Transcript
Speaker 1
Hello, and welcome to 1201, The Death Penalty in Context. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. Our guests today are Art Cody, Dr. Steven Xenakis, and DPI Staff Attorney, Leah Romer. Captain Art Cody is a retired US Navy officer who served for 30 years, completing multiple tours of duty. He now serves as the Director of Criminal Programs at the Center for Veteran Criminal Advocacy, where he supports veterans involved in the criminal justice system. Dr. Steven Xenakis is a retired U.S. Army Brigadier General and a psychiatrist who works with adults, children, and adolescents. He has dedicated his career to improving mental health care for veterans and advocating for reform within the military and justice systems. Ms. Romer is the lead author of DPI’s new report, Lasting Wounds. which explores how the legal system treats veterans sentenced to death and gives voice to their stories of military service, trauma, and treatment. In researching this report, DPI has produced the first comprehensive list of veterans sentenced to death in the modern era of the death penalty. Thank you all for joining us.
Speaker 2
Thanks. Good to be here.
Speaker 3
Thank you.
Speaker 1
I’d like to start with some background on the work that you do. Art, could you tell us about the mission of the Center for Veteran Criminal Advocacy and how you help accomplish that mission?
Speaker 3
Sure. The Center for Veteran Criminal Advocacy really has a two-fold mission. The first is to provide direct assistance to military veterans and their counsel who are in the criminal justice system. Often, that includes obtaining and reviewing the client’s records. talking to the veteran, interviewing people that the veteran served with, and preparing reports that explain the veteran’s service and experience to a prosecutor, judge, or a jury. Secondarily, the Center seeks to educate the legal community and understanding the military experience and best practices in representing veterans.
Speaker 1
Thank you. Stephen, could you tell us about why you decided to focus on veterans experiencing PTSD and trauma in your work?
Speaker 2
Well, I’m a career Army soldier, psychiatrist, physician. And this has been from is part of the experience that we all have as military service members. I come from a family that my father was a career Air Force officer. So it was just natural for me to continue in this area of clinical work. And I find that it’s important in terms of being able to help all of our young men and women and our career soldiers, airmen, Marines who serve, sailors who serve, and that is, of course, their service has got a lifetime impact. So I have seen this play out over the years as a son of an Air Force officer, and I’ve seen it across my career myself as a soldier.
Speaker 1
Leah, you’ve spent the last year researching veterans in the death penalty system. Could you summarize some of the key findings in DPI’s forthcoming report, Forgotten Service, Lasting Wounds?
Speaker 4
Of course. So one of our goals was to build a database of veterans sentenced to death, which had never been done before. And we ended up identifying over 800 veterans who have been sentenced to death in the modern era, which spans about the past 50 years. And that includes 226 veterans who were executed. And they make up 14% of all executions in the modern era. So that is absolutely one of our key findings, because it shows, in other words, one in seven people executed once served our country in the military. We also found about 200 veterans who remain on death row today. That’s 10% of all people on death row. And these numbers are particularly striking because only about 6% of the public today are military veterans, suggesting that veterans are overrepresented in the death penalty system. Now, of course, the majority of military veterans do not commit crimes, much less capital crimes, but there is a troubling battlefield-to-prison pipeline. Previous research had established that about one-third of military veterans are arrested following their service, compared to fewer than one-fifth of civilians. And in our report, we identified many veterans sent to death row who had once served in combat, experienced injuries, or been diagnosed with PTSD, which are all factors that increase the likelihood of criminal system involvement among veterans. Previous research also established that veterans struggling with addiction are roughly three times more likely to be arrested than other veterans. And in our work, we found that over 40% of the veterans on death row had struggled with addiction, which is four times the amount among civilians or members of the military in general. We also had a couple key findings related to new research developments since our previous report, Battle Scars, which came out in 2015. And these investigations have found that certain weapons, tools, substances, or practices soldiers may encounter, such as long-range guns, grenades, jet fuel, acceleration in Top Gun jets, rigorous training schedules that require sleep deprivation. There have been some really fascinating reports, some great investigative journalism in the past 10 years showing that all of these may cause cognitive changes that increase the risk of impulsive violent behavior, even when a military veteran did not serve in combat. Our report discusses these findings and puts them in the context of capital crimes. And if you’ll bear with me, I’ll just share one last key finding, which is that one state stands out for its harsh treatment of veterans, and that is Florida. Florida has sentenced more veterans to death than any other state with 117, and this year has already executed five veterans and plans to execute two more, which will break the record for the number of veterans executed by a single state in a single year. And as death sentences have decreased around the country, death sentences of veterans have also decreased elsewhere. So in the past five years, no state has sentenced more than one veteran to death, except Florida, which has sentenced five. And this has generated sharp criticism for veterans advocacy groups, which we discuss in the report.
