FREDERICK, Md. — The Army says it has discovered a simple blood test that can diagnose mild traumatic brain damage or concussion, a hard-to-detect injury that can affect young athletes, infants with "shaken baby syndrome" and combat troops.
"This is huge," said Gen. Peter Chiarelli, the Army vice chief of staff.
Army Col. Dallas Hack, who has oversight of the research, says recent data show the blood test, which looks for unique proteins that spill into the blood stream from damaged brain cells, accurately diagnosing mild traumatic brain injury in 34 patients.
Doctors can miss these injuries because the damage does not show up on imaging scans, and symptoms such as headaches or dizziness are ignored or downplayed by the victims.
If the brain is not allowed time to recover and a second concussion occurs, permanent damage may result. Brain injuries afflict 1.4 million Americans each year, says the National Brain Injury Association. Seventy percent are mild cases.
About 300,000 troops in Iraq and Afghanistan have suffered concussions, mostly from roadside bombs, according to a RAND Corp. study.
Hack says the new findings could rival the discovery of unique proteins in the 1970s that now help doctors identify heart disease.
"This will in fact do for brain injury what that test did for chest pain. It's going to change medicine entirely," Hack says.
If the Army wins FDA approval for the test, the discovery could be a milestone in brain-injury care, says Gregory O'Shanick, national medical director for the Brain Injury Association of America.
"We will find people who are under the radar and then treat them appropriately," he says.
The Army collaborated on the biomarker program with Florida-based Banyan Biomarkers, company created by former faculty member of the University of Florida.
The company recently received $26 million to conduct a final, large set of clinical trials through 2013 on 1,200 patients suffering mild to moderate to severe brain injuries. The patients will be drawn from 30 trauma centers across the country. The success of this phase will determine FDA approval for public use of the biomarker test, Hack says.
"We're trying to see if we can make that (clinical trial) earlier and make it faster," Hack says.
Physician Jeffrey Bazarian said the results may be flawed if researchers are studying only people admitted into hospitals. Their brain injuries, even if characterized as mild, may be more severe than common forms of concussion.
"The key is whatever patients they study need to look like concussed patients, walking, talking and not necessarily in need of hospitalization," said Bazarian, a trauma specialist who has served on task forces involving brain injury and panels for the Centers for Disease Control and Prevention. "If you just look at the milds that are admitted ... that's potentially a flaw."
From USAToday.
Saturday, October 16, 2010
Tuesday, September 28, 2010
Not guilty, but stuck with big bills, damaged career
By Kevin McCoy and Brad Heath, USA TODAY
A judge had a warning for the Justice Department lawyers who accused Army Lt. Col. Robert Morris of conspiring to steal military supplies: The case could be "ill-advised." A nearly two-year Army probe had cleared him. And another U.S. attorney's office had declined to prosecute.
The cost of fighting federal charges could "take the guy's life savings away," the judge added.
Prosecutors went ahead, anyway. The judge's prediction was right — a jury needed only 45 minutes to find Morris not guilty. By then, though, his career had derailed. His parents had mortgaged their home to help with $250,000 in legal bills. He had drained his own savings.
The government he had served in uniform for decades could have compensated Morris for some of the losses. A 1997 law requires the Justice Department to repay the legal bills of defendants who win their cases and prove that federal prosecutors committed misconduct or other transgressions.
RARE VICTORY: Va. bankers beat government twice
VIDEO: One man's story of beating the government
EXPLORE CASES: Investigate the misconduct cases we ID'd
JUSTICE IN BALANCE: Prosecutors' conduct can tip the scales
FULL COVERAGE: Federal prosecutors series
But Morris didn't get anything from Washington. It took a gift from a Texas billionaire to help the Morris family pay off part of the debts.
The law, known as the Hyde Amendment, was intended to deter misconduct and compensate people who are harmed when federal prosecutors cross the line. A USA TODAY investigation found the law has left innocent people like Morris coping not only with ruined careers and reputations but with heavy legal costs. And it hasn't stopped federal prosecutors from committing misconduct or pursuing legally questionable cases.
USA TODAY documented 201 cases in the years since the law's passage in which federal judges found that Justice Department prosecutors violated laws or ethics rules. Although those represent a tiny fraction of the tens of thousands of federal criminal cases filed each year, the problems were so grave that judges dismissed indictments, reversed convictions or rebuked prosecutors for misconduct. Yet USA TODAY found only 13 cases in which the government paid anything toward defendants' legal bills. Most people never seek compensation. Most who do end up emptyhanded.
The Hyde Amendment did nothing for Morris, whose claim was dismissed by a judge who nonetheless criticized prosecutors and said they had "lost sight of the objective — justice."
It did nothing for Daniel Chapman, a lawyer who lost his job and had to sell his house to pay $275,000 in legal bills fighting a securities fraud case a judge threw out for "flagrant" prosecutorial misconduct.
And it did nothing for Michael Zomber, an antiques dealer who spent two years in prison and paid more than $1 million in attorney fees before his fraud conviction was thrown out.
The Justice Department, which fought the Hyde Amendment from the day it was proposed, nearly always resists efforts to win compensation, no matter how egregious a prosecutor's conduct might have been. Defense lawyers contend that the scarcity of compensation wins, amid a rise in misconduct charges, shows the law's not working.
"The Hyde Amendment is practically a useless tool for dealing with prosecutorial misconduct," said Jon May, a Miami lawyer who co-chairs the National Association of Criminal Defense Lawyers' white-collar crime committee. For a defendant to win, "the standard is so high that a prosecutor practically has to know" in advance "that his case is so meritless that it is unlikely to get a conviction."
USA TODAY found the government is seldom forced to pay because:
• Many defendants don't apply. The wealthy and those so poor they had court-appointed lawyers don't qualify. Others hold back because they'd have to spend time and money in court and pursue a new civil action against the government after winning their criminal cases. The investigation identified just 92 Hyde Amendment compensation cases since the law's enactment.
• Some defendants are pressured by federal prosecutors to give up their right to seek repayment in exchange for lenient plea bargains or getting their cases thrown out.
• Even those who seek compensation face what an appeals court called the "daunting obstacle" of proving, sometimes in another trial, that prosecutors wronged them. Congress deliberately set a high legal standard to qualify for payment: To win, a defendant must prove a prosecution had been "vexatious, frivolous or in bad faith." But the House and the Senate never held committee hearings that could have defined that standard.
An anonymous tip
The case against Morris began in 1999 with an anonymous tip to a Department of Defense hot line. The caller said the infantry officer had diverted $7 million of surplus medical equipment from a Marine Corps base in Albany, Ga., just south of his own post at Fort Benning.
Morris, now 54, was a decorated combat veteran and logistics expert. Superiors often had praised his ability to work his way through complex military supply rules and get the job done. He played a role, for example, in ex-Panamanian dictator Manuel Noriega's 1990 surrender to U.S. troops. When commanders decided to use deafening music to force Noriega out of the Vatican Embassy in Panama City, Morris quickly found and set up a sound system.
Morris' defense team said the medical supplies were intended to help a charity he had founded open health clinics in Rwanda. The non-profit, Partners International Foundation, had been approved by Army brass and had never paid Morris.
The Army's Criminal Investigation Division and the Defense Logistics Agency probed the charges and gave a report to Army Maj. Gen. John Le Moyne, the Fort Benning commander. Le Moyne issued a February 2001 decision that cleared Morris, finding that he didn't violate military law, hadn't lied and didn't misappropriate government property. "There was no theft," the decision stated.
Dissatisfied, the Defense Logistics Agency took its findings to the U.S. attorney's office in Columbus, Ga., which declined to prosecute. The agency then turned to the U.S. attorney's office in Dallas. In March 2001, a grand jury there indicted Morris on a theft conspiracy charge.
U.S. District Court Judge Joe Kendall in Dallas voiced doubts about the case. He said it looked as if investigators had shopped it to prosecutors in several jurisdictions. Getting a guilty verdict from a Texas jury could be hard, he warned, and prosecuting Morris could be a mistake. The prosecutors went forward, and Kendall granted a defense motion to transfer the case to Georgia for trial.
Le Moyne also tried to head off the August 2002 trial. He reminded prosecutors the Army had exhaustively investigated Morris. In a letter to an Army officer panel, Le Moyne said he had met with the prosecutor, Assistant U.S. Attorney Candina Heath, and told her "she would lose … and be embarrassed in the process." In a separate memo sent to prosecutors before trial, Le Moyne wrote that Morris had made an "error in judgment" that "did not rise to the level of a criminal offense." It concluded: "Bob Morris is not a crook!"
