Not All Veterans are Equal

Each year, on November 11, we proudly celebrate “Veteran’s Day,” honoring those who served our country and were willing to sacrifice their lives to protect our freedom and liberty.  Our veterans deserve this honor and as a society, their selfless service is not so easily forgotten – or at least until they dare to cross that line and become a convicted felon, and when our heroes fall from grace we quickly abandon them.

As an honorable discharged “disabled veteran” myself, I know only too well how quickly our society will abandon those who served.  I am not a hero, and I never served in any war.  For the brief period of time that I served, I was merely an average soldier doing his job.  But in the many years that I’ve now been on Florida’s Death Row, I have met a number of genuine heroes, men who did fight in combat and were once honored with both physical scars and medals.  Until that moment they become convicted felons, they were true American heroes, and worthy of our respect.

Funny how quickly we as a society will turn our backs on those who fought and were willing to die for us.  It’s something we should all be ashamed of.  These men may have committed crimes and for that they will be punished through our legal system.  Nobody can dispute that there must be accountability, but rather the real question is what measure of mitigation should attach when one of our military veterans crosses that line and commits a crime?

Only too often these veterans who become convicted felons are themselves a victim of the horrors of war and yet nobody seems to care.  A few years ago the United States Supreme Court had to intervene to stop the execution of Korean War Veteran George Porter. (Please see, Porter v McCollum, 130 s.ot. 447 (2009). His case is indicative of just how little respect these fallen heroes get once our society turns their back on them.

The facts are beyond dispute and graphically described by the Supreme Court.  When George Porter was only 17 years old he lied to a military recruiter about his age so that he could enlist in the Army.  At the time, the Korean War was being fought and George knew that he would be sent to fight on the front lines.

Many brutal, but now forgotten, battles were fought and too many American soldiers died on that Korean Peninsula.  By law, not even a man yet, George was assigned to the Eighth Army as it drove north of the 34th parallel under General Mc Couther.  It was a bloody war made even more miserable by the cold winter.

George sustained his first injury when he was shot in battle and was medevac’d to the field hospital.  For that, he was later awarded a Purple Heart.  Most other soldiers would have used that injury as a ticket back home, but not George – he came to Korea to fight for a country that he proudly believed in, and going home wasn’t on his agenda until that fight was over.  George insisted that despite his injury he be allowed to return to his brothers in arms and was transferred back up to the front lines.

Anybody familiar with the history of the Korean War knows that being part of the Eight Army during its drive north of the 34th parallel during those dark days of that war was no place to be.  It was during that campaign that China decided they didn’t want American troops pushing north near their border and in a sneak attack comparable to Japan’s bombing of Pearl Harbor, China ordered its massive army south into Korea.  The Eighth Army never had a chance.

At that point, it was no longer a war – it was a slaughter.  The Army made the decision to retreat – leaving many American soldiers already overcome by the Chinese there to die.  George was part of the company left behind and one of the very few who lived to tell about it.  But George never really talked about it.  Sometimes the only way to cope with the past is to try to put it out of your mind.

George received another Purple Heart for the substantial injuries he suffered in that battle, and this time he was sent back home.  But the physical injuries of combat only too often become relatively insignificant when compared to the mental damage done.  Commonly known now as “Post Traumatic Stress Disorder” (PTSD), many soldiers who have fought in combat suffer psychological trauma that impairs their ability to adjust back into what most would call a “normal” life.

George came home a genuine decorated American hero, but he never got a hero’s welcome, and he never asked for one.  His civilian life over the next thirty years was relatively unremarkable, except for his inability to escape from the never-ending nightmares of the horrors of that forgotten war.  Through these years George tried to drown these dark memories in alcohol, and perhaps succeeded for the most part.

But then came that day when George found himself caught up in a love triangle and by his account, while intoxicated, confronted his girlfriend about the tryst and one thing led to another, with the confrontation spontaneously escalating into the woman being shot to death.  George later pled guilty to murder and threw himself on the mercy of the court.

