Friday, June 17, 2011

In Honor Of My Client, A Veteran

By Steven Lucareli, TLC 2006

At the age of 17, my client, Tom enlisted in the Marine Corps, prematurely ending his education at Brookfield High School in Milwaukee, WI. It was 1962, and in a short time, Tom was sent to Vietnam.

In Vietnam, Tom participated in a number of named operations such as Operation Black Feret and Operation Orange. One day his platoon was ordered to take a reinforced enemy village. As they got to the perimeter of the village, Tom's group came under heavy fire, and he was shot in the head. The enemy then began a barrage with mortars, and as Tom lay mortally wounded on the battlefield, he was struck in the face and neck by shrapnel. It would be six hours before a helicopter could land and he was medevaced to safety.

Tom was operated on and the bullet in his head was removed, but the shrapnel in his face and neck remained, along with a muscle in his neck that was severed, but never repaired. He was eventually discharged from the Marines as disabled because he could not wear a helmet due to severe headaches.

Upon discharge, Tom returned to Milwaukee. Not content to sit and do nothing, he attempted to get a job with Inland Steel. On his first job application one day in the morning he was turned down, classified by the company as un-insurable due to his wartime injuries. He returned later that night and tried again and got hired on the third shift, where he worked for the next 10 years running a machine that expanded metal.

Factory life did not sit well with Tom, and after growing tired of it, he quit his job and moved to Phelps, Wisconsin, a very small town in the northern part of the state. He led a subsistence existence, supporting himself with hunting, fishing and trapping. His brother was also in Phelps, and had been adopted by a Native American man as his son. Tom was also ceremoniously adopted by his brother's father, as well. Eventually Tom met and married June, his wife of 23 years, a full blooded Chippewa Indian.

From 1961 to 1971, the United States sprayed some 20,000,000 million gallons of a defoliant and herbicide known as Agent Orange on approximately 20% of the land in Vietnam. In addition to Vietnam's flora, Agent Orange was also sprayed on the Vietnamese people, and our military personnel who were on the ground fighting the war. At the time, our service people were told it was nothing to be concerned about, a representation by our government and Dow and Monsanto, who made Agent Orange, that would later prove to be a terrible lie.

Agent Orange is a mixture of two toxic and deadly chemicals containing dioxins, some of the most deadly compounds created by mankind. In addition to killing all plant life that it comes into contact with, Agent Orange has also caused a variety of sicknesses and illnesses in people. In Vietnam, the legacy of Agent Orange has been generations of either stillborn babies or children born with severe birth defects and deformities. The adult population has suffered from a variety of cancers and incurable skin lesions, many resulting in horrible deaths to those afflicted. A large portion of the Vietnamese countryside remains contaminated by Agent Orange to this day, some 50 years after it was first sprayed by our government.

Tom was sprayed with Agent Orange while he was in Vietnam. Its impact on his health, as is the case with many Vietnam veterans, has been horrible. In Tom's case, his bones are slowly dissolving. His lower jaw is gone, along with all of its teeth, and his upper jaw and and teeth are following a similar pattern. Both of his shoulders are gone, and his knees are also rapidly deteriorating, to the point where he now has to walk with a cane, and rising from a chair causes him to make any number of guttural groans from the pain of putting weight on his joints. Perhaps worst of all, his spine is also deteriorating and he will eventually be left with no support in his upper body. By April 1993, the Department of Veterans Affairs had only compensated 486 victims, although it had received disability claims from 39,419 soldiers who had been exposed to Agent Orange while serving in Vietnam. To this day, Dow and Monsanto have attempted to blame the U.S. government for problems resulting from Agent Orange.

In May of 2010, Tom and his wife, who he affectionately calls Junebug, were driving through downtown Phelps. As they rounded a corner on ST HWY 17, a group of men were standing next to two double parked vehicles in the middle of the road. Tom and June were coming from June's parent's house, where they had drank a few beers. As Tom's vehicle passed the group of men, one of them made a racial slur directed at June, which upset Tom very much. He went around the block and came back and parked, exiting his vehicle to confront the men who were still standing in the road. As he approached them, one of the men struck Tom in the face, knocking him to the ground. Tom got up and was promptly struck in the face again, knocking him once more to the ground. A large younger man who was with Tom and his wife eventually convinced the other men to back off and Tom was helped to his feet and returned to his vehicle. Tom and his wife and the younger man then left the scene of the altercation.

Apparently not content with the beating they had put on Tom, one of the men from the group then called the sheriff's department and accused Tom of running over his foot and striking his vehicle, which were lies. Upon being dispatched to the scene, the sheriff's deputies got a vehicle description and ran a license check on Tom. Their check returned an address in Land O'Lakes, Wisconsin , which is about 15 miles from Phelps. The deputies then drove to Land O'Lakes, where they found Tom and June and the younger man sitting in a bar. There was a fresh, partially consumed glass of beer on the bar in front of Tom.

The sheriff's deputies took Tom outside, where, after a variety of field sobriety tests, they determined that he was under the influence of alcohol. At that point, Tom was arrested for OWI 4th, Criminal Damage to Property, and Disorderly conduct. The latter two charges were based on the false claims of the men who had called the sheriff's department after they had beaten Tom up. A later blood alcohol test performed on a sample of Tom's blood would reveal a BAC of .228, almost three times the legal limit.

