By Charles Bloeser
Henry[i] was a veteran who nearly died from combat injuries in Vietnam. In his dreams, his platoon mates repeatedly kicked him and struck him, screaming at Henry that it was his fault that they were dead. His fault that their children were now orphans. When it all became too much for him, Henry exploded like the hand grenades he’d counted on to keep his platoon alive.
The last time Henry exploded led to another arrest for domestic violence. He’d again been booked into the county jail. Taken in through the concealed sally port of an uninspired structure in a city whose architects knew better. Just a stack of a dozen oversized orange Lego blocks with box windows that were easily missed by the person on the street with bad eyesight. Orange Lego blocks of all the same size and shape.
Same size. Same shape. Same cellular structure devoid of human senses and lacking a soul. Really not that different from the way a lot of folks think of the men and women inside. Veteran or not. No different from any other county inmate wearing orange coveralls and shackled one to another, waiting in line each morning to board the bus that will carry them to the county courthouse and another court appearance in an elegant structure built around a cattle yard. Words about justice or some such thing carved in stone high across its facade.
But not Henry.
“Are you a lawyer?”[ii]
The woman who asked the question was African American and appeared to be in her early 50s. She was slightly overweight and wore a simple beige dress and flat soled shoes that had begun to fray. Her purse had slipped off the fashion cycle years ago and was well-worn, its contents pushing hard against something its manufacturer had tried to pass off as leather.
“Yes, ma’am, but I’m very busy right now.”
“D’ya think ya could take just a few minutes to talk with my Henry?”
“’afternoon’s gettin’ on, ma’am, and the federal courthouse is quite a hike.”
“My Henry’s been ‘ere six months and he still ain’t got no lawyer.”
Six months? Shit. The constitution guarantees the folks shackled inside this jail a lawyer if they can’t afford one themselves.
The U.S. Supreme Court said so. ‘back in 1963. In a case that arrived at 1 First Street NE by handwritten letter from a state inmate with an eighth-grade education. The letter’s author, Clarence Earl Gideon, was serving a five-year sentence after defending himself and losing at trial; the judge presiding over his trial determined that Florida state law did not give him the authority to grant Mr. Gideon’s request for an attorney.[iii]
This woman’s Henry had fallen through the cracks.
“What’s he in for?” I said.
“They say he hit me. But he didn’ mean it, mister. He’s sick, real sick.”[iv]
Most of the violent crimes inflicted on folks we’ve shared our lives with are often hard to punish and prevent, especially if a case lives or dies on the testimony of the victim. I learned as an assistant district attorney fresh from law school and the bar exam that the State’s effort to enforce the rule of law in this arena would often fail right out of the gate. State legislatures tried to improve a State’s chances of “delivering justice” to these perps by emphasizing that it’s the State – not the victim – who decides whether to prosecute these crimes. But that technicality mattered little to the victims whose rights we sought to vindicate. Frequently, a woman who had finally managed to report her latest beating would by the time she signed her name swearing to the facts that she just wrote, decided that she couldn’t go through with it.
And both the DA’s office and the victim we hoped to help knew why: the devil we might know only on paper was the devil she knew personally all too well. And a prosecutor’s or victim-witness coordinator’s claim that “we’ll keep you safe” was aspirational, at best. Other than when the WITSEC folks said those words to one of my federal clients with a price on his head, they were just that. A few words that we all very much hoped would prove true.
But for this combat veteran’s wife, Henry was never the kind of man who could be distilled into simple words like “defendant” and “perpetrator and “abuser.” There was no black and white in being struck by a man she knew had always loved her but whose best efforts to get relief from the symptoms of war had proved little more than the American version of a snipe hunt.[v]
No good v. evil. No right v. wrong. No criminal defendant and victim.
