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Inside Criminal Justice

The Death Penalty and Combat Vets

January 30, 2014 07:51:32 am

By Curtis Stephen

The lethal injection room at San Quentin State Prison in California. Photo by CACorrections, via Flickr

At the sprawling Allan B. Polunsky Unit—which houses some 300 people on death row in Livingston, TX—John Darrell Thuesen awaits word of a Texas Court of Criminal Appeals ruling that he hopes will spare his life.

The appeal is being closely watched across the country.

Before Thuesen, 30, was convicted on capital murder charges following a highly publicized trial in 2010, and became Inmate No. 99957, he was a decorated U.S. Marine lance corporal in Iraq, where he served from August 2004 to September 2005.

The trauma he suffered in combat, Thuesen argues, left him with impaired mental capacity—and should therefore exempt him from capital punishment.

Many legal experts agree.

“If someone has combat-related post-traumatic stress disorder (PTSD) or a traumatic brain injury (TBI) related to something that occurred in war, (he or she) should be entitled to a categorical exemption from the death penalty,” argues Anthony Giardino, an Atlanta attorney and Iraq war veteran who proposed the exemption in an article published in The Fordham Law Review in 2009.

“So many mistakes can be made in the courtroom that a jury might not always get a full picture about the impact of PTSD on some combat veterans. This isn't a run-of-the-mill felony or misdemeanor case.”

As America’s military presence in Iraq and Afghanistan draws down, the argument has become part of an emotional—and contentious—national debate about PTSD, with some experts claiming that it is just one of a number of factors that may drive violent criminality.

“It's a small subset of those with PTSD who act violently or get arrested – so you're actually talking about a subset of a subset,” argues Eric Elbogen, a clinical psychologist at a veterans' hospital in Durham, NC.

“If you look at statistics, PTSD is relevant—but so is financial instability, not being able to meet basic needs, and not having a support network. Just like civilians, veterans have the same risk factors for criminal arrest.”

There is no current data on the number of American military veterans on death row; nor are there figures on the number of former soldiers incarcerated nationwide, including those who served in Iraq and Afghanistan.

Vets in Prison

The most recent U.S. Department of Justice statistics date to 2004, when 140,000 veterans—most of whom fought in Vietnam—were held in federal and state correctional facilities. In that year, about 18,000 ex-soldiers were either serving life sentences or facing capital punishment.

But the impact of a proposed veterans’ exemption from the death penalty is potentially broad.

To date, more than two million Americans have, at some point, been deployed to Afghanistan and Iraq since the conflicts began in 2001 and 2003, respectively. And while the vast majority of returning soldiers won't be diagnosed with PTSD, a 2008 RAND study found that some 300,000 veterans met the criteria for it.

PTSD symptoms vary from heightened skittishness and aggressiveness to extended lapses of re-imagining traumatic experiences.

Some recent criminal cases have raised the question of the impact of a veteran’s combat-related trauma:

  • Gary Smith, a former Army Ranger who served in Afghanistan, was sentenced to 28 years in prison after being convicted in 2012 of shooting his roommate in Maryland;
  • Louis Bressler, who was deployed to Iraq, is currently serving a 60-year prison sentence after a 2009 conviction on first-degree homicide in Colorado;
  • Pierre Cole, who fought in Iraq, is serving a 50-year prison sentence after the 2004 murder of a Chicago storeowner.

A 2008 New York Times tally revealed 121 cases of recent combat veterans indicted on major criminal charges. But this may only be the tip of the iceberg, according to some researchers.

A pair of mental health practitioners—Hal S. Wortzel of the University of Colorado and David Arciniegas at the Baylor College of Medicine in Houston—argued in a 2010 article for The Journal of the American Academy of Psychiatry and the Law, that a death penalty exclusion for combat veterans diagnosed with trauma “warrants further consideration” by the criminal justice system.

Veterans advocates say the presence of veterans on criminal court dockets—including for violent, capital offenses—isn't surprising.

“You're talking about survivors who had multiple tours in war and are coming back with symptoms of layered PTSD,” says Shad Meshad, founder of the Los Angeles-based National Veterans Foundation. “It's like a bomb waiting to go off for some people.”

“They're back on the streets with no job, home foreclosures, and the worst economic times since the Great Depression,” adds Meshad, whose organization is funding a forthcoming book entitled The Attorney's Guide To Defending Veterans in Criminal Court. “So, what else can go wrong?”

Over the Edge

The Thuesen case underlines the tragedy of vets whose combat experience may have tipped them over the edge into committing violent acts back home, experts contend.

Just after 12:30 p.m. on March 9, 2009, police in College Station, TX, responding to a report of shots fired, found Thuesen—wearing blood-splattered jeans and a T-shirt—in the garage, near the body of his girlfriend, Rachel Joiner. According to police reports, the 21-year-old Texas A&M University student used her last breaths to identify Thuesen as the shooter.

He reportedly also used a .45-caliber handgun to fatally shoot her older brother, Travis.

At the time, Thuesen was paying for college with military benefits. But months earlier, his lawyer notes, he checked himself into a local veterans hospital—reporting that he was hearing voices.

By then, he already had a criminal record for violating a protective order filed against him by a previous girlfriend following a series of domestic violence incidents.