But our courts don’t often show mercy, as judges can’t win local elections by being “soft” on crime.  George woke up sober in Florida’s Death Row.  As the too many years passed, his lawyers attempted to get the courts to recognize that George’s combat-induced “Post Traumatic Stress Disorder” should mitigate his sentence, but both the state courts and then the federal courts summarily denied his arguments, finding that his military service and the fact he was a decorated war hero was irrelevant, and would not have made any difference in deciding whether he should be put to death.

It has been said that the Supreme Court is the “court of the last resort,” and for good reason, as once a condemned man has exhausted all of his state and federal appeals before the lower courts, only if the Supreme Court steps in will the inevitable execution be stopped.  But it is very rare for the Supreme Court to do so, and filing an appeal before that Court is the last act of a desperate man.  George’s lawyers filed their appeal, knowing only too well that the odds of the court granting review would be extremely long.

Given the tragic history of George’s life, nobody would have called him “lucky,” but against all odds, the Supreme Court did accept George’s case for review, and in a subsequent scathing opinion, a unanimous Supreme Court strongly admonished the lower State and Federal courts for “reducing to irrelevancy” George’s well-documented and indisputable military history.  Even the most conservative, pro-death penalty justices (Scalia and Thomas) joined in the unanimous decision vacating George’s death sentence.

It still took a few more years before the State of Florida announced that it would not attempt to have the death sentence against George Porter reinstated, and George is now serving “life” in a Florida prison.  Now almost 80 years old, it is very likely that George will die in prison even though he has been eligible for parole many years now.  But the State of Florida remains embarrassed by the Supreme Court’s condemnation of their actions and has aggressively opposed any consideration for parole.

Not all escape from their fate as George did.  Many years ago, when I was relatively new to Death Row, I came to know a man by name of David Futchess, as he lived on the same tier as me.  He wasn’t that popular on the row.  Not too many wanted to live around Dave as he had a habit of waking up in the middle of the night screaming in terror of the ghosts that always haunted him.  Sometimes the guards would have to intervene when Dave would crawl up under his bunk and blockade himself with a steel footlocker, yelling for everyone else to get down.

David Futchess was a broken man with a long history of psychological problems that he brought back with him from his tour of duty in Vietnam.  Like too many others, the horrors of war took its toll on him and he never really came home.  Before he “snapped” and was convicted of capital murder, his neighbors in Gainesville told how after returning from Vietnam, Dave was a changed man.  Often he would be found in a “foxhole” he dug in his yard.  For Dave, the Vietnam War never ended.

A few years after I came to the row the State of Florida put David Futchess to death.  His lawyers valiantly tried to convince the courts that they must take into consideration Dave’s clearly documented mental history (PTSD) that he suffered after serving in combat in the Vietnam War, but the courts didn’t want to hear it.

What must be understood is that the death penalty is supposed to be imposed only upon the “worst of the worst” and by law both the sentencing jury and court must evaluate evidence of “aggravation” (factors that make that particular murder worse than others) and “mitigators” (factors that would support and argument why a sentence less than death should be imposed.)

Only if the jury and the court (in Florida, the jury hears the evidence relevant to sentencing and makes a “recommendation” of either life or death, but the judge subsequently makes the actual decision) find that the “aggravators” substantially outweigh any mitigation can a sentence of death be imposed.

Most people are familiar with criminal cases in which the convicted defendant argues for a lenient sentence because of childhood abuse, or substance dependency (drug or alcohol addiction), or other factors that would arguably render that person less culpable, or less deserving of death.

For example, if someone had a history of drug addiction and decides to rob a liquor store to get money for more drugs and in the course of the robbery blew the store manager’s brains out for no apparent reason but that he didn’t get the money quick enough, upon conviction his lawyers would argue that he cannot be sentenced to death because he had a really lousy childhood that resulted in drug abuse and since he was stoned when he committed the murder, he was under substantial psychological duress.  Under applicable law, the Court is required to recognize those factors as “mitigating” and that defendant might get a reduced sentence.

