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January 10, 2015

Should honoring vets and PTSD call for commuting a death sentence?

The question in the title of this post is prompted by this Reuters story headlined "Vietnam veteran in Georgia pleads to be spared the death penalty." Here are excerpts:

Lawyers for a decorated Vietnam War veteran due to be executed in Georgia next week say his life should be spared because he was suffering from a combat-related mental disorder when he killed a sheriff’s deputy in 1998.

Andrew Brannan's guilt is not disputed. He shot Laurens County Deputy Sheriff Kyle Dinkheller, 22, nine times during a traffic stop, a scene caught on tape by the deputy's patrol car camera.

Defense attorneys argue Brannan, 66, should not be put to death for behavior they say is linked to post-traumatic stress disorder triggered by his combat service. On Monday, they will ask the state Board of Pardons and Paroles to commute Brannan's sentence to life in prison without parole. “Commuting his sentence would honor his very meritorious service to this country,” said Brian Kammer, one of Brannan’s lawyers. “We should not be executing those we sent into harm’s way and who were deeply wounded, physically and mentally.”...

Brannan received Army commendations and a Bronze Star for his service as an officer, Kammer said. He was on full Army disability for PTSD and had been diagnosed with bipolar disorder before killing Dinkheller, the lawyer said.

Brannan, who had no prior criminal record, was driving 98 miles per hour on a Georgia highway when Dinkheller pulled him over in January 1998, according to court records. The video recording showed Brannan stepping out of his truck, cursing and telling the deputy to shoot him....

Brannan pleaded not guilty by reason of insanity at his trial. Some experts testified that during the shooting he suffered a flashback from combat, but a court-appointed psychiatrist said Brannan was sane and may have killed the deputy because he believed the officer was being disrespectful.

Brannan's execution is scheduled for Tuesday. He would be the first person put the death in the United States this year.

I am inclined to assert that this offender's decorated service on behalf of our nation as well as his undisputed mental problems indisputably means that Brannan is not one of the "worst of the worst" killers. For that reason, I would be inclined to support this defendant's commutation request.

Do others agree?

Some older related posts:

January 10, 2015 at 05:03 PM | Permalink

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No. I've made that clear in the past. He's one of the worst of the worst because he disgraced his uniform and this great nation by becoming a criminal. Death before dishonor. I realize in our achy-breaky heart nation that these old fashioned values of duty, honor, and country mean nothing anymore but that's the way I feel. When one joins the military they take an oath--a normal civilian never takes an oath. So he should be held to a higher standard, not a weaker one.

Posted by: Daniel | Jan 10, 2015 5:25:09 PM

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

That's oath he took. How is murder supporting and defending the Constitution? How is murder bearing true faith and allegiance to the same? How is murder obeying the President of the United States? The order of officers? According to regulations?

I simply can't grasp how a person should be *rewarded* for breaking his legal oaths. An oath he took voluntarily.

Posted by: Daniel | Jan 10, 2015 5:32:07 PM

Are you suggesting then, Daniel, that we should be more willing to sentencing to death and execute veteran murderers and that past military service should be viewed as an AGGRAVATING sentencing factor? Just curious if you are merely asserting that past service is NOT a mitigator or saying more?

Posted by: Doug B. | Jan 10, 2015 5:37:47 PM

Daniel provides a lot of spleen but let's deal with the specific case.

The person claims the acts here were "linked to post-traumatic stress disorder triggered by his combat service" ... this can be a mitigating factor. The crime is not the same as some s.o.b. who just went on a thrill kill or something. That is, a VET who was a s.o.b. who just went on a thrill kill. Allegedly, it was triggered by PTD. Furthermore, he had "no prior criminal record" and the author of this piece tosses in (let's grant it for argument) "undisputed mental problems."

If a non-vet with no criminal record with undisputed mental problems and some past trauma that might have caused PTD type symptoms, many would find the person not the 'worse of the worst.' Toss in if the person did something productive for society which might in effect give him some karma points as compared to if he was some two time loser who did nothing with his life. Why exactly should him being a vet HURT him here? Especially since allegedly his service there is the cause of the PTD?