Speaker 1
Thank you, Leah. Art and Stephen, were there any of the findings of the report that you found particularly striking or surprising?
Speaker 3
I think one of the things that Leah touched on struck me, and that’s the overrepresentation of veterans, both among the executed and on death row. It was logical to me, and I expected that the vet population would be greater than the 5% to 6% of the overall population. And I based that, given on their experience and what they’ve been through and the mental health issues that go along with that, I thought it would be greater. But for it to be nearly three times that number, 14% of the executed, that did surprise me. Similarly, the vet population on the row, roughly 10%, also a large overrepresentation compared to the five or 6% of the overall population that are veterans. And to me, that validated the belief that I long held that veterans, particularly combat veterans, are a distinct population among death sentenced inmates and that they should be or distinct population among people who come in contact with the criminal justice system. And I think because of this gross over-representation, they should be treated differently. Statistically, they are a different population. And I think it’s not mere coincidence that veterans make up a large part of death row. It’s more that their experience. And the mental health issues that accompany that experience make them a different population that is deserving of, in my mind, a categorical exclusion akin to some of the other Supreme Court decisions that grant categorical exclusion, such as Roper v. Simmons and Atkins. And I think part of this, part of the reason you see so many people, so many veterans on death row, is a great deal of their experience is not understood by the general public, and truly it’s a foreign language with a foreign experience.
Speaker 1
Thank you for that. Stephen, did you have anything you’d like to add?
Speaker 2
Well, I’d like to salute you all for an excellent report. I think the data is compelling, and I think you have been able to compile it better than any place else I’ve seen it. I can fully endorse what Captain Cody has said here, and I think his observations are right and spot on, and that it really does spotlight for us what it means and the impact of these men and women who have had combat experience and how it has affected and changed their lives and how it contributes to the particular circumstances they find themselves in and most unfortunately that they are now on death row and face these executions. So I think the data it goes back actually You know, we have data in this country from the Civil War to show that is consistent with what you all have put in in this report. But, you know, even when you read historical accounts going back to ancient times, you know that these kinds of circumstances occur and that these people’s lives are deeply affected. So I, again, I think you all have done a tremendous job here. I think it’s really important. And I think that we should hopefully acknowledge what the impact is and that maybe, as Captain Cody has said, we can move forward and that we can get cases where, particularly at the Supreme Court, that they’re recognized that this is a special population and we need to take into account what the experiences of these people have been and how it’s affected their lives.
Speaker 1
Members of the military experience high intensity life or death situations for months or even years. Art, could you talk about how challenges with the transition back to civilian life can lead to some vets to come in contact with the criminal system?
Speaker 3
Sure. I think that’s a really good question. I think Dr. Naxis can probably speak to this symptomology a little better than me, but what I can tell you, it is often very difficult for veterans to transition back to civilian life, back to reintegration. And I think a large part of that is when they attempt to re-enter civilian life, they are still dealing with the memories and the trauma that don’t go away easily. Post-traumatic stress disorder is something, it’s not something that can be cured. It’s certainly, one can manage the systems, but it’s not something that’s easily leaves a veteran. They have seen and experienced things that leave an indelible mark upon them. And I think one of the things we have to realize is that many veterans, once they leave the service, are attempting to reintegrate among people, their families, their friends, et cetera, who have no idea what they have been through. And this is particularly true in the case of National Guardsmen and reservists who are perhaps leaving the military, going back into their civilian communities. are now completely disconnected from the support centers that were at one time available to them. So once they’re out of the military, they don’t have the same level of support. And that’s an important consideration. The other thing I think that we can couple with the mental health issues is the military culture. Commonly, the military teaches its soldiers, its airmen, its Marines, sailors, to react to decisively and swiftly, and commonly what we refer to as kinetically, that is to take physical action. We don’t teach in bootcamp peaceful conflict resolution. We don’t teach peaceful conflict resolution, and therefore it is not uncommon for our vets to react in a somewhat aggressive manner, particularly if they’re fresh off a combat tour and are suffering from post-traumatic stress issues.