But not a single state in America that still has the death penalty has any statutorily defined “mitigating” criteria for an argument for a reduced sentence (life instead of death) if the convicted man (or woman) served in the military and because of that military service suffered either a physical or psychological injury that contributed to the commission of the alleged crime.

A hero is only a hero as long as our society recognizes them.  Those veterans who fall from grace are only too quickly forgotten and apparently very few people out there even care.  In all the years that I’ve been in prison now, I have never, not even once, seen any mainstream media outlet (i.e., newspaper, television, etc.) do a story about these fallen heroes, and prisons are full of them.

When it comes down to it, if a cold-blooded killer has had a tragic childhood and voluntarily consumed drugs there’s a really good chance that he (or she) will be spared the death penalty.  But someone who proudly served his (or her) country, often in a time of war, and suffered a physical or psychological disability that might have contributed to the commission of the crime gets no recognition.

Through the years, a number of combat veterans have been put to death here in Florida.  In addition to David Futchess, Florida has also executed at least two other Vietnam Veterans: Larry Joe Johnson and Dennis Arthur Rutherford.  Even assuming for the sake of this argument they were guilty of the alleged crime, in each of these cases the courts refused to recognize their honorable service to their country during a time of war as a mitigating factor that might have spared their life.

But this long history of callously turning our backs on military veterans who have fallen from grace by being convicted of a crime goes far beyond the relatively few military veterans who now populate death rows across the country.

The truth is that prisons across the country currently hold tens of thousands of military veterans, who society has turned their back on.  These men and women proudly and honorably volunteered to fight and die to protect the liberty and freedoms most take for granted and only too often the trauma they suffered during their service to our country left them broken.  But nobody cares about them.

As I said, I am myself a legally recognized “disabled military veteran” – but I am not a war hero and I personally ask for no recognition.  But because of my unique status as a “disabled veteran” I know only too well that these genuine heroes go through once they are thrown into prisons and so quickly abandoned and forgotten.

To illustrate how military veterans are treated once they enter our prison system I can only use my own well-documented history, which is indicative of the indifference our society has towards incarcerated veterans.

Many moons ago in a life now far, far away, I met a girl in high school and we patiently waited until we were “of age” (18) and then got married at the Polk County Courthouse in Florida.  Like most young couples, we struggled financially and so we decided that I would do as my two older brothers already did, and join the army.  The pay wouldn’t be great, but we had dreams and the military had medical care for my then pregnant wife and a chance to earn benefits that would allow me to go to college.  I signed up and was shipped off to “boot camp” at Fort Sill, Oklahoma.

My military service was remarkably uneventful.  I was just another soldier and nothing more.  At that time, the Vietnam War was already over and the country was at peace. It was just a job, if you can call operating the computer guidance system for a battery of 185 Howitzers just a job.

In November 1978, while on routine duty, I was knocked backward down a flight of concrete stairs and pretty much woke up at the base hospital.  The accident caused substantial injury to my lower back and I spent a while in the hospital before being discharged.  After about a month of physical therapy the powers that be decided I was no longer fit for military duty and threw me out with a plane ticket back home.

Because of this injury, I was not able to work.  Often I couldn’t even get out of bed. Since I was discharged from duty, I no longer had access to medical care and was told I would have to apply for a disability benefits separately, but it would take a while, possibly even years.  My only available form of pain relief was to “self-medicate” with alcohol and drugs, which led to its own problems.  By 21 I was divorced and by 22 I was on my way to Florida’s Death Row.  (Please see, www.southerninjustice.com)

In the free world, the military “Veteran’s Administration” provides one of the most comprehensive health care systems in America, and for the most part provides above average care for veterans, especially for those who have suffered a physical or psychological injury while serving their country.

