Brothers then, Brothers now
by: john harrison
Once when we were in Vietnam we found several hundred pounds of marijuana. Like the American Army did with beer, apparently the VC/NVA handed out marijuana to their troops as a morale booster.
According to one of my soldiers who said he was in a position to know, this was:
“Good shit. Really good shit, L-T.”
We burned all of it on top of a mountain near Dalat. Alpha Company was in a 360°, all around, defensive perimeter, but when we burned the marijuana the down wind side of the perimeter seemed to be especially well defended to me. So, I went to the up wind side.
I was not being virtuous, I thought that at least it could warn the rest even if I was shot. Anyway marijuana had never appealed to me because I was afraid of getting hooked, like I was already hooked on cigarettes. It wasn’t virtue that kept me away from the burning marijuana, it was fear. The fact that I liked smoking cigarettes did not change that I recognized that I was also hooked on them too.
On that hill top near Dalat was the first time I ran into marijuana in a professional sense. After I got back from Vietnam several years later I was a partner in a local law firm and that was when I ran into it again, professionally speaking.
Almost all law firms do some form of Pro bono work. That means doing free work for some clients as a matter of professional responsibility. Some law firms take impact cases as a form of Pro bono and also for the free advertising it generates for the law firm, but you do need to win those cases for that to really work, and the bigger the impact, the better the publicity, the harder they are to win. Anyway, I never thought “impact cases” were real Pro bono. So, we did not do them.
What my law firm did was that we would reduce our fee to our cost for middle income folks’ personal cases. The rich get any lawyer they want since they can afford to pay for it. There are many free legal services for the poor, but there is pretty much nothing for a middle income person in legal trouble.
Lets say your kid gets charged with marijuana possession, or some other crime, even reckless driving. You could be looking at paying a substantial legal fee or risk watching your child go to jail, or even prison; particularly in Virginia where we practiced.
If a case is criminal, the entire fee must be paid up front before the lawyer even lifts a pencil. It can devastate even an upper middle class family’s finances. For example, the up front fee for a felony could easily be the same as a year’s tuition at a good private university. A major felony indictment would be much more, still paid up front. Most people find it hard to just write a check for that kind of money.
So, that was one thing we did. The other Pro bono work we did was we would take any former enlisted airborne soldier’s case for free. I owe enlisted airborne soldiers a lot and that was one way I could recognize that debt.
Somehow, John Powers* a former member of the 173rd Airborne Brigade (Separate) heard of us and asked for legal representation.
John was a highly decorated former Staff Sergeant who had served in the 173rd Airborne Brigade (Separate) in Vietnam twice, two full tours. He had earned the Bronze Star for Valor with two Oak Leaf Clusters meaning that he had three of them, three Purple Hearts as well, a couple of Air Medals, an Army Commendation Medal with a “V” device and an Oak Leaf Cluster for that medal as well.
For those that have not been in the military, that’s a lot of medals. He also had all of the usual service and campaign ribbons, topped of course by a Combat Infantryman’s Badge with silver jump wings on the bottom.
Most veterans know that the awarding of medals often has more to do with who lives after a particular action rather than what happened. It is not that the medals awarded are not deserved so much as it is that there are often many more men that deserve medals but do not receive them because everyone that saw the deed is dead, or because there is no one left alive that can write well, or even because the person that earned but never received a medal was not particularly well liked in the unit. In addition, an officer is likely to get a Silver Star for the same things that an enlisted man might get a Bronze Star with a “V” device for doing.
Generally as well, the more elite the unit, the harder it is to win a particular medal. It’s not fair, but that is the way it often works. The only exception is the Medal of Honor, everyone is equally unlikely to get that medal.
Most important for a former Airborne trooper, John’s wings, his silver Parachutist Badge, had a little bronze star right in the center. That meant he had made what we called a “combat blast.” He had been a member of the 173rd Airborne Brigade (Separate) when they parachuted into combat in Vietnam. The 173rd was the only large American unit in the Vietnam War to make a combat jump and John had been there, done that. For an Airborne man that is truly special.
Jumping, on purpose, out of a perfectly good airplane in flight according to my brother the former Marine is simply stupid. However, landing by parachute among the enemy is the dream of men that jump out of perfectly good airplanes on purpose. John was such a man.
Even without the combat blast, how many jobs as a part of the job description require you to “close with and destroy” an enemy that may be shooting at you with a machine gun while his buddy also tosses hand grenades at you? How many require you to charge up a hill when there are people with automatic weapons, grenades, mortars, rockets, etc., that do not want you to join them on that hilltop? How many such jobs are there?
It is important to recognize that closing with and then killing a well armed, well trained enemy is just part of the job of being infantry. While it does not happen every day, doing this is not special. You do not get a medal for this; this is what you are supposed to do every time you run into the enemy. It is your job.