After he was released from jail, Tom hired me to represent him on his various charges. Sadly, after reviewing the arresting officer's reports, I determined that we were not likely to win Tom's case at trial, and I then determined that I would have to negotiate the best deal I could for him. My main concern was the minimum jail time of 60 days that Tom would have to serve upon conviction on the OWI, but more troubling was the presumptive penalty of 1 year in jail, based on his blood alcohol level. A year in jail for a person with Tom's health problems was tantamount to a death sentence. I also knew Tom would lose his driving privileges for 2 years, which would be a real hardship because his wife does not drive, and there is no public transportation where they live.

I convinced Tom to go into a VA in-patient alcohol treatment program. I knew when I went to the prosecutor, I would have to offer him something to hang his hat on, and treatment was the best way to show him that Tom accepted responsibility for his problem, and had sought help. I also thought I could convince the DA to give Tom day-for-day credit for time spent in treatment against the mandatory jail sentence.

I met with the DA and explained to him the facts of Tom's case and his service related health problems. I told him we would not be fighting the charges at trial, and asked him for compassion, to treat Tom with some level of humanity. Despite Tom's aggravated blood alcohol level, the DA offered me the minimums of 75 days in jail, with credit for the 30 days Tom spent in treatment, meaning Tom would only have to serve 45 days in jail. I also got Tom the lowest possible fine, and 2 years of probation. After reaching an agreement with the DA, I then paid a visit to the jailer, and convinced him to let Tom do his jail time on home supervision. He agreed, meaning Tom would not spend any time locked up upon conviction.

Today we went to court for sentencing on Tom's case. The judge followed our recommendation to the letter. Once he learned of Tom's service related health issues, he was almost apologetic about having to impose any jail time. In the end, Tom was satisfied with the sentence he got.

The result in Tom's case is not about a multi-million dollar verdict. I do not begrudge anyone who gets that kind of justice for their client, most of whom deserve a verdict of that magnitude. Instead, the justice in Tom's case occurred because people were able to see him as a human being with flaws just like all of us have in one form or another. Showing them Tom's flaws helped them want to help Tom. The strength in our case was showing Tom with all of his vulnerabilities, and our government's efforts to consciously distance itself from Tom's needs after he came home from war.

I remember turning 18 in 1973 and having to go register for the draft. I still have my tattered selective service card in my wallet, which I carry as a reminder of how lucky I was not to have the horrors of war visited on me. I was one of a lucky few who were spared because by then the fallacy that we could win in Vietnam had been exposed. Tom, and many others like him, were not as lucky a I was. My wife has a cousin whose name is etched on the cold granite of the Vietnam War Memorial.

The men and women who returned from the Vietnam War did not receive a heroes welcome. Instead, they were the objects of ridicule and scorn, some being spat on by protestors as they arrived at the airports or in their hometowns. Most of them were no more than conscripts, drafted to fight a war that they did not want to be part of, or did not fully understand. They were the sheep of a flock shepparded by the United States' military industrial complex and politicians, many of whom grew wealthy on the backs of those who died. Their offense, if it can be called that, was that they did as they were ordered. Their service to our country was no less honorable than that of any other person who acted similarly in other, "justifiable", conflicts.

I do not like war. Usually, people are asked to kill other people to advance an idea or a belief, because as a race, we have proven ourselves to be so often incapable or unwilling to accept that others may have ideas or opinions that differ from ours. Instead of acceptance, we resort to exterminating those who do not agree with us. But, as much as I do not like war, I have a tremendous respect for those who have acted when called to service, mostly those who had no choice, who acted out of a sense of duty or obligation.

It was my privilege to serve as Tom 's lawyer. I hope that in some small way I was able to make his difficulties at this time in his life a little less onerous, and little less of a burden. Lord knows, the weight that he carries each day is heavy enough. What I am most amazed by is that during the entire time that Tom's case brought me into contact with him, never once did I hear him complain about the hand that life dealt him.

Many years ago when I worked in the prosecutor's office in the courthouse, I used to walk by the second floor elevator at the end of the day, and invariably there would be a man who worked in the Vet's office waiting for the elevator to arrive. He would be sitting in his wheel chair, both of his legs gone from a land mine that he had stepped on in Vietnam. No matter how hard my day had been, all it took was one look at that man sitting in his wheelchair for me to realize how lucky I was. I have not seen that man for many years, but my chance encounter with Tom has once again served to remind me how lucky I am.

1 comment:

  1. At the end of the day, no matter what we have experienced in the past 24 hours, it's what we do with those experiences that shape who we are, and how we see the world. We can complain about life, maintaining a "Woe is me!" attitude, or we can build upon our shortcomings, faults, and strokes of bad luck. You can never predict what is going to happen to you or anyone around you tomorrow, next week, next month, next year, or ten seconds from now. You may win the lottery tomorrow, or you may lose your job. Life is going to shovel dirt on you, all kinds of dirt.
    The trick to getting out of the well is to shake it off and take a step up. Each of our troubles is a stepping stone. We can get out of the deepest wells just by not stopping!

    "The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy." -Theodore Roosevelt