During a nearly two-week trial, the prosecution called 38 witnesses. The defense called none. The jury acquitted Morris in 45 minutes, a "lightning fast" verdict that U.S. District Court Judge Clay Land tied to the government's "woefully inadequate presentation."
The Dallas U.S. attorney's office and Heath declined to comment.
Legal bills from Morris' criminal case totaled $250,000.He said he faced at least $40,000 more in related expenses — and had exhausted his savings and life insurance benefits during the earlier Army investigation. So Morris' parents took two new mortgages on their Connecticut home, and also cashed life insurance policies, to help pay the lawyers.
Morris filed a Hyde Amendment application. Despite Judge Land's criticism of the prosecution, he dismissed the case in 2003. The decision to prosecute hadn't been totally baseless, he ruled, because Morris' logistics skill and signs that he'd skirted military rules provided "sufficient circumstantial evidence" to infer "criminal intent."
The judge did not rule that the prosecutors committed misconduct. For that reason, USA TODAY did not include the Morris case among 201 misconduct cases the newspaper found in an extensive search of federal court records since 1997.
The prosecutors, Land wrote, "will likely lick their wounds and fully recover. Because of the strict requirements for recovering fees and expenses, Lt. Col. Morris, an innocent (and now financially poorer) man, may not."
The case put a three-year hold on Morris' previously approved promotion to colonel. He got the promotion after the trial, but his military career plateaued and he ultimately retired Aug. 31. The case didn't leave him destitute, but there seemed little hope of repaying his parents anytime soon.
Then Texas billionaire and former presidential candidate H. Ross Perot and his charitable foundation stepped in. Grants totaling $210,000 to Morris and his father arrived in 2003 after the court denied Morris' compensation claim, the foundation's tax filings show. The organization, which often requires beneficiaries to sign confidentiality pacts, declined to comment.
Morris said the money helped his parents pay off their mortgages. It did not, though, cover thousands in other debts related to the investigations and trial. His widowed mother, Lillian, 86, is his dependent; he took over paying most of her bills.
Said Jack Zimmerman, a Houston lawyer who represented Morris: "If Congress really intended to compensate innocent people who were put upon by the government, they've got to revisit the Hyde Amendment standard. … Any court is loath to penalize the government … if it's a judgment call."
A compromise in Congress
Illinois Rep. Henry Hyde spoke bluntly when he rose on the House floor and introduced the law that bears his name. "This simply says to Uncle Sam, 'Look, if you are going to sue somebody … and the verdict is not guilty, then the prosecution pays something toward the attorney's fees of the victim,' " Hyde said on Sept. 24, 1997.
As proposed, the legislation would have required the Justice Department to pay legal fees to vindicated defendants unless the government proved the prosecution had been "substantially justified." That provoked a veto threat from the Clinton White House.
Then-deputy attorney general Eric Holder, the Justice Department's leader, said defendants such as John Gotti, the mobster who beat the rap at his first trials, might get "big taxpayer checks."
Asa Hutchinson, a former House member from Arkansas who led the opposition, said critics feared the law could have a "chilling effect," making prosecutors shy away from worthwhile but difficult cases.
Hyde compromised. He agreed to require defendants to prove they had been wrongly charged. And to win, they would have to show not just that they were innocent, but that prosecutors had acted vexatiously, frivolously or in bad faith.
Congress approved the measure, which Hyde had attached to an appropriations bill, without defining those terms. As a result, federal trial and appeals courts in different parts of the country have issued conflicting and often confusing rules about when the Justice Department must pay.
A U.S. district court in Virginia in 1999 ruled the standard for vexatiousness should be whether a "reasonable prosecutor should have concluded" that evidence was "insufficient to prove the defendants' guilt beyond a reasonable doubt."
The U.S. Court of Appeals for the 9th Circuit in San Francisco explicitly rejected the standard used in Virginia. It adopted a two-step rule: To win, a defendant must prove that the case was "deficient or without merit" and the prosecutor "acted maliciously or with an intent to harass."
The U.S. Court of Appeals for the 11th Circuit in Atlanta used different language. It said defendants must show a prosecutor's "state of mind (was) affirmatively operating with furtive design or ill will."
The U.S. Supreme Court, which often resolves conflicting lower-court rulings, has not yet accepted any Hyde Amendment cases.
The legal threshold is so high that Joseph McKay, a Montana lawyer who won nearly $17,000 in a 1999 Hyde Amendment repayment, says the legal standard has become "un-meetable" since his win.
Law not a deterrent
Hyde Amendment awards are so infrequent and so small that the law "hasn't been a major remedy for bad prosecutions," said Bennett Gershman, a Pace Law School professor who examined the misconduct cases USA TODAY identified. "It's a very minuscule deterrent" to prosecutors.
Even courts that have ruled that prosecutors violated defendants' constitutional rights find their hands tied. That's what happened when the government brought securities fraud charges against Las Vegas lawyer Daniel Chapman. The case collapsed in 2006 because prosecutors failed to turn over more than 650 pages of records his lawyers could have used to discredit prosecution witnesses.
A series of judges berated prosecutors for violating Chapman's rights. U.S. District Judge James Mahan, who presided over the trial, said it was "not some slight oversight, but it strikes at the very heart of the government's obligation." He said prosecutors had offered no proof that Chapman broke the law and then dismissed the case.
An appeals court was even tougher, ruling that prosecutors had committed "misconduct in its highest form" and "conduct in flagrant disregard of the United States Constitution."
Chapman, now 57, has spent four years seeking repayment of his legal bills. That effort has so far failed, because the Hyde Amendment only allows payment to a "prevailing party." Courts ruled the dismissal Chapman won didn't qualify because it didn't decide his innocence or guilt.
He's now pursuing another long-shot appeal. Chapman said his continued battle is about vindication and discouraging government misconduct as much as a desire for repayment. Without a strong deterrent, Chapman said, federal prosecutors will "do this over and over again."
Defendants who win Hyde cases also say they doubt that repayment awards have any impact on the Justice Department.
Ali Shaygan, a Miami doctor, was charged in 2008 with 141 counts of illegally administering prescription drugs. Acquitted in 2009, he sought Hyde Amendment payment because the government had engaged in what the trial judge called "win-at-all-costs" conduct. Shaygan won compensation of $601,795; the government is appealing.
Even if he wins again on appeal, Shaygan said the money would amount to "a drop in the bucket" that wouldn't change prosecutors' "habits."
Payments in all the winning Hyde Amendment cases ranged from $8,722 to nearly $1.5 million, USA TODAY found, less than some of the defendants' total legal costs. The 13-year payout total was just under $5.3 million.
A bargaining chip
Michael Zomber already had served his two-year sentence when prosecutors agreed to throw out his conviction stemming from a 2003 conspiracy indictment. There was just one catch: He had to give up give up his right to seek government repayment of his $1 million legal bills.
Before agreeing to a dismissal, federal prosecutors used Zomber's right to seek government repayment as a bargaining chip.
A federal jury in Pennsylvania had convicted Zomber of conspiracy to commit mail and wire fraud for the sale of four antique Colt pistols to businessman Joseph Murphy. Prosecutors said the weapons were worth half of what Murphy paid for them, and that Zomber lied to increase the price.
Zomber, now 60, spent almost two years in a federal prison camp before the U.S. Court of Appeals for the 3rd Circuit threw out his conviction. It found that the prosecutor, Robert Goldman, had failed to give Zomber's defense the letters Murphy wrote to Microsoft Chairman Bill Gates offering to resell the pistols "at cost" — the same price Murphy paid.
Goldman said he did nothing wrong and warned USA TODAY that he would have any article about Zomber's case "reviewed by counsel for potential litigation." He said he regrets only that Zomber's conviction was overturned because of "an insignificant document." But the Appeals Court ruled the letters could have given jurors "reasonable doubt" about whether Zomber overcharged Murphy.
The court's decision meant Zomber faced the prospect of another costly trial. He was unlikely to go back to prison. But he could have been ordered to pay $1 million or more in restitution.
Instead, defense lawyer Gerald Lefcourt reached a deal in which prosecutors ended the case.
"They weren't going to consider dismissing" it "unless we agreed not to pursue a Hyde Amendment application," he said. Lefcourt, Hutchinson and other lawyers say prosecutors now automatically include such waivers in many plea agreements.
Zomber said he had little choice but to go along with the agreement, because prosecutors are "always going to make you sign a Hyde Amendment" waiver. Battling for repayment, he said, was "just not worth it."