Speaker 2
Yeah, let me add to that, a couple things. One, as you noted in your report, most veterans do not find themselves committing such offenses. But if you talk to almost all veterans, people who’ve served in the military, they’ll say that their military service has changed them and changed them forever. And sometimes that’s a very good thing, they’re able to have experiences and to grow in ways that they would not have otherwise grown. But they’re changed. And it’s clear that they’re changed. And for all the reasons that… Captain Cody, others have talked about they get skills, they learn to focus, they act decisively, yet they know that the experiences they’ve had will live with them. They’ll live in their memories. In some ways, there’s a group that will haunt them throughout the rest of their lives. And I like to think about this with consideration, a reference to a quote from General George Marshall, you know, obviously a most highly respected soldier in 1942, he says, Once an army is involved in war, there is a beast in every fighting man, which begins tugging at its chains. And a good officer must early on know how to keep the beast under control. It’s a good soldier. Know how to keep the beast under his control. So these people are changed. Now, there is a group of people, for any number of reasons, particularly if they’ve come from backgrounds that have been stressful, they’ve had some trauma, that it will unfortunately lead them to actions, activities that will will result in the kinds of circumstances that they find themselves in. I think when you ask the question, what do we do when we these soldiers transition is put some more time and effort into the kinds of programs that enable them to transition better back to society, because there are any number of people that find themselves lost. I mean, not only do we have veterans in a high incidence of offenses, we have a high incidence of veterans who are homeless. They don’t know how to relate to family. They don’t know how to really be good citizens in their communities. They don’t know how they take their experiences and find work and education. Many do, and many become very, very successful. But there is that group that doesn’t. And I believe that we can make much a greater effort and a more focused effort on helping them transition.
Speaker 1
Stephen, could you speak a little bit to the medical perspective of how military trauma, especially conditions like PTSD, traumatic brain injury, et cetera, affect brain function and how that can lead to behavioral changes that eventually lead to criminal liability?
Speaker 2
Well, that’s really important. I mean, first of all, for most of the people that come into the service, either Army, Air Force, Navy, Coast Guard, or young people, 18, 19, 20 years old. And what we’re learning in as we do more research and understand the brain is their brains are still very active in the development phase. I mean, you take males, their brain doesn’t, quote, myelinate, that is, doesn’t really mature to a particular phase until they’re 25, females a little bit younger. We understood that. I mean, that ended up to being important when some of the cases were argued to the Supreme Court regarding adolescence and the death penalty. But we need to understand that about our young people that come into military service. What that means is that the experiences that they have and the exposure to the trauma can permanently affect their brains in many, many different ways. And in terms of their sensitivity to stress, in terms of how they react, how they get alerted, in terms of fight/flight that we talk about, and in terms of being able to exercise judgment. So all these are factors when we look at these individuals and the functioning, the neurophysiologic functioning of their brains. There’s a lot of work to be done. We need to study that a whole lot more, but then we need to also take those findings and bring them to the courts and let the courts understand these are brains and individuals that have been changed by their military experience in a particular window in their lives. And that that window, that period of vulnerability and those experiences really have shaped them in all sorts of different ways.
Speaker 1
Leah, I’d like to move to the chapter of the report that covers veterans and the law. We have some pretty clear guidance from the U.S. Supreme Court in at least one case, Porter. How have lower courts recognized military service, and what is its role in capital cases?
Speaker 4
So I’ll start with the role in capital cases. In the penalty phase of a capital trial, the defense presents mitigating evidence, which is any evidence to convince the jury to spare the defendant’s life. And this can include evidence that the defendant suffered serious trauma that contributed to their offense. or that the defendant made positive contributions to society. And military service is obviously relevant for both of those reasons and more. And it can also inform the guilt phase of trial by showing that the defendant had diminished capacity or other factors that would prevent a conviction of first-degree murder. Our country recognizes and honors service members’ sacrifices in many other contexts, so I think few would disagree that it should be considered when their life is at stake. Now, in Porter, the Supreme Court recognized how crucial military service is to understanding a defendant’s story in a capital trial. I’ll just share a few quick details of who George Porter was. He, the man at the heart of the case, he had served in some of the bloodiest battles of the Korean War, and he was shot in the leg and continued fighting in hand-to-hand combat. And when he got home to the United States, he went through what many veterans go through, which is his whole life was upended. He experienced blackouts. He couldn’t sleep. There’s a detail in the records that he would climb his bedroom walls with knives at night. But the jury heard almost nothing about this, nothing about either his bravery in the war or the traumatic experiences he suffered and his behavior after. So, the Supreme Court said that if the jury had heard this information, they may have spared Mr. Porter’s life. And based on that ruling and also the American Bar Association’s best practices, defense attorneys are required to fully investigate a client’s military background. And that means requesting military records, talking to experts and witnesses who can explain what the client experienced in the armed forces and how it might mitigate their capital crime. However, after they’ve investigated, defense attorneys have wide leeway to choose what information to present to the jury. And unfortunately, that means that in many cases we reviewed, the jury still didn’t meaningfully learn about the defendant’s service. So for example, Clark Elmore, he in Vietnam as a soldier, his job was to repair Agent Orange pumps. And Agent Orange is a powerful chemical toxin that can change the way your brain functions. So experts found that Mr. Elmore had suffered serious brain damage and his impulse control was impaired. But his attorney, who had never tried a capital case, decided not to present that information, even though he was aware of it. And lower courts ruled against Mr. Elmore, and the Supreme Court denied relief in 2016. He was in Washington state, so he is no longer on death row, based on that state abolishing the death penalty. But when he was challenging his death sentence, lower courts ruled against him, and the Supreme Court also denied relief. And that led Justices Sotomayor and Ginsburg to dissent, saying, essentially, What about Porter? Don’t we need to ensure that juries hear this information? There’s another great quote we highlight in the report from federal judge Donald Middlebrooks, who says that the promise of Porter has essentially been expressed more often in words than in deeds. And we saw that in our research on this report. Some lower courts have recognized that military service should have been presented to the jury, while others have given it little to no mitigating weight.
