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Greenhouse’s Distorted Account of “Selective Empathy”



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New York Times blogger Linda Greenhouse contends that the Supreme Court displayed “selective empathy” when it recently ruled unanimously in favor of the ineffective-assistance-of-counsel claim in Porter v. McCollum and unanimously against the same type of claim in Bobby v. Van Hook.  But Greenhouse’s claim is badly flawed.

In order to make Van Hook’s claim appear stronger than it was, Greenhouse grossly misleads the reader as to the Court’s understanding of the record.  She writes:

The appeals court found that his trial lawyer [1] had conducted only a perfunctory, last-minute search for mitigating evidence, and [2] failed to inform the jury of such “unsettling and potentially mitigating” details as the fact [a] that Mr. Van Hook had a history of mental illness; [b] that his parents had repeatedly beaten him; [c] that his father tried to kill his mother several times in his presence; and [d] that his mother was committed to a psychiatric hospital when he was a young child.  [Brackets added.]

She then adds merely that the Supreme Court “parsed the evidence that was presented.”

Greenhouse’s summary account of the Sixth Circuit panel’s ruling is largely accurate (with the exception, I believe, of proposition 2(a)).  But Greenhouse fails to inform the reader that the Supreme Court emphatically rejected the Sixth Circuit’s conclusion (1(a)) that counsel’s investigation of mitigating evidence was “last minute” or perfunctory:  “The Sixth Circuit, in short, was simply incorrect in saying Van Hook’s lawyers waited until the ‘last minute,’” “[n]or was the scope of counsel’s investigation unreasonable.”

Greenhouse also fails to inform the reader that the Supreme Court seems also to have rejected propositions 2(a), 2(b), and 2(c).  The Court labels “a gross distortion” the Sixth Circuit’s assertion that Van Hook’s attorneys had found only “a little information about his traumatic childhood experience.”  The Court states expressly that the “trial court learned” that Van Hook “grew up in a ‘combat zone,’” that he “watched his father beat his mother weekly [and] saw him hold her at gun- and knife-point,” that he “was beaten himself at least once,” that he “attempted suicide at least five times,” and that he suffered from “borderline personality disorder.”  (Greenhouse’s reference to “the jury” is mistaken:  Van Hook waived his right to a jury trial, and the sentencing was done by a three-judge panel.)

In other words, based on the Supreme Court’s understanding of the record in Van Hook, the relevant facts in Van Hook and Porter have far less in common than Greenhouse suggests.

Greenhouse is also tendentious in contending that the “most notable feature of all [in Porter] was the sympathy that all nine justices displayed for” Porter.  As the Court states in Porter (and as Greenhouse at one point fairly summarizes), the prevailing legal test for ineffective-assistance-of-counsel claims requires, as one element, that the claimant show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Determining whether that element was satisfied required that the justices assess how a sentencing judge and jury would have responded to the new evidence.  That test, in theory at least, is very different from the justices’ indulging their own sense of “sympathy” (though I acknowledge that the test is sufficiently loose that it may not block justices from smuggling in that sentiment).


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