Daniel makes it out like ALL he got is that he's a vet. That's misleading. Anyway, I realize as an "abolitionist" my opinion might not be taken seriously, I do think he isn't "worse of the worst." I'll grant that even them imho shouldn't be executed but he isn't one of them.

Posted by: Joe | Jan 10, 2015 5:44:01 PM

I'm going to play lawyer here and say that while Doug B. poses an interesting question it need not be reached in this case, since he has already been sentenced to death. It's not possible to aggravate his sentence beyond death. In this case, it is sufficient to say I think the fact that he is a vet should not be a mitigating factor.

Posted by: Daniel | Jan 10, 2015 5:46:17 PM

@Joe.

"Daniel makes it out like ALL he got is that he's a vet."

Don't be an idiot. I'm saying no such thing. I'm responding to Doug B's direct question in the OP as to whether his military status should play a role. I think it should not. As for his mental illness, that's a separate question. It's a separate question because the role mental illness should play in terms of the degree of culpability for criminal offenses is a topic much larger than military veterans and even much larger than murderers.

"Defense attorneys argue Brannan, 66, should not be put to death for behavior they say is linked to post-traumatic stress disorder triggered by his combat service."

But what would happen if he's PTSD were NOT triggered by his combat service. If one says well, that's a different case then his veterans status is in fact all Brannan has. If one says that it makes no difference what his PTSD was caused by then his veterans status is irrelevant and let's not even talk about it

I only address his veterans status because other people keep talking about it. I'd love to have a general conversation about mental illness. Yet for all of Joe's posturing he knows as well as I do that if the guy wasn't a vet, it wouldn't be in the papers.

Posted by: Daniel | Jan 10, 2015 6:07:50 PM

Doug, the Supreme Court agrees with you.

See Porter v. McCollom, 558 U.S. __ , 130 S.Ct. 447 ( 2009) (“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”)

Posted by: Michael R. Levine | Jan 10, 2015 7:22:35 PM

"Brannan pleaded not guilty by reason of insanity at his trial. Some experts testified that during the shooting he suffered a flashback from combat, but a court-appointed psychiatrist said Brannan was sane and may have killed the deputy because he believed the officer was being disrespectful."

One of the most fascinating aspects of researching the Albert Dyer wrongful execution from the 30s was "expert testimony" in the form of alienists. After the trial and during the investigation by California for possible commutation these alienists often had strong opinions on guilt and that drove their opinions. That was most damaging because the only evidence was a false confession. Some thought of themselves as jurors in that sense, it seems. Of course, their opinion on guilt could not come out in actual testimony at the trial but they could say Dyer was capable of recounting the past accurately, which was saying his confession must be accurate. I've wondered if it is still the same now and see no reason why it wouldn't be. In fact, the above quote leans in that direction, which amounts to potential confirmation bias.

Posted by: George | Jan 10, 2015 8:39:06 PM

Lets set aside some things which the defendant was not: Not a jihadist or a race hater. Not out stealing or robbing or raping. Not out committing a crime. Not fleeing from a crime like Brown.
What he might have been: Crazy as a loon. Just a bit wacko. In between.
Motive: Cop set him off. Cop threatened him and he responded like he would to any gook out in the jungle in Nam. Hated cops.

Reasons for the Governor to Commute: Prior service to his nation. Wacko to one degree or another. Old fart who probably only has another 30 years to live and hate his life in prison.

A strong reason for the Governor to Commute the sentence to life: The Governor is a bit religious and has read the Sixth Commandment: Thou Shalt Not Kill. There is no exception for Y'all Can as in the People of the Great State of Georgia. The Governor wants his ticket to Heaven unimpeded.

So. If the Governor kills this guy then I am going to send the Governor a copy of this blog and all comments.

Posted by: Liberty1st | Jan 10, 2015 9:00:10 PM

He deserves the "big jab." Give it to him post-haste.

Posted by: federalist | Jan 10, 2015 9:22:15 PM

@Michael R Levine

You are misrepresenting Porter vs. McCollom. That case was about what evidence the jury should be able to hear. This case is not about that, for the jury heard all the evidence including evidence about his military service and imposed the death sentence anyway. This current case is a question of whether the Executive should overrule the court system. Surely even you can understand the difference between reviewing a case de novo and reviewing a case for abuse of discretion.