Speaker 1
Thanks for that summary, Leah. Art, in your experience, how should a military veterans service be presented by defense teams in capital cases? And why don’t we see this happening in every case? In particular, how can the findings in this report support the efforts of veterans defense teams?
Speaker 3
I think one of the most important things when you have a veteran on trial in a capital case is that it is absolutely essential that you have someone on the team that is familiar with the veteran’s military experience to assist that team, you really do need a military expert. And one of the reasons for that is military service for most people in the United States is very foreign. I think as has been mentioned, only five to 6% of US population has served in the military, but for that five or 6%, that military experience is a huge part of who they are, is commonly a very intense experience, particularly if it involves combat, and it indelibly marks the veteran. So it can be a dominating factor in who they are. So when we’re weighing the positives and negatives, the aggravators and mitigators of someone’s life, that’s their entire life. So the military service can often be the predominant mitigator. So it’s a very important thing to fully understand. And part of the issue that I see is that defense teams commonly will not have a military expert. And to some degree, they’ll say, well, gee, there’ll be a person maybe down the hall or something to that effect that is a was a former soldier or Marine who was in for two or three years. But but you need more than that because the the entire process, literally getting, the entire process can be a mystery to counsel in civilian courts, literally the process by which one obtains the records, understanding the records, just literally understanding what the records mean. Similarly, not just understanding the records, but also what does it mean in the context of this particular veteran? What does the fact that he served in Iraq in 2006 mean to what’s going on in this case? And those are important elements that you really need someone who’s very familiar with the military, the military to do. So I think a lot of that also is how do you present that to a decision maker? How do you present that to a prosecutor, to a judge, to a jury said is the most sympathetic and the most synthetic portrayal of the veteran? And when we were talking about Porter a moment ago and Porter’s history, one of the things that went through my mind is, One of the primary reasons that Porter’s military history was not presented was because during Porter’s time in the military, he actually did go absent without leave. And there was a belief among his trial counsel that, oh my gosh, she went AWOL, a Florida jury’s gonna hate that. But one of the most important things that comes out of Porter is to be able to present the military veteran’s story in a cohesive narrative. that explains why certain things happen in the person’s military career. For example, commonly, I will find that a soldier or a Marine will get in trouble about six months after coming back off of deployment. And this is commonly because it takes about that long for the veteran to start to fall into substance abuse issues, get in trouble the second or third time, and possibly be removed from the military. But what one has to do is to understand that you need to trace back not just this negative incident that happened in the military, but what are the underlying causes? And I think that’s why you need a military expert, someone who’s very familiar with military culture and how things work in the military to be able to explain that. And I think the second part of your question that talked a little bit about why is it happening, a military adage comes to mind. Sometimes civilian counsel don’t know what they don’t know. They don’t know that you can get records. They don’t know that there are people, that it’s not that difficult to find people who have served with your client. They don’t know what questions to ask. They don’t know what a particular medal or ribbon means. For example, a combat action badge means literally someone who is not trained to be infantry finds themselves in a combat situation. To me, that’s that’s a that’s a red flag for trauma. But not knowing those kind of things, I think, is a reason why sometimes civilian counsel does not choose to go down this route, does not choose to get an expert, does not choose to thoroughly investigate the veterans, the veterans background. I think that one of the things that the report does really well is The words that initially came to mind is it shines a spotlight on this critical gap in the capital criminal defense system. But to be honest, I don’t think it’s a spotlight. I think it’s a floodlight because it really shows how huge the problem is and how big a part of the population veterans are on death threat. And also not just that the veterans are a big part of the population, but how much the military experience affects the individual individual veterans. I think it provides a really good statistical basis for the argument that veterans, particularly combat veterans, are in a specific, separate category and should be treated that way.