But under applicable Federal Law, once a veteran is sentenced to a state prison, he or she is no longer eligible for the Federally funded Veteran’s health care, and so incarcerated veterans receive the same basic (minimal) health care available to all other prisoners.

The state prison system is “constitutionally” required to provide adequate health care to all prisoners.  But just what is “adequate” is subject to liberal interpretation especially in recent years where all state prison budgets are cut to the bone and funding for medical care is cut further and further each fiscal year.

Whether one receives adequate medical treatment for a legitimate medical problem in our prison system often comes down to whether that particular prison doctor chooses to recognize the medical condition.  These “administrators” are often provided substantial personal incentive not to recognize legitimate medical conditions in the form of generous “bonuses” they receive based upon the percentage of money they save.  Quite simply, by refusing to recognize the medical condition, they are relieved of any legal obligation to provide treatment.

For well over twenty years, the prison system recognized my physical disability and provided treatment.  But then the budget cuts started coming and each year the prison medical budget was substantially less.  Attempts to receive even the basic treatment became a battle that had to be fought again and again.

To compound this problem I’m not getting any younger and as I age, my physical disability becomes progressively worse.  But if the prison medical staff actually recognizes the progressive nature of my physical disability then they would be legally obligated to treat it, which could cost substantially more money.

There are many Federal Laws that supposedly serve to protect disabled persons, such as the Americans with Disabilities Act (ADA) and even the Military Veteran’s Administration, which has statutory power to intervene if a disabled veteran is not receiving adequate treatment.

But all these legal protections are dependent upon these agencies actually willing to intervene and they are not.  As my physical disability progressively becomes worse, it has substantially impeded my ability to go to outdoor recreation, especially even though legally recognized as physically disabled, I am physically restrained (handcuffed) behind the back anytime I leave my death row cell, making it all but impossible to go up or down stairs that lead to the death row recreation yard.

For several years I was not able to go to the recreation yard as I simply could not go up and down the stairs and the prison took the position that my long recognized disability had somehow miraculously healed itself so a medical pass that would have allowed me to be “front-cuffed” so I could go up or down the stairs was no longer necessary.

They say you can’t fight city hall, but fighting against a prison bureaucracy is by far a bigger battle.  In recent years I have written countless letters to various organizations that claim to provide advocacy for military veterans, and each one without exception responded in the same manner – they do not and will not involve themselves with veterans who are incarcerated in state prisons.  Just as many letters were sent to many lawyers all but begging for help as if I had a lawyer willing to take the indifference to my physical disability to court, I could compel prison officials to provide adequate treatment and access to the recreation yard.  But not even one lawyer was willing to assist.

Even more troubling is that although there are countless organizations that provide services and assistance to Military Veterans in the free world, there is not even one organization willing to assist incarcerated veterans who are being denied necessary medical treatment relating to a service connected physical disability or psychiatric condition.  It has been my documented experience that even state agencies that are responsible for ensuring disabled military veterans receive adequate care simply will not intervene on behalf of incarcerated veterans.

But I again want to emphasize that this is not about me.  Rather, my case only illustrates how as a society we do deliberately turn our backs on the military veterans who fall from grace.  Whether it’s the indisputable refusal to recognize a war hero’s service to his country as legitimate “mitigation” when deciding whether he (or she) should be sentenced to death, or the way our society turns its back on disabled veterans who are incarcerated, this says a lot about who we are as a society, and I would like to think we are better than that.

In today’s world, more military veterans than even before are coming home from war with substantial trauma, and some of those heroes will find themselves in a situation that leads to a criminal conviction and incarceration.  As we recognize Veteran’s Day perhaps we should take a moment to also remember the many now abandoned and forgotten military veterans who are imprisoned, and ask ourselves whether these fallen heroes deserve something better than to be forgotten by a society that they were only too willing to fight and die to protect.  If they were willing to give their life for us, don’t we owe them something more than simply turning our backs on them when they need us the most?

-The End-

Michael Lambrix was executed by the State of Florida on October 5, 2017