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On December 8, the U.S. Supreme Court overruled a lower federal court that had given relief to Joseph Kindler, a Pennsylvania death row inmate.  Kindler had been convicted of murder in 1982, but then escaped to Canada from the Philadelphia Detention Center in 1984.  Prior to his escape, his attorneys had filed post-verdict motions challenging his conviction and sentence. Kindler was subsequently caught and, upon his return to the U.S., he tried to reinstate his claims. The state supreme court held that Kindler forfeited his appeal when he escaped. The U.S. Court of Appeals for the Third Circuit held that Kindler's issues could be reviewed in federal court because the state forfeiture rule was inadequate to support the judgment barring the appeal, given the discretion the state courts had in applying it.  The Third Circuit also upheld the federal District Court that had found the jury instructions in Kindler's trial to be unconstitutional under Mills v. Maryland (1988).  The U.S. Supreme Court held that discretion in a state rule does not render it inadequate to bar further review, and thus Kindler's escape forfeited his challenge to the jury instructions in both state and federal courts.

Franklin E. Zimring is a distinguished professor of law and scholar at the Berkeley School of Law who has followed the development of the modern death penalty over many decades.  Writing recently in the National Law Journal, Prof. Zimring said the recent action by the American Law Institute to withdraw the death penalty provisions  from its Model Penal Code deprives the punishment of any legal legitimacy.  "[T]he institute has pulled the intellectual rug out from under the current system of deciding between life and death," he wrote. Recalling that when the Supreme Court stopped the death penalty in Furman v. Georgia in 1972, he noted many states turned to the Model Penal Code to fashion new death penalty laws that the Court would accept.  But that model has now been discredited.  "Now that the creators of the modern system of death penalty sentencing have disowned that system, there is no support for distinguishing the current death penalty lottery from the lawless system that Furman condemned. The apparatus that the Supreme Court rushed to embrace in 1976 has been exposed as a conspicuous failure."

Linda Greenhouse, former Supreme Court writer for the New York Times, recently wrote about the reversal of a death sentence by the U. S. Supreme Court. The Court overturned George Porter Jr.'s death sentence because of the inadequate representation he received and the powerful mitigating evidence in Mr. Porter's life that his attorney failed to investigate and present to the jury considering his client's life.  The Court's opinion noted, "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." Ms. Greenhouse's article contrasted this ruling with one handed down last month in the case of Robert J. Van Hook, who also claimed inadequate counsel. In his case, the Court overtuned a federal appeals court's grant of relief, concluding that Van Hook's lawyer made "professionally reasonable" decisions regarding his case. Van Hook was also a military veteran, and like Porter, was also a product of a violent and abusive childhood.

Greenwood writes, "Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were - indeed, how common such childhoods were among the hundreds of death-row inmates… It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate. I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed…on one of that number."  Read the full article below.

Justices John Paul Stevens and Clarence Thomas disagreed over whether to grant a stay of execution to Cecil Johnson, Jr., who was was convicted of murder in a 1980 shooting at a convenience store in Tennessee. Johnson had been on death row for nearly three decades. Justice Stevens said this lengthy time between his sentencing and execution could amount to cruel and unusual punishment: "[T]he delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement," especially when most of the delay was caused by the state. Justice Breyer concurred with Stevens.  Both Justices have long urged their colleagues to address the issue of the extensive time inmates spend on death row.

Justice Thomas reacted strongly to Stevens's assertion, claiming that "as long as our system affords capital defendants the procedural safeguards this court has long endorsed, defendants who avail themselves of these procedures will face the delays Justice Stevens laments."

On November 30, the United States Supreme Court overturned the death sentence of George Porter, a Korean War veteran from Florida who had been convicted of murder in 1988. The Court stated that Porter's trial lawyer failed to investigate and present ample mitigating evidence, including the fact that Porter's battle service in the war left him severely traumatized.  The U.S. Court of Appeals for the Eleventh Circuit had held that such evidence would not have made a difference at sentencing. The Supreme Court accepted Porter's petition and without dissent issued its opinion the same day, stating, "Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man. His 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 in 1988."