By Charles Bloeser
The former soldier grimaced for just an instant as he lowered himself into a Spartan metal chair opposite mine in this cramped space we shared. A chair like the one he’d lowered himself into for his monitored telephone call with his wife. Their relationship described in Hebrew scriptures as one in which they cling to each other, becoming “one flesh.” Separated here for legitimate security reasons by a thick sheet of glass. Those of us in “the biz” prefer to call that kind of visit a “no contact visit.” It just sounds a little better than “no human touch.”
Once he was seated, Henry and I greeted each other with mutual respect, but the veteran’s words were narrow and thin. He wore a state court detainee’s bright orange coveralls. But he couldn’t fill them out.
I glanced again at the booking photograph from six months earlier. And I looked back at this veteran. These couldn’t be the same person. They mustn’t be the same person.
Henry confirmed the basic facts that his wife had given me out in the lobby. He said he’d been arrested before. For the same thing. Henry told me it wasn’t that way before he was sent to Vietnam.
I assured him that I’d get in touch with the D.A. to jump start his legal process. And I suggested that he might want to visit with an attorney who specializes in 42 U.S.C. §1983 suits, a type of litigation used to seek redress for violations of a detainee’s or an inmate’s constitutional rights while incarcerated. This is the type of case that by federal statute would give Henry’s lawyer a way to get paid if they win. And at the time I met Henry, state and federal law had already begun to make sure that a Section 1983 suit would survive Henry’s death and perhaps provide financial support for his widow.
Before I talked to the D.A., I told Henry, I wanted to check on his medical status. I pulled a legal pad from my brief bag and handwrote the authorizations to release information that I would need to find out what the hell was going on. Henry labored to lift his arm, and each time he signed his name it took a while. For documents that required a notary to witness a detainee’s signature, you could usually find one among the jailers on shift.
I started by getting in touch with a nurse who worked on the jail’s medical floor. She told me that jail staff had put Henry on her floor but that for four months she had tried in vain to get Henry transferred to a hospital. “What’s wrong with him?” I asked.
“I don’t know for sure, but that weight loss isn’t a good sign.”
Henry had authorized me to get his medical records, and for a day or two jail staff gave me the run around. But I kept calling and made sure that jail administration understood that if they didn’t get Henry to a hospital soon, they could count on another lawsuit. Three days after his wife begged me to check on Henry, I went to visit him again. Henry was gone.
The jail had finally transferred him to a local hospital, where, by contract, detainees deemed worthy of hospital medical care received it under the watch of Sheriff’s deputies. But when I got there to see Henry, I learned he wasn’t there either.
Medical staff at hospital ran some long overdue tests. When the county’s bean counters learned the veteran had terminal cancer, Henry was promptly moved to the Veterans Administration hospital where he would soon die. A criminal assault charge against him had finally shown up, and an assistant D.A. I hadn’t met dismissed the case against the soldier that morning.
What could I do for her Henry now that he was about to enter an eternity I had been raised to believe exists but which I knew nothing about? Ask about his faith and if he had a favorite pastor? A priest? A rabbi? Make sure the hospital chaplain had been to see him? Whatever might be waiting for Henry was something far beyond the knowledge and expertise of this “attorney and counselor.”
I sat wordlessly next to Henry’s hospital bed and tried to see this man who was fading away inside an outsized hospital gown as the combat infantryman he was. But it was hard. I knew so little about this soldier I’d been asked to just check on. I learned early on that he had served in the U.S. Army and was honorably discharged.
Henry was one of 1,857,304 men inducted through the selective service system into the U.S. armed forces during the ten years designated as the Vietnam War.[i] That this man from the American Midwest was never the same after Vietnam was beyond question.
But I knew none of the specifics which Henry may have shared with the other vets who sometimes attended group downstairs in the VA hospital. I don’t think I ever saw Henry’s service record. Documents that I would have asked his wife for had it proved necessary to file for a writ of habeas corpus, I never saw.
For a lawyer whose life is all about asking questions, it seemed immoral to ask Henry anything more than what I had to know to help the man. This wounded husband and father had barely enough breath left to answer questions from medical staff. Henry now seemed to me like a man being washed down a drain, bit by bit, ever more rapidly falling away until there’s nothing left to see.