What this woman knew all too well was that her husband was still paying what Columbia University Mailman School of Public Health Professor Emerita Dr. Jeanne Stellman calls the “lifelong cost of war.” A man who did what his country asked of him and who now suffered in silence like a lot of other veterans.[vi]
For Henry and far too many veterans wounded in wars visible and wars concealed, the lifelong cost of war includes a criminal record to make their lives and those of their families even harder than they already are. As explained in a 2013 Daily Beast article titled “From PTSD to Prison: why veterans become criminals,” “[a]fter Vietnam, the number of inmates with prior military service [in U.S. armed forces] rose steadily until reaching a peak in 1985, when more than one in five was a veteran. By 1988, more than half of all Vietnam veterans diagnosed with PTSD reported that they had been arrested; more than one third reported they had been arrested multiple times.”[vii]
“We can’t ‘fford no lawyer, let alone bond. Henry’s not goin’ anywhere anyway. He’s dyin’ here. Please, Mr. Lawyer, will you check up on ‘im?’”
I went back through security and down a long hall to a compact office shielded by glass. I asked for a copy of Henry’s booking sheet. Ever-rotating young, poorly-paid, scared-by-their-shadow detention officers shared tightly clustered desks with those who knew what they were doing.
Henry’s booking sheet from six months earlier included a booking photo and basic identifying information, along with the offense name and statutory citation for the law the arresting officer was recommending Henry be prosecuted for.
I asked the officer at the desk to have Henry brought down to one of the locking attorney meeting booths. Allegedly soundproofed metal and glass chambers not much larger than a traditional London telephone box and with none of the elegance. None of us who met clients in these spaces had cause to claim that they were bigger on the inside than the outside.
I studied a client file while waiting to meet the veteran in the booking photograph, a pudgy, middle-aged, African-American man with short cropped hair on a balding head.
But that was not the man the jailer brought me.
Yes, this was the Henry whose wife asked me to check on him. The Vietnam veteran she said had been here six months without a lawyer. The man she told me was real sick and didn’t mean to hit her. The wounded warrior she said was dying inside this oblivious stack of orange Legos from which no guttural cry, no anguished scream could escape.
The Henry I met that day could barely hold his own weight. What little I could see of Henry’s skin hung loosely. His face hollowing out.
This is the first instalment of a two-part article that relates these events in Henry’s life. The other 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.
[i] “Henry” is a pseudonym for a now deceased Vietnam veteran who was introduced to me and whose brief relationship with me was, as best I can confirm, the same way that I report it here, except for minor nonessential details and limited artistic license. Having over the years lost independent recollection of certain events, though, I’ve used as an accuracy check other writings that I made about these matters much closer in time to the events which I report here.
By sins of commission or omission, “Henry” had been left to rot and die on the medical floor of a midwestern city’s urban jail. Because informal persuasion got Henry transferred from the jail to hospital in mere days, there was no need for me to file a petition for writ of habeas corpus or anything else in either the local state court or in the U.S. district court. There was no need for me to enter my appearance or show up in court for him. Henry knew about Section 1983 litigation. Henry’s wife told me up front that the couple didn’t have money for a lawyer, and I quickly came to believe that it would be immoral for me to charge them a fee.
Almost nothing I did for Henry fits the technical definition of “practicing law.” Still, my brief relationship with the combat-wounded soldier remains among those experiences that most remind me that it’s a sobering privilege to list among the items in my skill set the tools and lenses of a lawyer.
[ii] The events that are reported in this essay occurred during the years that the author practiced law in Oklahoma, prior to his return to Tennessee.
[iii] Clarence Earl Gideon v. Louie L. Wainwright, Director, Division of Corrections, 372 U.S. 335 (1963) gave the Supreme Court an opportunity to answer the question of whether the right to counsel found in the Sixth Amendment to the United States Constitution also applies to defendants facing felony charges in state courts. Subsequent developments in the law extends this Sixth Amendment right to counsel to state criminal defendants who face any possible imprisonment. “Reason and reflection,” Justice Hugo Black wrote for a unanimous court, “require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him.”