And while Thuesen's experiences in Iraq were examined at the trial, his appeal argues that the jury wasn't fully apprised of his psychiatric afflictions.

“The defense had a [Veterans Administration] doctor who wasn't allowed to testify about John's PTSD,” says Frank Blazek, an attorney for Thuesen.

“The state pushed back against the diagnosis with testimony about what police observed at the time of the shooting, (but) John is hopeful that the courts will seriously review his case.”

(A Polunsky Unit spokesperson said that while a staff psychologist is available for death row inmates, records don't indicate that Thuesen is using the service.)

High Court Ruling

In 2009, the U.S. Supreme Court overturned the death sentence of a Korean War veteran convicted in a 1986 double homicide after ruling that defense lawyers must present evidence of PTSD-related war trauma in cases involving veterans. Both California and Minnesota require special sentencing hearings for veterans diagnosed with PTSD.

During criminal trials for most ex-soldiers, an intense battle is typically waged over dueling interpretations of PTSD and mental health experts.

“On the prosecutorial side, there's always a little bit of fear that some malingering is going on,” explains Steven Jansen, chief operating officer for the Association of Prosecuting Attorneys. “That's why the prosecutor pushes for those defendants to be evaluated by the state.” 

Still, a PTSD-oriented defense guarantees nothing.

In 2008, Iraq war veteran Jessie Bratcher faced 25 years-to-life for a fatal 2008 shooting in Salem, OR. But after Bratcher's conviction, the judge ruled that he could serve his sentence at a mental hospital. This week, the state's psychiatric review board ruled -- after an exhaustive seven-hour hearing---that he's eligible for release without conditions.

 

But elsewhere, a jury in Torrance, CA rejected the PTSD defense of two-tour Iraq veteran Tymarc Warren, and sentenced him to life in prison last year for the 2011 murder of his girlfriend.

 

Another case in Arkansas involving Steven Russell Jr, tried last year for the fatal 2009 shooting of a 24-year-old woman in North Little Rock, further underlines the complex legal issues involved.  Even though prosecutors agreed that Russell had PTSDfollowing a tour of duty in Iraq that reportedly included the grim task of recovering bodies the state supreme court has since determined that he was fully culpable and upheld his sentence of life without parole.

 

Nevertheless, argues Blasker, the impact of war-related PTSD is so debilitating that combat veterans should be excluded from facing capital punishment entirely.

“It's not a get-out-of-jail-free card," said Blazek, who also represents Dominique Lasker, a decorated Army Sergeant who now stands accused of double homicide in Brookshire, TX.   "Life in prison without parole is severe punishment, but state executions should be for the worst of the worst.”

It's a point that anti-death penalty opponents are also seizing upon.

“We should be drawing short of taking the life of someone who was suffering mentally at the time of the crime,” says Bill Pelke, a Vietnam veteran and co-founder of the anti-violence advocacy group, Journey of Hope.

Nevertheless, critics argue there is no justification for excluding combat veterans from capital punishment on the grounds of health disabilities arising from their service.

“I am unaware of any case law, legal, medical or moral reasoning that could establish that all of those with PTSD or TBI should be exempt from the death penalty,” counters Dudley Sharp, a Texas-based victim's rights advocate.

Bret A. Moore, a former military psychologist, is similarly skeptical about the tendency to cite PTSD in criminal cases.

“It gives us an opportunity to blame the violence on something, he says. “But there's no significant data showing that people with PTSD are any more violent than people without it.

“My concern is that veterans are getting tagged as violent, which isn't accurate and does a disservice to those who are suffering from the disorder.”

Far more prevalent are former soldiers who have been incarcerated after domestic violence, DUI, and low-level assault cases, all of which experts say are often fueled by drug addiction, alcoholism, and homelessness.

Veterans Courts

Consequently, some 250 independent veterans courts—which receive federal and private funding—have been springing up in jurisdictions nationwide. These courts provide substance abuse and mental health treatment options in lieu of jail or prison time.

Editors Note: For more on Veterans Courts, please see Katti Gray’s TCR article, “When the War Comes Home”

For its part, the Veterans Administration vows that its four-year old initiative, dubbed the Veterans Justice Outreach Initiative, will enable the agency to specifically connect those veterans who have been incarcerated to VA care.

Barring the cost for treatment services, the White House budget calls for spending $33.7 million on the program this fiscal year. 

The debate over whether or not PTSD-afflicted veterans should receive a death penalty exemption is unlikely to be resolved soon. It took many years, and countless legal challenges, before the Supreme Court allowed such exemptions for minors or mentally disabled individuals convicted of capital offenses. 

Nevertheless, advocates hope the debate will draw more public attention.

“I'd like to see us change the dialogue,” says Robert Stanulis, who has consulted in numerous cases of troubled veterans nationwide as a neuropsychologist in Portland, OR. “Members of the military members aren't insane killers; they're trained to kill under certain circumstances.

“Soldiers should be held accountable, but we have to remember what war can do to a person.”

Curtis Stephen is a Brooklyn-based journalist whose work has appeared in The Daily Beast, Newsweek and AM New York. He welcomes comments from readers. His website is: http://curtisstephen.com

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