A judge had a warning for the Justice Department lawyers who accused Army Lt. Col. Robert Morris of conspiring to steal military supplies: The case could be "ill-advised." A nearly two-year Army probe had cleared him. And another U.S. attorney's office had declined to prosecute.
The cost of fighting federal charges could "take the guy's life savings away," the judge added.
Prosecutors went ahead, anyway. The judge's prediction was right — a jury needed only 45 minutes to find Morris not guilty. By then, though, his career had derailed. His parents had mortgaged their home to help with $250,000 in legal bills. He had drained his own savings.
The government he had served in uniform for decades could have compensated Morris for some of the losses. A 1997 law requires the Justice Department to repay the legal bills of defendants who win their cases and prove that federal prosecutors committed misconduct or other transgressions.
RARE VICTORY: Va. bankers beat government twice
VIDEO: One man's story of beating the government
EXPLORE CASES: Investigate the misconduct cases we ID'd
JUSTICE IN BALANCE: Prosecutors' conduct can tip the scales
FULL COVERAGE: Federal prosecutors series
But Morris didn't get anything from Washington. It took a gift from a Texas billionaire to help the Morris family pay off part of the debts.
The law, known as the Hyde Amendment, was intended to deter misconduct and compensate people who are harmed when federal prosecutors cross the line. A USA TODAY investigation found the law has left innocent people like Morris coping not only with ruined careers and reputations but with heavy legal costs. And it hasn't stopped federal prosecutors from committing misconduct or pursuing legally questionable cases.
USA TODAY documented 201 cases in the years since the law's passage in which federal judges found that Justice Department prosecutors violated laws or ethics rules. Although those represent a tiny fraction of the tens of thousands of federal criminal cases filed each year, the problems were so grave that judges dismissed indictments, reversed convictions or rebuked prosecutors for misconduct. Yet USA TODAY found only 13 cases in which the government paid anything toward defendants' legal bills. Most people never seek compensation. Most who do end up emptyhanded.
The Hyde Amendment did nothing for Morris, whose claim was dismissed by a judge who nonetheless criticized prosecutors and said they had "lost sight of the objective — justice."
It did nothing for Daniel Chapman, a lawyer who lost his job and had to sell his house to pay $275,000 in legal bills fighting a securities fraud case a judge threw out for "flagrant" prosecutorial misconduct.
And it did nothing for Michael Zomber, an antiques dealer who spent two years in prison and paid more than $1 million in attorney fees before his fraud conviction was thrown out.
The Justice Department, which fought the Hyde Amendment from the day it was proposed, nearly always resists efforts to win compensation, no matter how egregious a prosecutor's conduct might have been. Defense lawyers contend that the scarcity of compensation wins, amid a rise in misconduct charges, shows the law's not working.
"The Hyde Amendment is practically a useless tool for dealing with prosecutorial misconduct," said Jon May, a Miami lawyer who co-chairs the National Association of Criminal Defense Lawyers' white-collar crime committee. For a defendant to win, "the standard is so high that a prosecutor practically has to know" in advance "that his case is so meritless that it is unlikely to get a conviction."
USA TODAY found the government is seldom forced to pay because:
• Many defendants don't apply. The wealthy and those so poor they had court-appointed lawyers don't qualify. Others hold back because they'd have to spend time and money in court and pursue a new civil action against the government after winning their criminal cases. The investigation identified just 92 Hyde Amendment compensation cases since the law's enactment.
• Some defendants are pressured by federal prosecutors to give up their right to seek repayment in exchange for lenient plea bargains or getting their cases thrown out.
• Even those who seek compensation face what an appeals court called the "daunting obstacle" of proving, sometimes in another trial, that prosecutors wronged them. Congress deliberately set a high legal standard to qualify for payment: To win, a defendant must prove a prosecution had been "vexatious, frivolous or in bad faith." But the House and the Senate never held committee hearings that could have defined that standard.
An anonymous tip
The case against Morris began in 1999 with an anonymous tip to a Department of Defense hot line. The caller said the infantry officer had diverted $7 million of surplus medical equipment from a Marine Corps base in Albany, Ga., just south of his own post at Fort Benning.
Morris, now 54, was a decorated combat veteran and logistics expert. Superiors often had praised his ability to work his way through complex military supply rules and get the job done. He played a role, for example, in ex-Panamanian dictator Manuel Noriega's 1990 surrender to U.S. troops. When commanders decided to use deafening music to force Noriega out of the Vatican Embassy in Panama City, Morris quickly found and set up a sound system.
Morris' defense team said the medical supplies were intended to help a charity he had founded open health clinics in Rwanda. The non-profit, Partners International Foundation, had been approved by Army brass and had never paid Morris.
The Army's Criminal Investigation Division and the Defense Logistics Agency probed the charges and gave a report to Army Maj. Gen. John Le Moyne, the Fort Benning commander. Le Moyne issued a February 2001 decision that cleared Morris, finding that he didn't violate military law, hadn't lied and didn't misappropriate government property. "There was no theft," the decision stated.
Dissatisfied, the Defense Logistics Agency took its findings to the U.S. attorney's office in Columbus, Ga., which declined to prosecute. The agency then turned to the U.S. attorney's office in Dallas. In March 2001, a grand jury there indicted Morris on a theft conspiracy charge.
U.S. District Court Judge Joe Kendall in Dallas voiced doubts about the case. He said it looked as if investigators had shopped it to prosecutors in several jurisdictions. Getting a guilty verdict from a Texas jury could be hard, he warned, and prosecuting Morris could be a mistake. The prosecutors went forward, and Kendall granted a defense motion to transfer the case to Georgia for trial.
Le Moyne also tried to head off the August 2002 trial. He reminded prosecutors the Army had exhaustively investigated Morris. In a letter to an Army officer panel, Le Moyne said he had met with the prosecutor, Assistant U.S. Attorney Candina Heath, and told her "she would lose … and be embarrassed in the process." In a separate memo sent to prosecutors before trial, Le Moyne wrote that Morris had made an "error in judgment" that "did not rise to the level of a criminal offense." It concluded: "Bob Morris is not a crook!"
During a nearly two-week trial, the prosecution called 38 witnesses. The defense called none. The jury acquitted Morris in 45 minutes, a "lightning fast" verdict that U.S. District Court Judge Clay Land tied to the government's "woefully inadequate presentation."
The Dallas U.S. attorney's office and Heath declined to comment.
Legal bills from Morris' criminal case totaled $250,000.He said he faced at least $40,000 more in related expenses — and had exhausted his savings and life insurance benefits during the earlier Army investigation. So Morris' parents took two new mortgages on their Connecticut home, and also cashed life insurance policies, to help pay the lawyers.
Morris filed a Hyde Amendment application. Despite Judge Land's criticism of the prosecution, he dismissed the case in 2003. The decision to prosecute hadn't been totally baseless, he ruled, because Morris' logistics skill and signs that he'd skirted military rules provided "sufficient circumstantial evidence" to infer "criminal intent."
The judge did not rule that the prosecutors committed misconduct. For that reason, USA TODAY did not include the Morris case among 201 misconduct cases the newspaper found in an extensive search of federal court records since 1997.
The prosecutors, Land wrote, "will likely lick their wounds and fully recover. Because of the strict requirements for recovering fees and expenses, Lt. Col. Morris, an innocent (and now financially poorer) man, may not."
The case put a three-year hold on Morris' previously approved promotion to colonel. He got the promotion after the trial, but his military career plateaued and he ultimately retired Aug. 31. The case didn't leave him destitute, but there seemed little hope of repaying his parents anytime soon.
Then Texas billionaire and former presidential candidate H. Ross Perot and his charitable foundation stepped in. Grants totaling $210,000 to Morris and his father arrived in 2003 after the court denied Morris' compensation claim, the foundation's tax filings show. The organization, which often requires beneficiaries to sign confidentiality pacts, declined to comment.
Morris said the money helped his parents pay off their mortgages. It did not, though, cover thousands in other debts related to the investigations and trial. His widowed mother, Lillian, 86, is his dependent; he took over paying most of her bills.
Said Jack Zimmerman, a Houston lawyer who represented Morris: "If Congress really intended to compensate innocent people who were put upon by the government, they've got to revisit the Hyde Amendment standard. … Any court is loath to penalize the government … if it's a judgment call."