Speaker 1
Well, it is certainly our hope that this will help educate both the public and defense teams about the prevalence of veterans on death row. Leah, to move to another section of the report, you also detailed the science that explains some service-connected trauma. Could you share an illustrative story of how a veteran’s physical or mental injuries contributed to the circumstances of their criminal case?
Speaker 4
Absolutely. We highlight the story of Patrick McDowell in our introduction. He came from a military family, enlisted in the Marines in high school, and was sent to the heart of the combat zone in Iraq. And there, he was quickly recognized for leadership. He earned a promotion to sergeant and several achievement awards. And he was appointed to the security detail for the battalion commander, which was a very prestigious position. He served two tours and was honorably discharged. So, you know, by all accounts, he had done very well in the military. However, behind that, there were these deeply traumatic experiences. He lost multiple friends to an IED explosion. He was haunted by images of Iraqi children dying. And when he returned, he was deeply struggling with PTSD. Unfortunately, as many veterans do, he developed addiction issues. He became addicted to meth. And he was able to get by for a time in a veterans treatment program. But when the program shut down due to COVID, he relapsed. So he started spiraling and after an episode of three days of drug use and no sleep, he came into a confrontation with a police officer during a traffic stop and he shot and killed the officer. This… pattern we saw again and again in every war, but also many stories of this in peacetime where the veteran may have been exposed to physical injury or neurotoxins that changed their brain chemistry in a way that made them behave differently than they once did and they could no longer control their impulses. So Patrick McDowell’s story really illustrates that and is a recent story because he was sentenced to death just last year. So he exhibited extreme remorse after the time, he actually asked the jury to sentence him to death. And he was only sentenced to death as the result of a kind of quirk of Florida law, where Florida is one of only two states in the country that allows non-unanimous jury verdicts for death. So one of his jurors voted against a death sentence. I think, you know, recognizing this mitigation that had been presented even despite his own request for a death sentence, but he was sentenced to death because Florida permits death sentences. by a mere 8 votes. This story is one of many harrowing stories in the report where this pattern occurs. There’s A hardworking and patriotic young person who enlists. They’re exposed to gruesome scenes of death and destruction, to harmful toxins or weapons. And we saw these same words over and over again. They come home different. You see this throughout court records, news reports, all of this. Friends and family say they’re not the same person. They spiral, they abuse drugs and alcohol, and they have violent outbursts, unfortunately, that may result in a tragic loss of life.
Speaker 1
Stephen, based on your clinical expertise, what is the benefit of presenting combat-related medical findings to juries? How can brain injuries or severe mental illness influence how a jury views a veteran’s culpability for guilt or sentencing purposes?
Speaker 2
Let me just start by saying, I don’t know that we do a very, that we can influence the juries. I mean, I think the… One way of looking at your report is that all the various efforts, and I salute all the efforts that people have made and the great work that folks like Kevin Cody and others have done. Really, when you can review these cases, you have to ask yourself, Are we making a difference? Are we able to educate juries? Are we able to open them to these considerations? And I don’t know. I have not seen a good, not that it’s not out there, I’ve not seen a good study that’s been able to look at how juries deliberate about veterans cases, particularly when they’re capital cases, and to do the kind of review and analysis that would inform us about what’s the best way to go about educating them and having these considerations inform their decision-making when it comes to the verdicts. In my own way of looking at it, I have felt that we at least need to explain to the juries with as much, quote unquote, black and white information as we can about what’s happened to these men and women, how the experiences of combat has affected them, and in fact, use more objective information to demonstrate what the effects are. Cases that the court allows. We look and study these veterans with volumetric MRI. That is a very detailed MRI that looks at the brain, literally pixel by pixel, area of the brain by area of the brain, and correlates it to neuropsychological testing. And that’s so you can see that here’s the on the neuropsychological testing and impairment and functioning. And here’s how you can see how the brain differs than what would be an age matched control for that individual. And so we’re to show the jury, look, it’s it really is objective. It is objective information as you can get. It’s black and white. This person’s brain and that we attribute to their combat experience, PTSD, traumatic brain injury, other injuries that cause pain, the facts that they self-medicate. This brain, in fact, is not the same as a brain of someone else who’s not had those experiences. And hopefully that can make a difference. It’s been very mixed. I don’t know if we can make a difference. It’s unclear. how we can do that when there is in this such a sort of a public sentiment that the death penalty is justified for people who commit such offenses. I think there’s a lot of work for us to do going forward and understanding how we can make a better case in a very humane way. in a way that we as Americans should subscribe to support our men and women who have served to protect our freedoms.