Given this, these kinds of medals, particularly for an enlisted man from an elite Airborne unit mean they have done something truly special, probably truly dangerous as well. Clearly, John had done something “special”, something probably incredibly dangerous as well, many times over.
John also had cancer, liver cancer. He had a particularly virulent form of liver cancer that had a less than 8% survival rate at the time. He was in a special trial program at Walter Reed Army Medical Center but still, he had a prognosis of less than a year to live when he asked for our representation. Today we would know it was Agent Orange, back then nobody knew, or if they did know, they were not telling. However, since John had still been in the Army when it started, Walter Reed had included him in the program.
Actually, John was special period. He was tall, well over six feet. He was thin, “raw boned” they called it in his native Texas. He had pale blue eyes and a shock of blond hair that he kept neatly trimmed when had any hair at all. At the time I knew him, because of his chemo treatments, John was bald and wore a hat all the time. But, most of all John was just a laid back, nice guy.
One of the things that chemo does besides treating the cancer and killing all of your hair follicles is that it gives you nausea. It can give you nausea so bad you can’t eat, and even if you force yourself to eat like a good patient, the nausea may make you throw it all up. That is why so many of the patients were dying in John’s program at Walter Reed; they were literally starving to death under some of the best medical care in the world.
All of them except John Powers that is. Except for the liver cancer, John was doing well, better than anybody else in the program. John was eating well, and he was keeping it down. His weight was stable. As far as he knew, no one in the Walter Reed program ever connected it to marijuana.
Remember this was in the late 1970’s. According to John, the Walter Reed doctors assumed that his lack of a nausea response to the brutal chemical medications they were giving him was genetic; but it was not genetic, it was marijuana, lots and lots of really good marijuana. Then and now marijuana was illegal in Virginia. John was not about to tell anybody that he was a user, a pot head and a grower, so the doctors either did not know that John was using, or they turned a blind eye.
No reputable doctors at the time prescribed marijuana to treat their patients. In fact, Federal law defined marijuana as an illegal, useless, drug, and found as a matter of law that it had no therapeutic effect whatsoever. However, though the law said that marijuana had no therapeutic effect, even the law cannot make the untrue, true.
Besides everything else, John Powers was a masterful marijuana grower with a very green thumb. He grew marijuana in his back yard. He had a townhouse in Fairfax County near Washington, D. C. It was an end unit with a much larger yard than most. He grew a lot of marijuana in that yard for years.
Getting the munchies regularly and the heavy duty chemo he was receiving at Walter Reed was what was keeping John alive.
You could almost sum up John when I met him in one sentence: he had cancer mostly in remission; he drove an old, beat up, but bright yellow, bath tub, Porsche convertible usually very fast, summer and winter, with the top down, and he grew a lot of really good marijuana in his back yard. He also liked to read.
All was fine until a Virginia State Trooper living next door to John noticed the marijuana plants. When the trooper saw the plants peaking over John’s fence he arrested John. In fact, he dragged John, just returned from a stay in the hospital, out of his townhouse in handcuffs.
I met John in the prisoners’ library at the Fairfax County Jail two days after his arrest. All of the interview rooms were in use so the Deputy Sheriff let me use the prisoners’ library to interview John. He told me his history. He said that he never sold marijuana. The closest he would come to that was now and then he would trade seeds with other growers. Because of the high level of THC in his marijuana plants, John’s marijuana seeds were sort of celebrities in the local world of marijuana growers, but they were still a rarity, because he refused to sell to anybody.
His legal trouble started when his plants grew taller than the fence in his backyard. When that had happened in the past he had just topped the plants to keep them below the fence. However, his most recent relapse and subsequent hospital stay had been poorly timed. His stay in Walter Reed that time started in late April, lots of rain, leading into May with lots of sun that year. His plants in his back yard had just exploded while he was in Walter Reed and his Virginia State Trooper neighbor had no sense of humor at all.
There was more pot in the attic in three large, steamer trunks, dried and ready to smoke. Counting the steamer trunks, what was drying in John’s two otherwise unused upstairs bedrooms and what was growing in the back yard the Virginia State Police seized about 200 pounds of pot.
Virginia’s laws on pot possession at the time were especially stringent. For example, there was already one unlucky soul in the Virginia State penitentiary system for his tenth year. His crime? Possession of three marijuana cigarettes. Because of the generous amount of marijuana in the home rolled joints, they met the weight requirement of the presumptive intent to distribute standard in Virginia. The judge in Richmond had maxed this unlucky man’s prison sentence out to thirty years. John was in trouble, big legal trouble.
The first thing I did was talk to John’s doctors at Walter Reed. They said that John had a year to live, at most. Actually they said that he should already be dead. John was one of their few stars and they did not want to lose him from their medical trial. Besides that, they just liked him.
I got John’s course of treatment from the Walter Reed doctors and filed an emergency motion in the Fairfax County Circuit Court to require the Sheriff’s Department which ran the jail to continue the cancer treatments while John was in custody. These treatments were quite extensive, and quite expensive as well. That was the opening shot of our defense. Naturally, the Circuit Court judge turned it down. Anything that is likely to cost the taxpayers of Virginia a lot of money is even more likely to be turned down by a Virginia state court judge.
