually received two Purple Hearts and the Combat Infantryman Badge, along with other decorations.

Here the Court, exercising what Linda Greenhouse calls “Selective Empathy” reverses and remands for further proceedings. There were were two dissenting judges in the Florida Supreme Court but the majority decision of:

the Florida Supreme Court, following the state postconviction court, unreasonably discounted the evidence of Porter’s childhood abuse and military service. It is unreasonable to discount to irrelevance the evidence of Porter’s abusive childhood, especially when that kind of history may have particular salience for a jury evaluating Porter’s behavior in his relationship with Williams. It is also unreasonable to conclude that Porter’s military service would be reduced to “inconsequential proportions,” simply because the jury would also have learned that Porter went AWOL on more than one occasion. Our Nation 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. Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter. The evidence that he was AWOL is consistent with this theory of mitigation and does not impeach or diminish the evidence of his service. To conclude otherwise reflects a failure to engage with what Porter actually went through in Korea.
[citations omitted]


We do not require a defendant to show “that counsel’s deficient conduct more likely than not altered the outcome” of his penalty proceeding, but rather that he establish “a probability sufficient to undermine confidence in [that] outcome.” This Porter has done. [citing Strickland v. Washington, 104 S. Ct. 2052]

The petition for certiorari is granted

Be sure to read the Linda Greenhouse article about Porter. Consider her question “Is selective empathy better than no empathy at all?”; and “underscore the anomaly of the mercy the court bestowed” on a Korean war veteran haunted by zombies.

Unsurprisingly, this case has already been distinguished by numerous subsequent cases and the unique facts may mean it will have little precedential value. But there is already a variety of commentary about this case in the Law Reviews including (with apologies that these links are behind a lexis paywall): implications for criminal responsibility of Middle East war veterans, the possibility of special veterans courts, and also commentary on the Supreme Court’s renewed interest in the law of lawyering.

In related war zombie stories, recall the ZombieLaw post about “Cold War Veteran Denied PTSD services”. And note also the Korean connection: that Korea is associated to zombies in 1950’s as a zombie government of the Soviets (See also “Koreans are Soviet Zombies”) and more recently regarding North Korean zombie computer hacker botnets and currently a popular mixed martial artist, Jung Chan-Sung, fights under the nickname “The Korean Zombie”. Finally, I would highlight that the Porter case also originates in Florida.


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