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Flashbacks: Vietnam And Capital Punishment

by Michael Mello

Professor of Law
Vermont Law School

Capital punishment in our time has always reminded me of the Vietnam
war. Certain blood for uncertain reasons," as Tim O'Brien wrote of his
war. The only measure of success was the body count. No front lines, and
no rear areas. No epic battles, only a series of brutal firefights
against a largely invisible enemy. No lasting victories. Only casualties.
At 2:00 a.m. this morning, a Vietnam veteran became the 1,000 person
executed in the U.S. since capital punishment was reinstated in 1976.
Kenneth Lee Boyd had served as bulldozer operator in Vietnam, where he was
shot at by snipers daily. Boyd's execution gave me flashbacks.
Nearly two decades ago, I had the honor of serving as counsel for David
Funchess, the first Vietnam veteran executed in America. David was
execution number 56. There is a mordantly appropriate symmetry here. We
are now, again, engaged in an unpopular war against an unconventional

Through David's case I first learned about a new illness called Post
Traumatic Stress Disorder (PTSD). David had it bad. At the time of
David's capital murder trial in the mid-1970s, virtually no one had ever
heard of PTSD. By the time David was scheduled to die, in Spring 1986,
much more was known about PTSD. We tried to tell that to the courts. The
courts refused to listen, telling us we should have raised PTSD at the
time of David's trial.

David Funchess was a war hero. For his service in combat in Vietnam he
received the Purple Heart, the Vietnam Service Medal and the Vietnam
Campaign Medal (with device). The Vietnam war also destroyed David
Funchess. He was the first Vietnam veteran executed in America.

David was on death row for a botched robbery of a liquor store that left
two people, Anna Waldrop and Clayton Ragan, dead, and which left a third
person in a coma. Florida's Governor Bob Graham signed Funchess'
death warrant on March 20, 1986. Funchess had already been through one
full round of appellate and postconviction litigation, state and federal.
To stop the execution this time, Funchess' lawyers, led by Mark Olive, and
his investigators, led by Scharlette Holdman, would need to come up with
some pretty powerful new evidence on why David Funchess did not deserve to
die for his crimes.

Olive and Holdman did come up with powerful new information. Part of it
came in the form of statements from people who knew Funchess before his
service in Vietnam. They described a quiet, intelligent, and caring
person who was in no way headed toward a life of crime.

Funchess did well in school, graduating in 1965 with a rank of 47 out of
167 in his class. He had no criminal record, worked hard, and was well on
the way to transcending the race, class, and family problems that were so
prevalent in his youth. But for Vietnam, all indications were that he was
well on his way to entering Florida's middle class.

David embraced the traditional-American value of patriotism, and upon his
graduation from high school he enlisted in the U.S. Marine Corps. He was
subsequently sent to Vietnam, where he was immediately thrust into intense
combat. In addition to the horrors of jungle combat, Funchess was exposed
to the herbicide Agent Orange, which has since been linked to a wide range
of serious health damage in Vietnam veterans. Among the common symptoms
among many Vietnam veterans has been neuropsychological damage.

After his return from Vietnam, Funchess was a deeply disturbed and
confused young man. Compounding these problems, the medication he was
receiving for his painful leg wounds eventually led him onto a
debilitating heroin habit.

All U.S. veterans returning from Vietnam had challenges to overcome when
they tried to readjust to civilian life; some met these challenges more
ably than others. The damage that the war did to David Funchess, and to
too many other soldiers, made his transition to civilian life extremely
difficult. In addition to the effects of their time in combat, Vietnam
veterans had to contend with the negative reception many Americans gave
the returning soldiers. The American public was sharply divided over the
country's involvement in Vietnam, and U.S. soldiers suffered greatly from
this division. The unpopularity of the war carried over into many
Americans' attitudes toward returning Vietnam veterans. Not only did they
receive little recognition for having served their country, many were
overtly ostracized upon their return to the United States. As of mid-
1971, six months after David Funchess was discharged from the service, the
unemployment rate for Vietnam veterans aged 20-24 was 12.4 percent; for
African American and disabled veterans it was 25 percent. Many people
viewed the veterans as either violent or drug addicts or both.

Governor Bob Graham signed David Funchess's death warrant in Feb¬ruary
1986. My public defender office, CCR, took the lead in litigating the
claim that Funchess de¬served a new trial because PTSD was not recognized
at the time of Funchess's original trial, and because Funchess's moral
blameworthi¬ness for the murders could not be fairly judged without
reference to PTSD. The procedural barriers made such an argument futile,

Funchess's best chance was clemency, because the clemency process is not
burdened with the legal technicalities that exist in the appellate courts.
Governor Graham was free to consider Funchess's PTSD, and he had said some
things that indicated he was sympathetic to the prob¬lems of Vietnam
veterans. Governor Graham denied clemency, how¬ever, at 6:30 p.m. on
Monday, March 21, 1986, with Funchess's execu¬tion scheduled to take place
at 7:00 the next morning. Now it was up to the courts.