A compromise in Congress
Illinois Rep. Henry Hyde spoke bluntly when he rose on the House floor and introduced the law that bears his name. "This simply says to Uncle Sam, 'Look, if you are going to sue somebody … and the verdict is not guilty, then the prosecution pays something toward the attorney's fees of the victim,' " Hyde said on Sept. 24, 1997.
As proposed, the legislation would have required the Justice Department to pay legal fees to vindicated defendants unless the government proved the prosecution had been "substantially justified." That provoked a veto threat from the Clinton White House.
Then-deputy attorney general Eric Holder, the Justice Department's leader, said defendants such as John Gotti, the mobster who beat the rap at his first trials, might get "big taxpayer checks."
Asa Hutchinson, a former House member from Arkansas who led the opposition, said critics feared the law could have a "chilling effect," making prosecutors shy away from worthwhile but difficult cases.
Hyde compromised. He agreed to require defendants to prove they had been wrongly charged. And to win, they would have to show not just that they were innocent, but that prosecutors had acted vexatiously, frivolously or in bad faith.
Congress approved the measure, which Hyde had attached to an appropriations bill, without defining those terms. As a result, federal trial and appeals courts in different parts of the country have issued conflicting and often confusing rules about when the Justice Department must pay.
A U.S. district court in Virginia in 1999 ruled the standard for vexatiousness should be whether a "reasonable prosecutor should have concluded" that evidence was "insufficient to prove the defendants' guilt beyond a reasonable doubt."
The U.S. Court of Appeals for the 9th Circuit in San Francisco explicitly rejected the standard used in Virginia. It adopted a two-step rule: To win, a defendant must prove that the case was "deficient or without merit" and the prosecutor "acted maliciously or with an intent to harass."
The U.S. Court of Appeals for the 11th Circuit in Atlanta used different language. It said defendants must show a prosecutor's "state of mind (was) affirmatively operating with furtive design or ill will."
The U.S. Supreme Court, which often resolves conflicting lower-court rulings, has not yet accepted any Hyde Amendment cases.
The legal threshold is so high that Joseph McKay, a Montana lawyer who won nearly $17,000 in a 1999 Hyde Amendment repayment, says the legal standard has become "un-meetable" since his win.
Law not a deterrent
Hyde Amendment awards are so infrequent and so small that the law "hasn't been a major remedy for bad prosecutions," said Bennett Gershman, a Pace Law School professor who examined the misconduct cases USA TODAY identified. "It's a very minuscule deterrent" to prosecutors.
Even courts that have ruled that prosecutors violated defendants' constitutional rights find their hands tied. That's what happened when the government brought securities fraud charges against Las Vegas lawyer Daniel Chapman. The case collapsed in 2006 because prosecutors failed to turn over more than 650 pages of records his lawyers could have used to discredit prosecution witnesses.
A series of judges berated prosecutors for violating Chapman's rights. U.S. District Judge James Mahan, who presided over the trial, said it was "not some slight oversight, but it strikes at the very heart of the government's obligation." He said prosecutors had offered no proof that Chapman broke the law and then dismissed the case.
An appeals court was even tougher, ruling that prosecutors had committed "misconduct in its highest form" and "conduct in flagrant disregard of the United States Constitution."
Chapman, now 57, has spent four years seeking repayment of his legal bills. That effort has so far failed, because the Hyde Amendment only allows payment to a "prevailing party." Courts ruled the dismissal Chapman won didn't qualify because it didn't decide his innocence or guilt.
He's now pursuing another long-shot appeal. Chapman said his continued battle is about vindication and discouraging government misconduct as much as a desire for repayment. Without a strong deterrent, Chapman said, federal prosecutors will "do this over and over again."
Defendants who win Hyde cases also say they doubt that repayment awards have any impact on the Justice Department.
Ali Shaygan, a Miami doctor, was charged in 2008 with 141 counts of illegally administering prescription drugs. Acquitted in 2009, he sought Hyde Amendment payment because the government had engaged in what the trial judge called "win-at-all-costs" conduct. Shaygan won compensation of $601,795; the government is appealing.
Even if he wins again on appeal, Shaygan said the money would amount to "a drop in the bucket" that wouldn't change prosecutors' "habits."
Payments in all the winning Hyde Amendment cases ranged from $8,722 to nearly $1.5 million, USA TODAY found, less than some of the defendants' total legal costs. The 13-year payout total was just under $5.3 million.
A bargaining chip
Michael Zomber already had served his two-year sentence when prosecutors agreed to throw out his conviction stemming from a 2003 conspiracy indictment. There was just one catch: He had to give up give up his right to seek government repayment of his $1 million legal bills.
Before agreeing to a dismissal, federal prosecutors used Zomber's right to seek government repayment as a bargaining chip.
A federal jury in Pennsylvania had convicted Zomber of conspiracy to commit mail and wire fraud for the sale of four antique Colt pistols to businessman Joseph Murphy. Prosecutors said the weapons were worth half of what Murphy paid for them, and that Zomber lied to increase the price.
Zomber, now 60, spent almost two years in a federal prison camp before the U.S. Court of Appeals for the 3rd Circuit threw out his conviction. It found that the prosecutor, Robert Goldman, had failed to give Zomber's defense the letters Murphy wrote to Microsoft Chairman Bill Gates offering to resell the pistols "at cost" — the same price Murphy paid.
Goldman said he did nothing wrong and warned USA TODAY that he would have any article about Zomber's case "reviewed by counsel for potential litigation." He said he regrets only that Zomber's conviction was overturned because of "an insignificant document." But the Appeals Court ruled the letters could have given jurors "reasonable doubt" about whether Zomber overcharged Murphy.
The court's decision meant Zomber faced the prospect of another costly trial. He was unlikely to go back to prison. But he could have been ordered to pay $1 million or more in restitution.
Instead, defense lawyer Gerald Lefcourt reached a deal in which prosecutors ended the case.
"They weren't going to consider dismissing" it "unless we agreed not to pursue a Hyde Amendment application," he said. Lefcourt, Hutchinson and other lawyers say prosecutors now automatically include such waivers in many plea agreements.
Zomber said he had little choice but to go along with the agreement, because prosecutors are "always going to make you sign a Hyde Amendment" waiver. Battling for repayment, he said, was "just not worth it."
Monday, August 30, 2010
Protest at military funeral ignites a test of free speech
YORK, Pa. — Albert Snyder tears up, then turns angry as he recalls burying his Marine son while members of the anti-gay fundamentalist Westboro Baptist Church picketed nearby.
"I can remember being presented the flag at the graveyard. I can remember saluting the coffin," Snyder says of the unusually balmy day in March 2006 when the family memorialized Matthew, a lance corporal killed in Iraq.
Yet, Snyder says, he can't separate such moments from the memory that his only son's funeral was picketed by fundamentalist pastor Fred Phelps and his followers with an inflammatory message that had nothing to do with Matthew.
Disconnecting the death of his 20-year-old son from his reaction to the protests "became very difficult."
Snyder, who sued Phelps for his distress, says he feels like he has been stabbed, and the wound will not heal.
The case has grown beyond a single clash between a devastated father and an attention-seeking, fire-and-brimstone group into a major test of speech rights and of safeguards for the sanctity of military funerals. The Supreme Court will hear the case Oct. 6, a crucial First Amendment challenge against the poignant backdrop of war deaths, family suffering and the military's "don't ask, don't tell" policy that allows gays and lesbians to serve — as long as their sexual orientation remains secret.
Fourteen sets of outside organizations have entered the case. Those siding with Snyder include a majority of the states and a bipartisan group of U.S. senators, led by Harry Reid, D-Nev., and Mitch McConnell, R-Ky. Free speech groups, such as the American Civil Liberties Union, say they find Phelps' message horrific but that such speech is exactly what the First Amendment was intended to protect.
Supporters of Snyder, including the Veterans of Foreign Wars and the states, emphasize the importance of protecting the privacy of grieving families and minimize the value of the Phelps' speech.
Phelps, who preaches that God hates gay people and protests what he views as the nation's tolerance of homosexuality — particularly the "don't ask, don't tell" policy — brushes off Snyder's anguish. In a telephone interview from his Topeka home, Phelps says the father's claim of emotional injuries is exaggerated.
"He ought to be very thankful to us that we ... warn people about the perils of sinful conduct that will destroy a nation," Phelps says.
Phelps knew nothing about Matthew Snyder, who was not gay, beyond that his funeral in Westminster, Md., offered the chance to draw attention to Phelps' message. Among the signs he brought were some that said, "Thank God for Dead Soldiers."