Doug asked earlier about whether I thought that military service could be an aggravating factor. I think the role of military service at sentencing /when it is in the hands of the jury/ is a difficult question. It's a difficult question because the jury has a lot on its mind during the penalty phrase of a trial. This is why I think the court in Porter got it correct--the jury should have had the opportunity to have heard that evidence.

However, I think it is a much less difficult question when one is talking about review. We should resist cherry picking one aspect of the defendant's history and blowing that out of proportion simply because it engenders sympathy. The jury did hear all the evidence and condemned him anyway. I think that deserves respect.

Posted by: Daniel | Jan 10, 2015 9:23:35 PM

Leona Hemsley deducted $8 million of work done on her private residence as a business expense. She stiffed the workers. They sued her and discovery showed she had deducted this a as a business expense. She refused all offers to settle and went to trial. She argued truthfully that she paid $400 million in income taxes, and that this vastly greater amount should mitigate her guilt. The result? 16 years. Only Dream Team member Dershowitz got that reduced to 19 months. Naturally, she had prisoners make her bed for 50 cents. She stiffed them at discharge.

I have argued that almost all mitigating factors are from the Twilight Zone and should be aggravating factors in the real world of the victim here on earth. The only one I found real, from Mr. Levine's list, was assisting the victim.

The majority of veterans with PTSD have other problems, such as addiction, include excessive caffeine intake. The overlap of the symptoms with many other condition scan mislead the unsophisticated clinician. Someone believes he is back in a rice paddy in Vietnamese restaurant most like is delirious from alcohol withdrawal. Becaseu no one forced him to drink som much alcohol related symptoms cannot be used for mitigation.

The hidden message of the left in exploiting PTSD is that he was a victim of Nixon's war or Bush's war. So the invention of this phony mitigating factor bywesu goodis politically motivated.

Recruits are screened So they have less pathology than the general population. The Supremacy knew several former warriors who experienced the most horrific assignments. They returned to civilian life quite mature, responsible, modest, quiet. They made excellent students, being very serious, and then professionals, appreciating the privileges of these. If anything they preferred to avoid conflict. I find veteran and PTSD as mitigating factors to be quite insulting and highly offensive. He couldn't control himself, the left is saying, ignoring his discipline and bravery in the face of enemy fire.

So this argument is another on the list of false mitigating factors from the lawyer Twilight one, that are really aggravating factors, along with MR, young age, abuse, insanity. This one insults our brave warriors needlessly. It should result in a rush to execution.

Posted by: Supremacy Claus | Jan 10, 2015 9:57:26 PM

Lib. God wants the murderers killed. So you may relax about your future in heaven.


See: http://www.middletownbiblechurch.org/doctrine/6command.htm

A Translation Problem


The word "kill" in Exodus 20:13 and Deuteronomy 5:17 means "murder." The proper translation is THOU SHALT NOT MURDER. It is interesting that in Matthew 19:18 the KJV correctly translates the Sixth Commandment: "Thou shalt do no murder." The Hebrew word (ratsach) and the Greek Word (phonenō) which are used in the Sixth Commandment both clearly mean "murder." The Hebrew language has a general word for killing (the verb muwth, meaning "to cause to die") and the Greek language has a general word for killing (the verb apokteinō), but these general terms for killing are not used in the Sixth Commandment. Instead very specific words are used which forbid MURDER.

Posted by: Supremacy Claus | Jan 11, 2015 2:21:26 AM

Daniel, talking about how I'm "posturing" after talking about "our achy-breaky heart nation" etc. & then adding a SECOND comment to lay it on thicker is a bit much.

The focus of the two comments can very well lead a reasonable observer to think you are focusing on his vet status, including how that should put him to a higher standard. You didn't comment on the PTD, lack of criminal history etc. You spent two comments on his military status, include fatuous comments like how is 'murder supporting and defending the Constitution' -- the wolf had harder straw than that.

I'll grant for the sake of argument your "higher test" for vets rule. Fine. It still wouldn't to me be non-rebuttable -- ALL vets wouldn't be executed. You'd have to balance the various factors. You did not. You only focused on the vet & did it twice.