Speaker 1
Art and Stephen, you are both veterans yourselves, and you’ve spoken already to the challenge of helping juries understand military service because so few people in the United States have served in the military. In your experience, what one thing do you think juries need to better understand about military service? Could we start with Art?
Speaker 3
Sure. The thing that goes through my mind is what I think of as sine qua non. Were it not for the veteran’s experience, were it not for the fact that the veteran raised his or her hand and went to knowing that they would be going to Iraq, Afghanistan, or some other conflict zone, they would not be in the situation that they are in. And I think, and that accident, Patrick McDowell’s case, which I worked on, reminds me of that. He was a good student, he was a good son, but the war, the war in Iraq changed him dramatically. He, and the quote, I think Leah said it, was that who we got back was not who we sent over, they came back different, it was absolutely the case in Patrick McDowell’s case. And I also think that Patrick Vandell is somewhat archetypical of many of the clients that I see. And I think also that sometimes we might say, well, gee, isn’t that true in almost all capital cases that if a particular circumstance didn’t happen to them, they would not be in a position to commit capital murder. I think the thing to remember is that the situation the veteran ended up in, being in Iraq or Afghanistan, is something we specifically asked them to do and we knew when we sent this veteran over when we sent this company brains over we know and Steve mentioned this this is post-traumatic stress disorder traumatic brain injury are not new concepts they’ve been they were written about since Homer’s Odyssey we’ve been talking about PTSD throughout history so we know that when we send young people over whose brains are not fully formed into combat situations where they’re going to see horrific things, things at the distal end of human experience, they’re not gonna come back okay. And there’s a certain percentage that they’re not, and it’s not a small percentage. The VA estimates that somewhere around 30% of our veterans go through post-traumatic. And the symptomology, I think, as Dr. Znax has described, can be quite severe. So one of the things I really try to drive home to juries is that because of what this veteran went through, that is why this veteran isn’t is in this in this situation. They don’t come back the same. And largely the the roots of their crime in, say, Daytona Beach or Jacksonville or wherever, largely the roots of their crimes are in Kandahar Province, Afghanistan or Fallujah or some other combat zone. It’s their sacrifice for us that continues in the suffering that they’ve gone through since they’ve been out of the military, and unfortunately, commonly in the crimes that they commit.
Speaker 1
Stephen, anything you’d like to add?
Speaker 2
Look, I think that Captain Cody has said it as best as it could be said. I think what we find ourselves here is we’re asking our juries, as we’re asking our fellow Americans. to put themselves in the shoes of these men and women who are being tried in the court. To be understanding, to be empathic, to be able to appreciate what has been their experiences, and particularly the unique experiences of serving in the military, and that has influenced their conduct. And it gets to the basics here of what it means for us to be as truly understanding and supportive of each other in our communities. And I think that kind of sentiment is what we’re wrestling with. Can we do that? Are we able, irrespective of how heinous or horrendous these offenses are, these incidents that occur, are we able to be humanistic about how we deal with them, particularly when we’ve got people who we in this country rely on to protect our safety and security. We have a responsibility, and we as citizens of this country accept that responsibility. And I don’t know if that sentiment, that mentality exists, particularly when we go to the courts and as we look at what’s happening right now across the nation. That’s exactly as Captain Codia said. We need for people to appreciate that. We need for them to understand that that’s what’s happening here. I mean, would it be different if we still had a draft and more people served and more people understood what it was to, in fact, take time out and sacrifice for your country in some way, and therefore, that’s what it means to do your part to be a citizen? Maybe that would be a difference. And that’s for something for us to really think about and talk about as we go about our business and our lives day to day. So I think this is a real challenge going forward.
Speaker 1
Stephen, what medical and mental health resources do you think should be offered to better support veterans?