But as his days ran out, this Army veteran who had done what his country asked of him seemed to exude a measure of peace. And if it wasn’t peace that I saw, then perhaps it was the confidence that nothing he might encounter in a life hereafter could be nearly as bad as what he lived through in Vietnam. Recently departed British Historian Ben Shephard writes in his seminal work on the psychological price of war that “[i]t is futile to quantify the scale of atrocities in Vietnam, though historians have tried. We do better to heed the words of the most eloquent apologist for what went on there. Philip Caputo was the sensitive, bookish son of a middle-class Chicago household who came to find himself facing court martial for the cold-blooded murder of two innocent Vietnamese civilians. ‘The aspect of the Vietnam War which distinguished it from other American conflicts,” Caputo wrote, was ‘its absolute savagery. I mean the savagery that prompted so many American fighting men – the good solid kids from Iowa farms – to kill civilians and prisoners.’”[ii]
“Why are you so scared?” Henry’s words and his aim were as true as his fast-approaching death.
“I don’t know.”
Henry wanted his story told. “They can’t be doin’ this to th’ other folks they lock up,” he wheezed. So during a return visit he had me photograph him as he stepped ever closer to whatever lay beyond. I took several photos, had them enlarged, and carried them, along with a blown-up copy of Henry’s booking sheet with the veteran’s puffy faced booking photo, to the county commissioners.
Doing justice to Henry’s story, doing right by a wounded warrior’s death-bed mission to force others to do right, weighed heavy on me. One of the most important things I already did for every client I could was to tell his or her story. To introduce a living, breathing fellow human being to a court that possesses the power to judge and impose life-altering sentences. To urge that court to see the person standing next to me or seated with me at the defense table or shackled to a dozen others dressed in identical coveralls and stuffed in a courtroom’s jury box, as more. As more than just a number on a case file. As more than the next defendant on the court’s docket. But as the statistics cited by Andrew Cohen, whose 2013 article in The Atlantic I quote from in the part I’s third endnote scream out, that can be damned hard to do in America’s state courts if the State isn’t trying to kill your client.[iii]
You do the best you can, though, because you swore you would and because the outcome of a criminal case – regardless of whether a client goes to prison - frequently inflicts significant consequences on the lives and fortunes of not just your client but also your client’s family. A criminal conviction, the criminal record that follows it, and any collateral consequences from the conviction, e.g., loss of professional license, reduction in amount of VA disability compensation, termination of VA pension payments, deportation, denial of access to public housing and federal student aid, etc., can hurt and even destroy families.
The story of a combat veteran left to die on the medical floor of a modern, urban jail had to be told well-enough to encourage the kind of changes needed to save lives then and to save lives yet to come. And Henry trusted me to do that. He had no one else.
I don’t remember what I told the county commissioners that day. And it wasn’t important for them to remember my words anyway. If these elected officials who are charged with the responsibility for the County’s jail remembered the images of a dying veteran and in those images remembered well the story that Henry tasked me to deliver to them, then Henry is the one who should get credit.
He’s the wounded warrior who’s responsible for any good that came from a story that he should never have been forced to write. He’s the combat veteran who tried to save the men of his platoon on the other side of the planet. He’s the American soldier who insisted that by his death here at home, others jailed – no matter the reason - must not be left to rot and to die.
From Henry’s arrest more than a half-year earlier until his death in a VA hospital, the law never stopped assuming that Henry was innocent.
Combat stress in America
Common law courts in the United States have decreed that persons like Henry – who are jailed before they’ve been convicted of a crime – and those imprisoned pursuant to a criminal conviction, have a right to “adequate” medical treatment while held. That right is, according to American courts, based in the Eighth and Fourteenth Amendments to the United States’ written constitution. At least in theory, state and federal legislative and regulatory law abide by the courts’ decisions. They also determine what steps a detainee or inmate must follow in order to get a shot at having these rights enforced.
This right to treatment applies to those persons who suffer from shell shock aka combat stress aka PTSD. It also applies to persons who suffer from PTSD despite the fact that they’ve not personally been in combat.
Scholars have looked hard for answers to a question repeated in a 2014 article in New Republic:[iv] “The U.K. Understands How to Treat PTSD. Why Does the U.S. Lag Behind?”
London-based researchers from King’s College and the Western Education Centre found some possible reasons for these differences during their analysis of studies from several countries that examined veterans returning from Iraq and Afghanistan deployments, as well as some from the Gulf War:
“US and UK forces deployed are demographically different from each other. US forces tend to be younger, of lower rank, and contain more reservists, who are to have increased vulnerability to post-deployment mental health problems in both countries. The US forces have a lower leader to enlisted soldier ratio, which may be a meaningful factor as good leadership appears to be protective of mental health.”[v]
Differences among research methodologies employed in the studies they examined are among other reasons cited for reported differences.
More than twenty suicides per day among active-duty military, national guard troops, reservists, and separated veterans from U.S. Armed Forces[vi] prompt experts to ask, “how did we get the data we’re using to find solutions?”