I admit this was annoying. Should have just let it be, apparently. There I go being an idiot again. :)

Posted by: Joe | Jan 11, 2015 12:18:40 PM

ETA: The "direct question": "Should honoring vets and PTSD call for commuting a death sentence?"

Unless PTSD suffering vets NEVER should get their death sentences commuted in part factoring in those two details, I think the first two comments problematic for reasons cited.

Posted by: Joe | Jan 11, 2015 12:22:36 PM

"Should honoring vets and PTSD call for commuting a death sentence?"

Not killing the vet would disgrace our warriors and those suffering from PTSD, implying these are involuntary weaknesses that cause murder. That idea is ridiculous and offensive to the bravery and to the sacrifice of our military.

Vets have lower unemployment. They have half the incarceration rate of the male population, and that fraction is dropping. I indicated that PTSD should be differentiated from drug use symptoms. More veterans in prison had fewer prior offenses, but more intoxication problems, as the murderer above does. Being a veteran is a higher functioning state, superior to being a non-vet.

Should a serial killer be spared the death penalty because of superior function, high intelligence, attendance at a law school, good looks, and the unique ability to persuade young women to get into his car, within minutes of meeting them.

Please, do not tell me superior abilities should be made mitigating factors in sentencing. Well that is the same as using being a veteran to mitigate. If a veteran has a mental illness, his disability pay is $60,000 tax free. He has access to excellent treatment, without the restrictions of HMO's. He is also more likely to have done it to himself, by feeding an addiction. I have argued that mental illness makes a murderer more dangerous than a Mafia contract killer. And for safety, the mentally ill need to be executed summarily. Again, Joe. You have a choice of cellmates. Mob assassin, or Cho, still being tormented by the ducks in the VTech pond, now in cahoots with the students. If you would not choose to inflict yourself with the risks of a paranoid schizophrenic, why is it OK to inflict those risks on others? This guy:

https://www.youtube.com/watch?v=KElyLrrTLB0

Should he be kept alive? The announcer says, he never says who is tormenting him. It is learned later, it is the ducks in the pond conspiring the students.

Posted by: Supremacy Claus | Jan 11, 2015 1:33:31 PM

People who get PTSD in the military are injured serving us. We sent them there. Regardless of whether they were injured in Bush's Surge or Obama's, we are responsible. Just like we are more responsible for limb lost to combat, we are more responsible for an injured brain. That's not sticking it to Bush (or Obama). That's just taking responsibility for our collective decision to go to war. And we owe the same debt for smart uses of the military as we do for stupid ones (I'm not taking a position on any given war).

Porter v. McCollum was a unanimous, per curiam, reversal of the denial of a habeas corpus writ. Any SCOTUS reversal of a death sentence is extraordinary. Any reversal of a death sentence in habeas is even more extraordinary. For it to be per curiam even more so. And for it to be unanimous means Scalia, Thomas, and even Alito (Alito!) agreed.

Procedurally, Daniel's correct that the information did not go before the jury in Porter. But going before the jury does not mean that it went before the jury in any meaningful way. And jury instructions could have seriously diminished the value of it.

In any sentencing case involving a veteran, the jury should be instructed with language directly from Porter. "In making your decision, you should follow our nation's 'long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as [name of defendant] did.'"

"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" pretty much ends the legal argument about whether combat service is a mitigating factor--unless you are to the right of Scalia, Thomas, and Alito. Scalia and Thomas sometimes pleasantly surprise us liberals, but getting to the right of Alito is hard. Does anyone really think Alito was trying to stick it to Bush he joined Porter v. McCollum?

Finally, it's unfortunate that there's a "but" joining the following two phrases because the two ideas are not compatible with each other: "Some experts testified that during the shooting he suffered a flashback from combat, but a court-appointed psychiatrist said Brannan was sane and may have killed the deputy because he believed the officer was being disrespectful." Legal insanity is an almost impossible standard to meet, so a person can be legally "not insane" and acting under a PTSD flash back triggered by certain (perfectly legitimate) police behavior.