Speaker 2
I think there’s a lot that we can do, both those who are, you know, continuing with their lives, don’t get into the court system, just going about doing what they’re doing. The private health care system and the VA and in the prison. And I approach these cases with a thought of what we think of as person centered therapy. You know, much of medicine is based on diagnosis and evidence. And I think that there’s a lot of value in that, but it also inherently depersonalizes and dehumanizes the individual. What I think is important is to understand that person, that person’s experience, what’s going on, what their background is, how the various experiences that they’ve had or injuries that they’ve had, if it’s traumatic brain injury or if it’s an injury to the extremity or exposure to toxins or exposure to their illnesses, how that specifically affects their general health as well as their mental health. And I’d like to see more of person-centered treatments, patient-centered therapies developed and become routine in our practice. And that’s real important, particularly when we look at how we’re going to resource the Veterans Administration and our veterans health care system, as well as the military.
Speaker 1
And a similar question for you, Art. How do you think the legal system could better support veterans?
Speaker 3
I think there’s two things that come to mind. First of all, the recognition that I think I’ve been mentioned several times during this podcast, veterans are a different population. They’re not because of their experience. What they’ve gone through is dramatically different than the civilian populace. They should be treated different. And that should be, I think in the case of combat veterans with mental health issues, should be a categorical exclusion from the death penalty, which people may say, well, that’s somewhat extreme. But if you also, if you consider what the veteran has been through, why the veteran went through it, and what the results are, it doesn’t seem that far out of line. Secondarily, I think that short of that, and I see this in a lot of my appellate work, when I look at what was done at the trial level, there needs to be a military expert on every case, every capital case. to otherwise, it literally would be the same as saying, my client has a major mental health ailment, but we’re not going to bring in an expert to talk about it. Because the issues that pertain to a person’s military service can be just as complicated. For example, what was the particular client’s military occupation specialty? Where did they serve? What was going on at the time? It’s not just my client was involved in Iraqi freedom. It’s much more important to get right there on the ground and explain what was going on at this particular forward operating base, et cetera. The way I like to think about it and the way sometimes they teach it is that. If the judge can’t hear the screams, can’t feel the ground shake, and doesn’t smell the gunpowder, then we’re not doing our job. And the way you can do that is through bringing in a military expert, someone who’s very familiar with the military and with what the client went through to explain and to put in the proper context, the proper perspective of what the client went through. I think those two things, particularly category exclusion, would serve our veterans much better than they’re currently experienced in the criminal justice system.
Speaker 1
Are there strategies or interventions that either of you think could both support veterans currently on death row and reduce offending behavior in veterans?
Speaker 3
One of the things I think we need to do a much better job of is following our veterans once they leave the service. Particularly, I think this is true in the case of National Guardsmen and Reservists. There is somewhat of a rush when a Guardsman or Reservist comes off a deployment. Remember, they’re part-time soldiers, part-time Marines. There is a rush to get them off the payrolls and get them back into their civilian jobs. And commonly, the individual veteran wants to do the same thing. They want to go home. But there needs to be a greater period of transition. And there also needs to be more frequent checkups, if you will, more checking in with how this veteran is doing and not requiring the veteran to drive 200 or 300 miles to a VA center, but perhaps going out to that veteran and seeing how that veteran is performing, if you will, or is adjusting and helping that veteran get a meaningful job, a meaningful integration, because commonly what happens when a soldier or Marine goes overseas, The rest of the world keeps going. Their family keep going, their social circle keeps going. And when they come back, they’re somewhat left behind. So part of it is trying to make sure that reintegration goes right and to follow them when they get out to make sure they get back on the right track. My experience is that veterans will tend to go off track somewhere around six months. after they leave service and part of that is because they, by that time they disconnected from their service buddies, they also have had a chance, all the memories and the emotions that they were suppressing while they’re in the combat environment because they have to, because they have to do the job every day, that stuff all starts to turn up and they really start to think about it, they start to experience it, the terminology we use, they start to unpack it, they’re no longer compartmentalizing their emotions, Their emotions are in full force. And commonly, there’s no support system to help them deal with that. So while they’re trying to get back into their lives, they’re also dealing with Iraq. They’re also dealing with Afghanistan. So following our troops is extremely important.
Speaker 2
So I think Art is spot on with everything there. And I think that that’s very important when it comes to the transition of our service members for the years or so after they’ve left their particular duties. I think there’s also some initiatives we can take within the jails and penitentiaries. There are programs out there that specifically are able to bring together the veterans and have support programs. And I’ve worked with some that are very, very effective within the particular prisons. that are important, and as an exceptional group of people, again, taking the words that Captain Cody has used, I think it’s that we, the prisons, have a responsibility to set up such programs to support their veterans. In that way, I’d like to see a whole lot more improvement and development of the treatment services for these men and women. In general, of course, that would mean in a Bureau of Prisons and other state prisons that there would be… development of better medical care. But it’s really important for our veterans because they have been through a lot. They have some particular injuries. They’ve had particular exposures. And I think it’s our responsibility to them and their families that we take care of them while they’re incarcerated. So those are two sets of kind of areas of initiatives. that should be supported, should be promoted. And I think we have a responsibility to these individuals as a country for what they’ve done to us in their service.