The author of A War of Nerves: Soldiers and Psychiatrists in the Twentieth Century, British historian Ben Shephard argues that PTSD’s inclusion in the psychiatric communities’ diagnostic bible led to an ‘objectivication’ of the condition, in the sense that symptoms, diagnostic questionnaires and psychometric devices has been ‘standardised’. The whole process has become ‘all ‘objective’, taken out of the clinician’s hands.’[vii]
One resulting threat to acquiring good data and to effectively treating those who suffer from combat stress is, one psychiatrist told this researcher, a “lack of nuance” in what, exactly, we say that PTSD is.
Decades of medical practice have allowed the physician to see the signs of trauma in a broad range of patients who’ve served in the military and those who haven’t. In patients who’ve been in combat and those who have not. And while he does not suggest that a survivor of domestic violence has no claim to the label or resources associated with a PTSD diagnosis, there is, he agrees, a clinically meaningful difference between the kind of trauma that person suffers and the nature of the trauma experienced by members of the armed forces who must decide again and again which of the identically dressed men, women, and children in a dust-soaked, IED-laced town square can and might kill you or those you’ve sworn to protect.
This is the second instalment of a two-part article that relates these events in Henry’s life. The first part is available here
Charles Bloeser is the creator of combatresearchandprose.com, a new open-source applied research initiative that will continue to contribute to bridging the gap in experience, knowledge, and understanding that divides those who’ve never served under arms from those who have. He’s the civilian son and grandson of veterans and a lawyer who’s spent most years arguing criminal and constitutional issues in America’s state and federal trial and appellate courts. Among his published research are works re Libyan-supported Jihadi terrorism in the Western Hemisphere, civilian-military law enforcement relations in the U.S., and the demands that an increasingly complex national security environment make for special operations forces. His research agenda includes national security/defense/veterans issues, with special attention to those facing challenges from combat stress/PTSD/TBI etc.
Notes
[i] Selective Service System. www.sss.gov. Data accessed May 9, 2018.
[ii] Ben Shephard. A War of Nerves: soldiers and psychiatrists in the twentieth century 371. Harvard University Press (Cambridge, Massachusetts 2001) (quoting Philip Caputo, A Rumor of War (London, 1978), pp. xvi-xvii.): “The evil was inherent not in the men – except in the sense that the devil dwells in all of us – but in the circumstances under which they had to live and fight. The conflict in Vietnam combined the two most bitter kinds of warfare, civil war and revolution, to which was added the ferocity of jungle war. Twenty years of terrorism and fratricide had obliterated most reference points from the country’s moral map long before we arrived. . .. The marines in our brigade were not innately cruel, but on landing at Da Nang they learned rather quickly that Vietnam was not a place where a man could expect much mercy if, say, he was taken prisoner. And men who do not expect to receive mercy eventually lose their inclination to grant it.” Id.
[iii] Death-penalty law in the United States guarantees a defendant the right during the sentencing phase of a capital trial (“stage 2”) to tell his/her story in the form of “mitigating evidence” that jurors may take into account as they decide whether to sentence to death a defendant they’ve found guilty.
[iv] Sarah Sloat. “The U.K. Understands How To Treat PTSD. Why Does the U.S. Lag Behind?” New Republic. February 28, 2014.
[v] Elizabeth J. F. Hunt, Simon Wessely, Norman Jones, Roberto J. Rona, and Neil Greenberg. PTSD in The Military: Prevalence, Pathophysiology, Treatment: the mental health of the UK Armed Forces: where facts meet fiction. European Journal of Psychotraumatology 2014 (2014) 5: 23617. http://dx.doi.org/10.3402/ejpt.v5.23617
Among additional resources is Kimberly A. Hepner, Carol P. Roth, Elizabeth M. Sloss, Susan M. Paddock, Praise O. Iyiewuare, Martha J. Timmer, and Harold Alan Pincus, Final Report on Quality of Care for PTSD and Depression in the Military Health System. RAND National Defense Research Institute 2017.
[vi] In June 2018, the U.S. Veterans Administration released its newest National Suicide Data Report. VA Press Secretary Curt Cashour explained that this new report reflects greater precision in reporting the VA’s suicide data for U.S. veterans. “The report shows the total is 20.6 suicides every day. Of those, 16.8 were veterans and 3.8 were active-duty service members, guardsmen and reservists.
[vii] A War of Nerves: Soldiers and Psychiatrists in the Twentieth Century at 385. Harvard
University Press 2001. [author notes in chapter 27, fn. 3 that, “I have stolen the phrase
‘Chinese menu’ from G. E. Vaillant, ‘The disadvantages of DSM-III outweigh its advantages’, AJP 141 (1984), p. 543.]
Image Source: https://commons.wikimedia.org/wiki/File:US-Army-troops-taking-break-while-on-patrol-in-Vietnam-War.jpg
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