Snyder sued Phelps and family members who were the primary demonstrators for the distress he suffered from their picketing and a Web video the Phelpses created about their protest. Snyder won a $5 million verdict in 2007. A federal appeals court overturned the judgment last year, saying the Phelps protest was protected by the First Amendment.
The dispute before the Supreme Court involves Maryland law, yet cases related to the Phelpses and other local laws are simmering across the country. The issue for the justices in Snyder v. Phelps is an individual's claim for damages from offensive messages, not the validity of government limits on protests near funerals.
"Free speech ideals usually are pretty abstract," observes University of Missouri law professor Christina Wells, who has written extensively on protesters' rights. "People say we agree with the First Amendment but when we get into areas that are offensive, like flag burning, people are much less tolerant."
Wells is among several scholars of First Amendment law, civil libertarians and news media representatives who have joined briefs stressing the need to protect odious speech.
The Veterans of Foreign Wars, among the groups on Snyder's side, counters in its brief, "If Albert Snyder, a grieving father of an American hero, cannot seek remedy from (Phelps and his relatives) for the emotional torment (they) viciously imposed upon him, what purpose do our laws serve?"
"You only get one chance to do a burial," adds Harrisburg, Pa., lawyer Timothy Nieman, who wrote the VFW's filing. He says the Westboro protest created "a circus atmosphere at a private, sanctified time."
'I still have so much anger'
Snyder, who has become a public face of families' grief for the thousands of troops killed in the wars in Iraq and Afghanistan, has received e-mails from across the nation, letters from troops in the field, stuffed toys, a quilt and other tokens of sympathy.
"A man who dies for his country, for peace, should not have a father who has to fight to bury him in peace," Snyder, an industrial equipment salesman, says during an interview in his lawyer's office. "I still have so much anger that I have to cope with."
Snyder, 55 years old with a salt-and-pepper beard, clasps his hands tightly in front of him and speaks slowly, trying to keep emotions in check, as he explains why he decided to sue the Phelpses: "Every time I thought of Matt or passed his picture on the wall, I would think about what these people did to him."
It was more than the hateful signs near the funeral at the Catholic Church service in the family's hometown, he says. The video on the Westboro website that Snyder found days later also caused him pain. Entitled The Burden of Marine Lance Cpl. Matthew Snyder, it asserted Snyder and his ex-wife had "taught Matthew to defy his creator" and "raised him for the devil."
Snyder said Phelps and other Westboro church members caused him depression and worsened his diabetes. Snyder prevailed in federal court in 2007 based on three Maryland state grounds: intentional infliction of emotional distress, intrusion on privacy and civil conspiracy.
The jury said Snyder was owed $2.9 million in damages to compensate him for the harm and $8 million in punitive damages, designed to punish Phelps. The judge reduced the punitive damages to $2.1 million, for a total of $5 million against the Phelpses.
In their appeal, the Phelpses said the case should have never gone to a jury because of the First Amendment principles at stake.
Part of anti-gay campaign
For Fred Phelps, who founded the Westboro church in 1955 and has been its only pastor, military funerals have become a prime site for drawing news media attention to his opposition to homosexuals, the government and sex abuse scandals within the Catholic Church.
The U.S. appeals court that heard the Snyder case noted that the Westboro Church focuses on "the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens." Among the signs Phelps and his congregants display, according to lower court records, are "Pope in Hell," "Priests Rape Boys," "Don't Pray for the USA," and "America is Doomed."
He and his grown children check local newspapers for obituaries and, Phelps says, try to send congregants to protest almost every day of the year. "When homosexuality rears its ugly head, and you don't preach and stop it, your nation is doomed," says Phelps, 80.
Phelps has made headlines for decades, including for protesting at the funeral of Matthew Shepard, the gay Wyoming college student slain in 1998.
Westboro church has about 60 members, most of whom are Phelps' relatives. Two grown daughters and four of Phelps' grandchildren joined him at the Snyder funeral.
Phelps' lawyer is one of his 13 children, Margie Phelps, who says the congregation was "engaging in public speech on a public right-of-way, about issues of vital public interest." She says church members "act out of a love for God, the Bible, and their fellow citizens."
Margie Phelps argued to the U.S. Court of Appeals for the 4th Circuit that the First Amendment protects their protests, as long as they follow local laws about how close they can get to a church.
The appeals court agreed, saying the case should never have gone to the jury.
The trial judge had declared that Snyder was not a "public figure," undercutting the First Amendment protection the Phelpses asserted. The appeals court, however, said the question was not the private or public status of Snyder, but rather the "type" of speech at issue.
"As utterly distasteful as these signs are," the 4th Circuit said, "they involve matters of public concern, including the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens."
Quoting from an earlier ruling, the court added, "the safeguards of liberty have often been forged in controversies involving not very nice people."
Speech advocates urging the high court to uphold the 4th Circuit ruling say natural public sympathy for military families and the Phelpses' shocking statements should not cloud the First Amendment stakes.
Joshua Wheeler, representing the Thomas Jefferson Center for the Freedom of Expression in Charlottesville, Va., says, "We do not challenge the suffering that Mr. Snyder has had to endure. We strongly disagree with the Phelpses' message and the manner in which they expressed it. But if the court sides with Mr. Snyder, the consequences for freedom of expression would be significantly chilling."
The Reporters Committee for Freedom of the Press, joined by 21 news media groups, adds, "This case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant."
For Snyder, the case is not about speech rights, but personal harassment. Many federal and state officials agree.
Washington lawyer Walter Dellinger, representing Senate leaders, tells the high court that free speech on public issues "does not encompass insults and verbal abuse intended to invade a private memorial ceremony and injure its participants."
He says protesters can take a stand in virtually any public place, but they cannot "hijack (a family's) private funeral as a vehicle for expression of their own hate."
Joining Snyder are 48 states — all except Maine and Virginia, which did not weigh in on the case — and the District of Columbia. In his appeal on behalf of Snyder, lawyer Sean Summers urges the court to focus on the targeted nature of the Phelpses' conduct against private people who Summers says were not public figures in a public debate.
Summers says because Matthew Snyder was not gay and not engaged in public debate, it was likely the Phelpses' signs and Web video were intended to hurt a particular servicemember and interfere with the family's grief.
Snyder recalls that Matthew decided to enlist in the Marines shortly after the U.S. had invaded Iraq in 2003. He had just finished high school and was only 17, but Snyder says he did not want to stand in his son's way. He had known that military service was a goal of Matthew, the middle of his three children.
"People say, 'If you had to do it all over again, would you do it all over again?' " Snyder says. "Yeah, I probably would because that's what his dream was."
Reposted from USAToday
"I can remember being presented the flag at the graveyard. I can remember saluting the coffin," Snyder says of the unusually balmy day in March 2006 when the family memorialized Matthew, a lance corporal killed in Iraq.
Yet, Snyder says, he can't separate such moments from the memory that his only son's funeral was picketed by fundamentalist pastor Fred Phelps and his followers with an inflammatory message that had nothing to do with Matthew.
Disconnecting the death of his 20-year-old son from his reaction to the protests "became very difficult."
Snyder, who sued Phelps for his distress, says he feels like he has been stabbed, and the wound will not heal.
The case has grown beyond a single clash between a devastated father and an attention-seeking, fire-and-brimstone group into a major test of speech rights and of safeguards for the sanctity of military funerals. The Supreme Court will hear the case Oct. 6, a crucial First Amendment challenge against the poignant backdrop of war deaths, family suffering and the military's "don't ask, don't tell" policy that allows gays and lesbians to serve — as long as their sexual orientation remains secret.
Fourteen sets of outside organizations have entered the case. Those siding with Snyder include a majority of the states and a bipartisan group of U.S. senators, led by Harry Reid, D-Nev., and Mitch McConnell, R-Ky. Free speech groups, such as the American Civil Liberties Union, say they find Phelps' message horrific but that such speech is exactly what the First Amendment was intended to protect.
Supporters of Snyder, including the Veterans of Foreign Wars and the states, emphasize the importance of protecting the privacy of grieving families and minimize the value of the Phelps' speech.
Phelps, who preaches that God hates gay people and protests what he views as the nation's tolerance of homosexuality — particularly the "don't ask, don't tell" policy — brushes off Snyder's anguish. In a telephone interview from his Topeka home, Phelps says the father's claim of emotional injuries is exaggerated.
"He ought to be very thankful to us that we ... warn people about the perils of sinful conduct that will destroy a nation," Phelps says.
Phelps knew nothing about Matthew Snyder, who was not gay, beyond that his funeral in Westminster, Md., offered the chance to draw attention to Phelps' message. Among the signs he brought were some that said, "Thank God for Dead Soldiers."