Posted by: Stephen Hardwick | Jan 12, 2015 9:22:33 AM

Stephen,

1) I have argued that there is no difference between Justices of different parties or different ideologies, Rent seeking trumps all ideology. Plus, their legal educations made them into lawyer dumbasses. That is not an epithet, but a term of art. It refers to an the effect on an intelligent, modern student coming out of 1L believing in supernatural doctrines, and accepting 13th Century false beliefs that are ridiculous, and unlawful in our secular nation. And if Jewish, not having any problem with wording from the Catechism. Imagine the uproar if anyone proposed wording from the Sharia, which 90% pretty good.

2) I have met people with PTSD. It makes you anxious, reticent. Not aggressive. If someone believes himself to be in another location, and in combat, and acts accordingly, that is a change in consciousness. It is better explained by direct effect of substances, especially alcohol, or withdrawal from substances, or brain damage from substances. It does not serve veterans to treat PTSD without getting them off these substances first, including caffeine, seeing what PTSD symptoms remain, then treating these with exposure with response prevention prevention, the official policy of the Veteran's Administration. Do you think that Alito even realizes he is bashing Bush by all this PTSD talk. He is oblivious. He just accepts the assumptions in the air he breathes in that gay Sodom and Gomorrah. He is like a child trying to look pious and to please others.

You may rummage around this excellent site for more information.

http://www.ptsd.va.gov/professional/continuing_ed/sud.asp

3) Even if you are Attila the Hun, and you live in Washington DC area, you become like them, left wing, superior, and understanding of the rent seeking. So a vote by Alito has no more credibility than one by Ginsberg or Kagan. It is human nature to imitate and fit in where one lives. Move to Iran as a devout Jew, within a month, you are acting and thinking Iranian. So the Court must be moved to Wichita, Kansas, the middle of the nation geographically and culturally.

4) Say a human life is worth $4 million to make the arithmetic easier. Leona Helmsley with her $400 million payment in taxes gave the government 100 lives, not just one as a veteran might. Does the government owe her mitigation when she evades $4 million by falsely deducting $8 million in renovation on her home? The verdict was guilty, the sentence, 16 years, as anyone else might get. Only legal trickster Dershowitz was able to reduce it to 19 months, on procedural grounds, not on substance. Even then, she still did time that was ordinary for her infraction, and not privileged.

Posted by: Supremacy Claus | Jan 12, 2015 10:48:20 AM

The vast majority of of us never served in the armed forces. We rationlize away our not having done so. I say all honor to those who have the courage to serve and put their lives on the line for me and my family and our country. When it comes to being prosecuted and sentenced by the government they served, they deserve a break, however small. See Porter v. McCollom, 130 S.Ct. 447 ( 2009) (“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”); U.S. v. Pipich, 688 F. Supp. 191 (D.Md. 1988) (where defendant convicted of mail theft, his military record warrants departure to probation. Defendant was in Marines from 1968 to and served in combat in Vietnam for one year He received over 45 awards of the Air Medal, including one special award for heroism in connection with the extraction of a reconnaissance team that was surrounded by North Vietnamese forces. The defendant was awarded the Purple Heart twice. He was also the recipient of several Vietnamese awards).

Posted by: Michael R. Levine | Jan 12, 2015 12:34:31 PM

When a solider returns from combat service abroad we are letting a killer loose in our midst. And far from these killer instincts being cabined by the lawful structures of a civilized society, far from the solider understanding that he needs to obey the laws he fought to defend, Michael and others would put such people on notice that they need not fear civilized laws that inhibit others because they will catch a break.

Morally, that is nonsense. It's also fundamentally violates the notion of equality under the law. It is an odd sort of law that applies with lesser force to the very people who are sworn to uphold it yet applies with greater force to those that who have not sworn to uphold it. There is something distinctly strange about people who would give slack to veterans but would not do the same for a cop killing a black boy.

Posted by: Daniel | Jan 12, 2015 5:07:47 PM

Daniel, you write, "When a solider returns from combat service abroad we are letting a killer loose in our midst." A trifle over the top, wouldn't you say? All Michael Levine said was give veterans "a break, however small." Sounds quite reasonable to me.

Posted by: anon14 | Jan 12, 2015 6:18:47 PM

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