Speaker 1
Is there anything else any of you would like to share with our listeners?
Speaker 3
I think an important thing to remember is we, in the country, I think we are undergoing a paradox. And the paradox is, and this is particularly played out in Florida, We are all about supporting our veterans, yellow ribbons, special programs, you know, 10% discounts, all those kinds of things, until the very reason that we’re honoring our veterans, they’re sacrificing what they’ve been through, is a distinct factor in them committing a crime. When that happens, somehow, some way, our veterans are no longer veterans. They don’t longer count as veterans, it’s almost like they’ve given up their status. And I think it’s really important to understand that veterans who commit crimes are just as worthy and have suffered just as much as those who haven’t. It’s just the symptomology has played out differently. And commonly, for example, in Mr. McDowell’s case, several of his colleagues said, oh yeah, I could totally see myself doing what Patrick did if I had been placed in similar circumstances. So it is, to some degree, very important to realize that vets don’t lose their status as veterans just because they’ve come in contact with the criminal justice system. Commonly, they’re the vets that are most hurting, the vets that have been through the most, and who the symptoms are the most extreme.
Speaker 2
Look, I think, and I’m old-fashioned, I think it really calls us to search our souls, for what it means to have faith and what it means to be able to believe in that we would do unto others as we would like them to do unto us. And I think there’s a lot for us to think about and write about and talk about when it comes to those very humane qualities and sentiments that should inform our lives. and what that, in this particular time, what the implications are across all the various political agenda and conversations that are occurring. We need to be able, as we’ve talked about here, to understand the experience these people have had. Realize, as any veteran would say, sometimes I can see that I’ve done that. and to think about what it means to exercise the judgment, but to exercise it in a way that is compassionate and thoughtful and really helps the country. Are we going to really be able to sustain what our values are here when a push comes to shove and we’ve got to say, oh, We really should understand this individual and what’s happened and do what we think is right. So that’s where I stand with this. I think it’s the best part of being a soldier. I think any time those of us who’ve been in senior positions and asked our soldiers to make sacrifices to go into combat, we need to feel deeply what we’ve really put on them. and how we’ve asked them to put their lives at risk. And that goes back again to thousands of years where nations and soldiers and leaders have asked people to put their lives at risk. And we as a country have asked these men and women to put their lives at risk. So let’s take that on. And let’s be honest with ourselves what that means for us in terms of what we have to do in return.
Speaker 1
Leah, any final thoughts?
Speaker 4
Yeah, so the Death Penalty Information Center, we document this decline in death sentences over the past 25 years, and we’ve seen a huge decline since the peak in the late 1990s. But our work here showed that the Veterans continue to be executed and sentenced to death. And this year, 2025, saw a dramatic escalation of executions of veterans, particularly in Florida. So this issue will only continue to be relevant. And Florida actually plans to execute two veterans in the 10 days after veteran’s day. And we’re looking at a year where 10 veterans may be executed, which has not happened in decades. So just wanted to give that context for how this issue does continue to be relevant, and our scientific understanding of how military service affects the way the brain works continues to evolve. In many ways, the military requires its service members to work on the extremes of human behavior. And we’ve seen from these investigations over the past 10 years or so that even if you never serve in combat, even if you’re a mechanic or you’re a drill instructor, that being pushed to those extremes can affect the way that your brain works. And hopefully, these scientific understandings will help juries empathize with defendants if shown that information. However, the legal requirements for investigation in capital cases regarding military service are only as powerful as the standards for presenting that information. So as long as these attorney decisions not to present such information continue to be upheld as strategic decisions, then the juries will continue to be deprived of that key information and veterans will continue to be sentenced to death.
Speaker 1
Thank you all so much for joining us today and for sharing your experience and expertise. If our listeners would like to learn more about the death penalty, they can visit DPI’s website at deathpenaltyinfo.org. Forgotten Service Lasting Wounds, the report discussed in this podcast, is released on November 10th, 2025, and will be available at that website. To support the 1201 podcast and all of DPI’s work, please visit deathpenaltyinfo.org/donate. And to make sure you never miss an episode, subscribe to 1201 in your podcast app of choice.