CCR's offices were only a few blocks from Florida's then new Viet¬nam War
Memorial. In the days and nights before Funchess's sched¬uled execution,
his fellow Vietnam vets stood around the clock vigil at the memorial.
Taking shifts, they stood at attention, day and night, rain or shine.
Whenever we at CCR had a lull in our battle to keep Funchess alive, we
would leave our offices and walk to the war memorial. Al¬though the
memorial is in the heart of downtown Tallahassee, what I remember most
about being there was the silence of the place. It was as though the quiet
dignity of all those vets absorbed the city noises of Tallahassee,
creating a sort of a black hole for sound. Nothing loud could enter the
perimeter of their vigil for David Funchess.

About an hour after Governor Graham denied clemency, Mark Olive called CCR
from the federal district court in Jacksonville to tell us that no
decision on our stay application was expected until 8:30 or 9:00 p.m. At
8:00, I left the CCR office for the vigil, where I stayed for about an
hour. Some religious leaders had joined the Vietnam vets.

At 10:30 that night, Mark called again from Jacksonville. The fed¬eral
trial court had denied everything, including permission to appeal. He read
us the judge's opinion over the phone, and it was a killer: pro¬cedural
technicality piled upon procedural technicality. There are bad ways of
losing a capital case in court, and there are worse ways this was the
worst way.

I delivered the bad news to the folks standing vigil. When I told them
that Funchess's hopes of a stay were dead, their response was si¬lence and
sadness. There was no surprise.

At midnight, Mark called to chat, and after our conversation, as soon as I
hung up the phone, it rang again. It was a clerk for the U.S. Su¬preme
Court calling: "Have you heard? Did the Eleventh Circuit tell you what
they did?" I said no. "Then I'd better let them tell you. Call 'em now." I
tried, but I got a busy signal. Finally, at 12:55 a.m. I got through to
the Eleventh Circuit clerk's office and found out that the court had
granted a stay until noon on Tuesday; in effect, a five hour stay. The
stay had been granted because an Eleventh Circuit judge had asked for a
poll of all the judges on the court, to see if there were enough votes to
take Funchess's case en banc, that is, to have it heard by the full
Eleventh Circuit.

At 1:00 a.m. Mark called again from Jacksonville to let me know he was
heading back to Tallahassee and to ask me to start drafting some
additional papers we needed to file in the U.S. Supreme Court. At 1:50
a.m., the Eleventh Circuit's death clerk called to read me the Eleventh
Circuit's opinion: the judges had voted against a review by the full
court. I continued to work on the draft for the Supreme Court, and then at
5:00 a.m. I returned to the vigil. The morning drizzle had ripened into a
downpour, though, and I stayed for only a few minutes.

I returned to the office and a morning of long stretches of waiting
interspersed with intervals of frenetic activity: drafting, dictating,
edit¬ing. At 10:10 a.m. one hour and fifty minutes before the stay was
scheduled to expire and David Funchess would be electrocuted the U.S.
Supreme Court's clerk called. The Court had extended the stay for five
more hours, until 5:00 p.m. The prison rescheduled the execution for 5:01
p.m. We continued to wait.

The news from Washington came at 3:25 p.m. The Court had de¬nied any
additional stay by a vote of seven to two, with justices Brennan and
Marshall dissenting. It was over. At 4:30 I went, to join the vigil one
last time; at 5:01, I laid a flower at the base of the Vietnam War

A reporter accurately described the scene at the Florida veterans'
me¬morial the evening David Funchess was executed:

At the late afternoon vigil, people looked at their watches. It was
5:20. "It must be over by now," one woman told another. Others held each
other and wept. Still others stared at the color photo¬graph of Funchess
in his Marine uniform placed atop a basket of flowers. The group formed a
circle in between the two huge granite columns that form the war monument.
Rev. Jim Hardison, coordinator of the death penalty project for Florida
IMPACT an interfaith lobby group for social jus¬tice issues said he was
angered not by capital punishment per se but by the way the state
administers it.

"Again, we've taken a poor, penniless, minority person who was mentally
ill and executed him," Hardison said.

Others present said they felt compelled to speak.

"We're really appalled by your callous indifference toward David
Funchess," said Linda Reynolds, Director of the Florida Clearinghouse on
Criminal justice, referring to the governor. "Viet Nam veterans will not
forget what you've done today."

"David Funchess was killed twice by society," Reynolds said. "Once in Viet
Nam and once today."

Later, from Jim Thompson, David's friend and fellow Vietnam veter¬an, who
had witnessed the killing, I learned that, at the end, "David was free,
from the first burst of electricity." We, Funchess's lawyers and
investigators and paralegals and secretaries and support staff, were not
fine. We went out to a dinner of steak and red wine, something of a CCR
ritual when our clients were executed. That night at dinner we cried. We
all cried, Scharlette and I included. For the rest of the night, I slept
on Mark Olive's couch at CCR. For some reason, going home to my clean bed
and orderly house would have felt like treason.
David Funchess was African American. Did I mention that?

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