Snyder sued Phelps and family members who were the primary demonstrators for the distress he suffered from their picketing and a Web video the Phelpses created about their protest. Snyder won a $5 million verdict in 2007. A federal appeals court overturned the judgment last year, saying the Phelps protest was protected by the First Amendment.
The dispute before the Supreme Court involves Maryland law, yet cases related to the Phelpses and other local laws are simmering across the country. The issue for the justices in Snyder v. Phelps is an individual's claim for damages from offensive messages, not the validity of government limits on protests near funerals.
"Free speech ideals usually are pretty abstract," observes University of Missouri law professor Christina Wells, who has written extensively on protesters' rights. "People say we agree with the First Amendment but when we get into areas that are offensive, like flag burning, people are much less tolerant."
Wells is among several scholars of First Amendment law, civil libertarians and news media representatives who have joined briefs stressing the need to protect odious speech.
The Veterans of Foreign Wars, among the groups on Snyder's side, counters in its brief, "If Albert Snyder, a grieving father of an American hero, cannot seek remedy from (Phelps and his relatives) for the emotional torment (they) viciously imposed upon him, what purpose do our laws serve?"
"You only get one chance to do a burial," adds Harrisburg, Pa., lawyer Timothy Nieman, who wrote the VFW's filing. He says the Westboro protest created "a circus atmosphere at a private, sanctified time."
'I still have so much anger'
Snyder, who has become a public face of families' grief for the thousands of troops killed in the wars in Iraq and Afghanistan, has received e-mails from across the nation, letters from troops in the field, stuffed toys, a quilt and other tokens of sympathy.
"A man who dies for his country, for peace, should not have a father who has to fight to bury him in peace," Snyder, an industrial equipment salesman, says during an interview in his lawyer's office. "I still have so much anger that I have to cope with."
Snyder, 55 years old with a salt-and-pepper beard, clasps his hands tightly in front of him and speaks slowly, trying to keep emotions in check, as he explains why he decided to sue the Phelpses: "Every time I thought of Matt or passed his picture on the wall, I would think about what these people did to him."
It was more than the hateful signs near the funeral at the Catholic Church service in the family's hometown, he says. The video on the Westboro website that Snyder found days later also caused him pain. Entitled The Burden of Marine Lance Cpl. Matthew Snyder, it asserted Snyder and his ex-wife had "taught Matthew to defy his creator" and "raised him for the devil."
Snyder said Phelps and other Westboro church members caused him depression and worsened his diabetes. Snyder prevailed in federal court in 2007 based on three Maryland state grounds: intentional infliction of emotional distress, intrusion on privacy and civil conspiracy.
The jury said Snyder was owed $2.9 million in damages to compensate him for the harm and $8 million in punitive damages, designed to punish Phelps. The judge reduced the punitive damages to $2.1 million, for a total of $5 million against the Phelpses.
In their appeal, the Phelpses said the case should have never gone to a jury because of the First Amendment principles at stake.
Part of anti-gay campaign
For Fred Phelps, who founded the Westboro church in 1955 and has been its only pastor, military funerals have become a prime site for drawing news media attention to his opposition to homosexuals, the government and sex abuse scandals within the Catholic Church.
The U.S. appeals court that heard the Snyder case noted that the Westboro Church focuses on "the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens." Among the signs Phelps and his congregants display, according to lower court records, are "Pope in Hell," "Priests Rape Boys," "Don't Pray for the USA," and "America is Doomed."
He and his grown children check local newspapers for obituaries and, Phelps says, try to send congregants to protest almost every day of the year. "When homosexuality rears its ugly head, and you don't preach and stop it, your nation is doomed," says Phelps, 80.
Phelps has made headlines for decades, including for protesting at the funeral of Matthew Shepard, the gay Wyoming college student slain in 1998.
Westboro church has about 60 members, most of whom are Phelps' relatives. Two grown daughters and four of Phelps' grandchildren joined him at the Snyder funeral.
Phelps' lawyer is one of his 13 children, Margie Phelps, who says the congregation was "engaging in public speech on a public right-of-way, about issues of vital public interest." She says church members "act out of a love for God, the Bible, and their fellow citizens."
Margie Phelps argued to the U.S. Court of Appeals for the 4th Circuit that the First Amendment protects their protests, as long as they follow local laws about how close they can get to a church.
The appeals court agreed, saying the case should never have gone to the jury.
The trial judge had declared that Snyder was not a "public figure," undercutting the First Amendment protection the Phelpses asserted. The appeals court, however, said the question was not the private or public status of Snyder, but rather the "type" of speech at issue.
"As utterly distasteful as these signs are," the 4th Circuit said, "they involve matters of public concern, including the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens."
Quoting from an earlier ruling, the court added, "the safeguards of liberty have often been forged in controversies involving not very nice people."
Speech advocates urging the high court to uphold the 4th Circuit ruling say natural public sympathy for military families and the Phelpses' shocking statements should not cloud the First Amendment stakes.
Joshua Wheeler, representing the Thomas Jefferson Center for the Freedom of Expression in Charlottesville, Va., says, "We do not challenge the suffering that Mr. Snyder has had to endure. We strongly disagree with the Phelpses' message and the manner in which they expressed it. But if the court sides with Mr. Snyder, the consequences for freedom of expression would be significantly chilling."
The Reporters Committee for Freedom of the Press, joined by 21 news media groups, adds, "This case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant."
For Snyder, the case is not about speech rights, but personal harassment. Many federal and state officials agree.
Washington lawyer Walter Dellinger, representing Senate leaders, tells the high court that free speech on public issues "does not encompass insults and verbal abuse intended to invade a private memorial ceremony and injure its participants."
He says protesters can take a stand in virtually any public place, but they cannot "hijack (a family's) private funeral as a vehicle for expression of their own hate."
Joining Snyder are 48 states — all except Maine and Virginia, which did not weigh in on the case — and the District of Columbia. In his appeal on behalf of Snyder, lawyer Sean Summers urges the court to focus on the targeted nature of the Phelpses' conduct against private people who Summers says were not public figures in a public debate.
Summers says because Matthew Snyder was not gay and not engaged in public debate, it was likely the Phelpses' signs and Web video were intended to hurt a particular servicemember and interfere with the family's grief.
Snyder recalls that Matthew decided to enlist in the Marines shortly after the U.S. had invaded Iraq in 2003. He had just finished high school and was only 17, but Snyder says he did not want to stand in his son's way. He had known that military service was a goal of Matthew, the middle of his three children.
"People say, 'If you had to do it all over again, would you do it all over again?' " Snyder says. "Yeah, I probably would because that's what his dream was."
Reposted from USAToday
Saturday, August 21, 2010
Troops: Skipping Christian concert got us punished
RICHMOND, Va. (AP) — The Army said Friday it was investigating a claim that dozens of soldiers who refused to attend a Christian band's concert at a Virginia military base were banished to their barracks and told to clean them up.
Fort Eustis spokesman Rick Haverinen told The Associated Press he couldn't comment on the specifics of the investigation. At the Pentagon, Army spokesman Col. Thomas Collins said the military shouldn't impose religious views on soldiers.
"If something like that were to have happened, it would be contrary to Army policy," Collins said.
Pvt. Anthony Smith said he and other soldiers felt pressured to attend the May concert while stationed at the Newport News base, home of the Army's Transportation Corps.
"My whole issue was I don't need to be preached at," Smith said in a phone interview from Phoenix, where he is stationed with the National Guard. "That's not what I signed up for."
Smith, 21, was stationed in Virginia for nearly seven months for helicopter electrician training when the Christian rock group BarlowGirl played as part of the "Commanding General's Spiritual Fitness Concerts."
Smith said a staff sergeant told 200 men in their barracks they could either attend or remain in their barracks. Eighty to 100 decided not to attend, he said.
"Instead of being released to our personal time, we were locked down," Smith said. "It seemed very much like a punishment."
The Military Religious Freedom Foundation first reported on the Christian concert. The foundation said it was approached by soldiers who were punished for not attending or offended by the religious theme of the event.
The group's president, Mikey Weinstein, claims Christian-themed events are "ubiquitous" throughout the military, and he credited the soldiers for stepping forward.
"Whenever we see this egregious, unconstitutional religious tyranny our job is to fight it," he said.
Smith said he and the other soldiers were told not to use their cellphones or personal computers and ordered to clean up the barracks.