The idea that criminal defendants are entitled to legal counsel was a no-brainer for the second president of the United States. “Though he struggled at times with the lawyer’s challenging charge, [John] Adams kept his hand to the plow. He did not let go even when appointed to represent British soldiers who had killed five Bostonians after a shouting, cursing crowd ‘pelted the despised redcoats with snowballs, chunks of ice, oyster shells and stones.’ Adams represented those who threatened the very liberty he loved, ‘firm in the belief, as he said, that no man in a free country should be denied the right to counsel and a fair trial.'” Charles Bloeser, Confessions of an American Lawyer, 74 Oklahoma Bar Journal 608 (2003)(quoting David McCullough, John Adams 66 (2001)).
Well, that’s the way it’s supposed to work: “. . . Today, there is a vast gulf between the broad premise of the [Gideon v. Wainwright] ruling and the grim practice of legal representation for the nation’s poorest litigants. Yes, you have the right to a court-appointed lawyer today – – the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published [in 2012], often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer – often just a “potted plant” – by your side, you’ve earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial.” Andrew Cohen. “How Americans Lost the Right to Counsel, 50 Years After Gideon.” The Atlantic (March 13, 2013).
[iv]“Although PTSD can arise after a variety of traumatic events, war trauma made a substantial contribution to the current conceptualization of PTSD. While the terminology for PTSD only appeared in the psychiatric classification system in 1980, knowledge of battle-related psychological problems goes back to antiquity. Mythical Greek heroes Ajax and Hercules both succumbed to their emotional wounds, not injuries of combat. In 1688, Swiss physician Johannes Hofer wrote about an unusual grouping of symptoms in Swiss mercenaries fighting in France or Italy, which he termed nostalgia. Irritable heart, also called soldier’s heart or Da Costa’s syndrome, was described in soldiers of the American Civil War by Jacob Mendes Da Costa, an American physician. . ..” Dr. Angelica Staniloiu and Anthony Feinstein. “Post-Traumatic Stress Disorder (PTSD) in Canada.” The Canadian Encyclopedia (2017). https://www.thecanadianencyclopedia.ca/en/article/post-traumatic-stress-disorder-ptsd-in-canada/ accessed March 18, 2018.
[v]Thefreedictionary.com: “snipe hunt”: an elaborate practical joke in which the unsuspecting victim hunts a [non-existent] snipe and is typically left in the dark holding a bag and waiting for the snipe to run into it; “in the South a snipe hunt is practically a rite of passage.” But see, Joe Smith. “The Snipe Hunt: Myth and Reality.” Cool Green Science at blog.nature.org. January 14, 2014.
[vi] “’Our data show a lifelong cost of war,” said [Columbia University Mailman School of Public Health Professor Emerita Dr. Jeanne] Stellman who estimates the actual figures may be higher. “One of the hallmarks of PTSD is withdrawal and avoidance. Countless numbers of people have spent their lives suffering and don’t know how or why to seek help.”
“. . . From 1997 to 2005, mental health – service use among veterans of the Persian Gulf era has greatly increased, especially in the last five years and among younger veterans. Veterans from early service eras surprised researchers with a fivefold increase in use, especially among Vietnam vets with PTSD. The system is straining at the seams, the researchers observed. The increased demand seems to be met by fewer visits per veteran.” Carol Cruzan Morton. “PTSD: The Suffering Continues for Vets.” Harvard Medical School (news) March 21, 2008. https://hms.harvard.edu/news/ptsd-suffering-continues-vets-3-21-08 accessed April 12, 2018 (citing a then recent report on trends in VA treatment of PTSD published in the journal Health Affairs).
[vii] Matthew Wolfe. “From PTSD to Prison: why veterans become criminals.” thedailybeast.com (July 28, 2013). This article also examines the inner workings of one of the many veterans’ courts established in the U.S. and a vet-dedicated correctional environment being tested in the state of Virginia.