About 20 of the men, including several Muslims, refused to attend the concert based on their religious beliefs, he said.
Smith said he went up the chain of command and traced the concert edict to a captain, who said he simply wanted to "show support for those kind of events that bring soldiers together."
While not accepting blame, the officer apologized to the soldiers who refused to attend the concert and said it was not his intent to proselytize, he said.
"But once you get in there, you realize it's evangelization," Smith said.
From USAToday
Fort Eustis spokesman Rick Haverinen told The Associated Press he couldn't comment on the specifics of the investigation. At the Pentagon, Army spokesman Col. Thomas Collins said the military shouldn't impose religious views on soldiers.
"If something like that were to have happened, it would be contrary to Army policy," Collins said.
Pvt. Anthony Smith said he and other soldiers felt pressured to attend the May concert while stationed at the Newport News base, home of the Army's Transportation Corps.
"My whole issue was I don't need to be preached at," Smith said in a phone interview from Phoenix, where he is stationed with the National Guard. "That's not what I signed up for."
Smith, 21, was stationed in Virginia for nearly seven months for helicopter electrician training when the Christian rock group BarlowGirl played as part of the "Commanding General's Spiritual Fitness Concerts."
Smith said a staff sergeant told 200 men in their barracks they could either attend or remain in their barracks. Eighty to 100 decided not to attend, he said.
"Instead of being released to our personal time, we were locked down," Smith said. "It seemed very much like a punishment."
The Military Religious Freedom Foundation first reported on the Christian concert. The foundation said it was approached by soldiers who were punished for not attending or offended by the religious theme of the event.
The group's president, Mikey Weinstein, claims Christian-themed events are "ubiquitous" throughout the military, and he credited the soldiers for stepping forward.
"Whenever we see this egregious, unconstitutional religious tyranny our job is to fight it," he said.
Smith said he and the other soldiers were told not to use their cellphones or personal computers and ordered to clean up the barracks.
About 20 of the men, including several Muslims, refused to attend the concert based on their religious beliefs, he said.
Smith said he went up the chain of command and traced the concert edict to a captain, who said he simply wanted to "show support for those kind of events that bring soldiers together."
While not accepting blame, the officer apologized to the soldiers who refused to attend the concert and said it was not his intent to proselytize, he said.
"But once you get in there, you realize it's evangelization," Smith said.
From USAToday
Wednesday, August 18, 2010
Military sees it's time for a change in camouflage
Soon, when soldiers stalk the enemy in Afghanistan, they may be harder to see.
The Army this month began issuing new uniforms printed with a camouflage pattern called MultiCam, which is designed to blend in better with the varied landscapes of the country's mountainous terrain.
"MultiCam was selected as being the best pattern suited to Afghanistan," says Lt. Col. Mike Sloane, product manager for soldier clothing and individual equipment for Army's Program Executive Office Soldier.
The first to get the clothing is the 2nd Brigade 34th Infantry division, an Iowa National Guard unit preparing to deploy overseas from Camp Shelby, Miss. Brigades will get the uniforms as they deploy. Those that have already deployed will begin turning in their uniforms for new ones in December.
The current camouflage has been in use for six years and consists of hundreds of tiny squares bearing shades of tan, green and gray.
The MultiCam uniforms (as well as backpacks and other gear) are a patchwork of seven shades, including greens, tan and brown interspersed with dark brown splotches.
One significant difference between the two patterns is that MultiCam is designed not only to blend with the environment but also to reflect some surrounding colors, taking on an overall green appearance under a forest canopy and a tan look in the open desert, according to Crye Precision, the Brooklyn company that created the pattern.
The pattern also benefits U.S. troops who fight mostly under the cover of darkness. It is less reflective of infrared and near-infrared colors, "so at night you'll blend into the background a little bit" when seen through night-vision goggles, Sloane says.
In designing the pattern, makers took hundreds of photographs of the Afghan terrain and studied how animals use camouflage in nature, company founder Caleb Crye says.
The change is costing between $200 million and $270 million, Sloane says. He said the switch to MultiCam was ramped up after soldiers complained that their camouflage uniforms were ineffective in Afghanistan.
Capt. Joe Corsentino, an aviator, told the Army Times that the current combat uniform "stands out like a sore thumb" in Afghanistan.
"It doesn't blend into anything," 2nd Lt. Chris Cahak said.
The switch is at least the third Army battle uniform change in the past 20 years, says security analyst John Pike, director of Globalsecurity.org.
Previous patterns included the six-color "chocolate chip" desert pattern that had patches of dark brown, gray and black flecks and was worn in the Persian Gulf War in 1991, followed by a three-color desert uniform of light tan, dark tan and brown swaths. The current camouflage uniform was adopted in 2004.
Soldiers who tested MultiCam in military exercises at Fort Benning in Georgia said comrades were much harder to see among trees, or from a distance when on patrol and in mock battle situations, according to a 2007 report from the Army Research Laboratory.
The new uniforms will also have features such as buttons on pockets instead of Velcro, which can clog with sand. They also are made with a built-in bug repellent, called permethrin, to counter sand fleas and mosquitoes, Sloane says.
The quest to better cloak our fighters will continue, though. The Pentagon says it is soliciting ideas for camouflage that works well in other areas of the world.
"Somebody might come in with chameleon pattern," Sloane says. "We're hoping they will, but we don't know if the technology is there yet."
Reposted from USAToday.com
The Army this month began issuing new uniforms printed with a camouflage pattern called MultiCam, which is designed to blend in better with the varied landscapes of the country's mountainous terrain.
"MultiCam was selected as being the best pattern suited to Afghanistan," says Lt. Col. Mike Sloane, product manager for soldier clothing and individual equipment for Army's Program Executive Office Soldier.
The first to get the clothing is the 2nd Brigade 34th Infantry division, an Iowa National Guard unit preparing to deploy overseas from Camp Shelby, Miss. Brigades will get the uniforms as they deploy. Those that have already deployed will begin turning in their uniforms for new ones in December.
The current camouflage has been in use for six years and consists of hundreds of tiny squares bearing shades of tan, green and gray.
The MultiCam uniforms (as well as backpacks and other gear) are a patchwork of seven shades, including greens, tan and brown interspersed with dark brown splotches.
One significant difference between the two patterns is that MultiCam is designed not only to blend with the environment but also to reflect some surrounding colors, taking on an overall green appearance under a forest canopy and a tan look in the open desert, according to Crye Precision, the Brooklyn company that created the pattern.
The pattern also benefits U.S. troops who fight mostly under the cover of darkness. It is less reflective of infrared and near-infrared colors, "so at night you'll blend into the background a little bit" when seen through night-vision goggles, Sloane says.
In designing the pattern, makers took hundreds of photographs of the Afghan terrain and studied how animals use camouflage in nature, company founder Caleb Crye says.
The change is costing between $200 million and $270 million, Sloane says. He said the switch to MultiCam was ramped up after soldiers complained that their camouflage uniforms were ineffective in Afghanistan.
Capt. Joe Corsentino, an aviator, told the Army Times that the current combat uniform "stands out like a sore thumb" in Afghanistan.
"It doesn't blend into anything," 2nd Lt. Chris Cahak said.
The switch is at least the third Army battle uniform change in the past 20 years, says security analyst John Pike, director of Globalsecurity.org.
Previous patterns included the six-color "chocolate chip" desert pattern that had patches of dark brown, gray and black flecks and was worn in the Persian Gulf War in 1991, followed by a three-color desert uniform of light tan, dark tan and brown swaths. The current camouflage uniform was adopted in 2004.
Soldiers who tested MultiCam in military exercises at Fort Benning in Georgia said comrades were much harder to see among trees, or from a distance when on patrol and in mock battle situations, according to a 2007 report from the Army Research Laboratory.
The new uniforms will also have features such as buttons on pockets instead of Velcro, which can clog with sand. They also are made with a built-in bug repellent, called permethrin, to counter sand fleas and mosquitoes, Sloane says.
The quest to better cloak our fighters will continue, though. The Pentagon says it is soliciting ideas for camouflage that works well in other areas of the world.
"Somebody might come in with chameleon pattern," Sloane says. "We're hoping they will, but we don't know if the technology is there yet."
Reposted from USAToday.com
Friday, July 16, 2010
Soldiers killed themselves at the rate of one per day in June 2010 making it the worst month on record for Army suicides...
Soldiers killed themselves at the rate of one per day in June making it the worst month on record for Army suicides, the service said Thursday. There were 32 confirmed or suspected suicides among soldiers in June, including 21 among active-duty troops and 11 among National Guard or Reserve forces, according to Army statistics. Seven soldiers killed themselves while in combat in Iraq or Afghanistan in June, according to the statistics. Of the total suicides, 22 soldiers had been in combat, including 10 who had deployed two to four times.
"The hypothesis is the same that many have heard me say before: continued stress on the force, said Army Col. Christopher Philbrick, director of the Army Suicide Prevention Task Force. He pointed out that the Army has been fighting for nine years in Iraq and Afghanistan.
Last year was the Army's worst for suicides with 244 confirmed or suspected cases.
The increase was a setback for the service, which has been pushing troops to seek counseling. Through May of this year, the Army had seen a decline in suicides among active-duty soldiers this year compared with the same period in 2009.
Philbrick expressed frustration over the June deaths. "Because we believe that the programs, policies, procedures ... are having a positive impact across the entire force. The help is there."
A leading military suicide researcher says changing a culture that views psychological illness as a weakness takes time.
"I would expect it to be years," said David Rudd, dean of the College of Social and Behavioral Science at the University of Utah in Salt Lake City.
The mounting stress on an Army facing renewed deployments and combat in Afghanistan is also a factor, Rudd said. "That's not a challenge they (Army leaders) control. It's a challenge that the president and Congress controls," he said.
The Army also unveiled on Thursday a training video designed to combat suicides. It contains testimonials by soldiers who struggled with self-destructive impulses before seeking help. It is titled Shoulder to Shoulder: I Will Never Quit on Life.
Philbrick said this was an improved video that he hoped would reach troubled soldiers. The previous video did not resonate with average soldiers, he said. During a showing in Baghdad, soldiers laughed at it, Philbrick said. "In grunt language, it sucked," he said.
The Army's current suicide rate is about 22 deaths per 100,000, which is above a civilian rate that has been adjusted to match the demographics of the Army. That rate is 18-per-100,000. Only the Marine Corps has a higher suicide rate, at 24-per-100,000. Although Marine Corps suicides had been tracking similarly to last year's record pace, the service reported only one suicide in June.
Just among Guard and Reserve soldiers, suicides have occurred at a higher rate this year than last year, according to Army figures. There have been 65 confirmed or suspected cases this year, compared with 42 for the same period last year.
Reprinted from USAToday
"The hypothesis is the same that many have heard me say before: continued stress on the force, said Army Col. Christopher Philbrick, director of the Army Suicide Prevention Task Force. He pointed out that the Army has been fighting for nine years in Iraq and Afghanistan.
Last year was the Army's worst for suicides with 244 confirmed or suspected cases.
The increase was a setback for the service, which has been pushing troops to seek counseling. Through May of this year, the Army had seen a decline in suicides among active-duty soldiers this year compared with the same period in 2009.
Philbrick expressed frustration over the June deaths. "Because we believe that the programs, policies, procedures ... are having a positive impact across the entire force. The help is there."
A leading military suicide researcher says changing a culture that views psychological illness as a weakness takes time.
"I would expect it to be years," said David Rudd, dean of the College of Social and Behavioral Science at the University of Utah in Salt Lake City.
The mounting stress on an Army facing renewed deployments and combat in Afghanistan is also a factor, Rudd said. "That's not a challenge they (Army leaders) control. It's a challenge that the president and Congress controls," he said.
The Army also unveiled on Thursday a training video designed to combat suicides. It contains testimonials by soldiers who struggled with self-destructive impulses before seeking help. It is titled Shoulder to Shoulder: I Will Never Quit on Life.
Philbrick said this was an improved video that he hoped would reach troubled soldiers. The previous video did not resonate with average soldiers, he said. During a showing in Baghdad, soldiers laughed at it, Philbrick said. "In grunt language, it sucked," he said.
The Army's current suicide rate is about 22 deaths per 100,000, which is above a civilian rate that has been adjusted to match the demographics of the Army. That rate is 18-per-100,000. Only the Marine Corps has a higher suicide rate, at 24-per-100,000. Although Marine Corps suicides had been tracking similarly to last year's record pace, the service reported only one suicide in June.
Just among Guard and Reserve soldiers, suicides have occurred at a higher rate this year than last year, according to Army figures. There have been 65 confirmed or suspected cases this year, compared with 42 for the same period last year.
Reprinted from USAToday
Thursday, July 15, 2010
What happens when you receive your deployment orders...
The sequence of events on September 11, 2001 changed America forever. On this day, The United States of America lost its innocence. The land of the free was no longer as free as it once was. Open and free travel no longer seemed as open and free following the September 11 terrorist attacks. Subsequently, America soon found itself at war with Iraq and Afghanistan. The number of service members needed to adequately fight this war was tremendous. The number of service members on active duty was not enough to engage in effective combat. As such, the burden to pick up the slack fell upon the Reserve and National Guard forces of our military. Not in recent memory has there been a greater number of service members deployed conus or oconus. From a military development standpoint, the wars in Iraq and Afghanistan provoked the number of deployments to grow substantially. Since September 11, 2001, over 1.7 million service members have been deployed in support of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF). Operation Enduring Freedom’s military focus is on securing the nation of Afghanistan, while as its name suggest, Operation Iraqi Freedom is concerned with securing the nation of Iraq. In addition to the service members deployed to Iraq and Afghanistan, thousands of service members were deployed to Kuwait and Qatar in support of Operation Iraqi Freedom. Moreover, tens of thousands service members were deployed in support of contingency operations around the world.
So what happens when you receive your "orders" to go? Generally speaking your Unit, if you are deploying as a unit, will receive unit orders informing the Command that their unit will be deploying. If on the other hand you are an individual deployer as I was, you could receive your initial order via a phone call followed by orders requesting that you report for active duty. The amount of notice given to a service member ranges anywhere from several months in advance to only several days prior to the date ordered to active duty. I received my orders only three weeks before my scheduled day to report for duty.
There have been millions of Americans deployed to war zones around the world since this great country was founded over 230 years ago, however, recently it appears that many soldiers are deploying in greater frequency then ever before. In addition, some of those deployed are on their 2nd, 3rd, 4th and 5th deployment. In many cases, the deployment is involuntary and not knowing all of the information that will make the deployment less stressful creates a tremendous burden not only for the deploying service member but the family of that service member as well.
Deployment is much like a roller coaster ride at an amusement park. You first have the uncertainty of the entire event much like what you feel as you enter the gate to a roller coaster that you have never ridden before. You are unsure if you will make it. You may even attempt to get out of it at the very last minute. The roller coaster makes its climb and just as you begin the process of family planning and the actual deployment, you become anxious and nervous. After you’ve made it to the top of the roller coaster, you brace yourself for your quick decent, and at this point you realize there is no turning back. This is a similar feeling to what you may experience upon reaching your mobilization site but you brace yourself anyway and prepare for the many highs and lows this ride will offer.
Over the next several post, I will attempt to share some insights for service members and their families as to of what to expect during the time of deployment and the best way to minimize many difficulties sure to occur...
So what happens when you receive your "orders" to go? Generally speaking your Unit, if you are deploying as a unit, will receive unit orders informing the Command that their unit will be deploying. If on the other hand you are an individual deployer as I was, you could receive your initial order via a phone call followed by orders requesting that you report for active duty. The amount of notice given to a service member ranges anywhere from several months in advance to only several days prior to the date ordered to active duty. I received my orders only three weeks before my scheduled day to report for duty.
There have been millions of Americans deployed to war zones around the world since this great country was founded over 230 years ago, however, recently it appears that many soldiers are deploying in greater frequency then ever before. In addition, some of those deployed are on their 2nd, 3rd, 4th and 5th deployment. In many cases, the deployment is involuntary and not knowing all of the information that will make the deployment less stressful creates a tremendous burden not only for the deploying service member but the family of that service member as well.
Deployment is much like a roller coaster ride at an amusement park. You first have the uncertainty of the entire event much like what you feel as you enter the gate to a roller coaster that you have never ridden before. You are unsure if you will make it. You may even attempt to get out of it at the very last minute. The roller coaster makes its climb and just as you begin the process of family planning and the actual deployment, you become anxious and nervous. After you’ve made it to the top of the roller coaster, you brace yourself for your quick decent, and at this point you realize there is no turning back. This is a similar feeling to what you may experience upon reaching your mobilization site but you brace yourself anyway and prepare for the many highs and lows this ride will offer.
Over the next several post, I will attempt to share some insights for service members and their families as to of what to expect during the time of deployment and the best way to minimize many difficulties sure to occur...
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