However, I never really expected to win there. What I expected, and got was the Assistant Commonwealth Attorney’s agreement on a substantial reduction in John’s bail. That way John would be out of jail and could continue his treatment on the U.S. Army’s dime at Walter Reed. The Assistant Commonwealth Attorney did not want to risk that I would win the motion if I refiled it, this time in Federal Court in Alexandria.
John was out of jail until trial. Round one for us.
Then I got a copy of John’s DD-214 form which listed his medals, as well as copies of all of the citations describing what he had done to win those various medals. Finally I got the doctors at Walter Reed to write a diagnosis and a prognosis for John.
From the standpoint of what I was trying to do, the prognosis was wonderful; from John’s standpoint it was awful. According to the doctors John was sure to die, quite painfully, in less than a year, and under any standard, he was a certifiable war hero with an extraordinary record of personal heroism in America’s service.
I got it all together and took it to the then Fairfax Commonwealth Attorney, Robert Horan. I knew Bob Horan to say hello to in the courthouse, but nothing more. However, I was counting on his reputation as a true Virginia Gentleman. That really was all I had. If Horan was less than that, then John would surely die in prison.
All I wanted, all I hoped for was an agreement that the case would be continued for at least a year, because I expected that John would probably die by then. In the meantime he could continue treatment at Walter Reed. He could live in his home. I wanted it because John was a good man and a hero, a true American Airborne hero, and paying or not, he was my client.
There were no great legal theories to justify what I was asking for, only compassion, a little common sense and a sense of justice. All of which are unfortunately in very short supply in most courthouses.
He is retired now, but then Bob Horan was known as a tough prosecutor and in conservative Virginia that meant something. The Commonwealth Attorney, or state prosecutor, is an elected position in Virginia and when other prosecutors in the Commonwealth had a tough case that they were afraid they would lose, they would call on Bob Horan to win it for them. They called on him often. He was that good.
When he tried a case he would often sit at counsel table alone during motions and trial, no bevy of assistants, not even any worker bees outside the courtroom doing the grunt work to get the case ready for trial. Most times he prepared his own cases. He did his own legal research. He tried his own cases, and he usually won them as well. His office also would try any case where he thought the defendant was guilty, whether they thought they would win or not.
All of this is very unusual for a chief prosecutor. It is almost unheard of for an elected prosecutor. But, Bob Horan was so good that he could be different. That was exactly what I was counting on.
Sometimes I think: “How am I still alive? Given what I have done and where I have been, how could I still be alive?” I have not come up with an answer except that in Vietnam my platoon kept me alive and ever since then I have been equally lucky. Only the luck of having some very good, very tough paratroopers around me had saved me in Vietnam, and luck had also kept me alive as the target of an honest to God hit man after Vietnam (See: https://johneharrison.wordpress.com/2014/06/02/have-you-ever-been-the-target-of-a-hit-man/).
My life, that is what I think I owe the paratroopers that I served with in the 101st Airborne Division, just my life. That is why I took John’s case. Now I had to do something with it. I had a plan, but that was all I had so far.
I gathered all of the documents together and made an appointment with Bob Horan. I was ready with a real tear jerker of a spiel, but I never got to say any of it. When I arrived at his office, Bob’s secretary asked me to leave my materials. She assured me that Bob would review them himself and that he would call me before the end of the week.
Not a good start I thought. The plan was not working.
I was wrong. On Friday afternoon Bob Horan himself called me at my office. With little preamble he told me he had reviewed my materials and that he was willing to drop the charges entirely, but he had not talked to the state trooper yet. As a matter of courtesy, almost all prosecutors will talk to the arresting officer before they drop a case. However, he said that regardless of what the trooper said, the case against John would go away. He promised that.
I called John Powers and told him the good news. Then I went home for what I thought was a well deserved, great weekend with my kids.
On Monday it all turned to shit. That is a technical legal term, “turned to shit.” You could look it up in Black’s Law Dictionary.
The state trooper was enraged when Horan told him that he was dismissing the case. The problem was that the trooper had lived next door to a man that grew, and had in his house one of the largest marijuana seizures in Fairfax County history up to that time. After congratulating him the trooper’s boss had later figured out that the trooper had lived next door to the grower for about three years and that during all of that time marijuana, a lot of marijuana had been grown right under his trooper’s nose in John’s backyard.
Worse, almost every morning for those three years the trooper had eaten in a breakfast nook, bump out, in his kitchen that overlooked John’s backyard. However, the trooper had not noticed the bumper crop of marijuana, mixed in with tomato plants, the several rows of corn and other vegetables that John grew there every summer.
Although his boss did not know it, it had been the trooper’s daughter that had asked him what the plants were that were hanging over the their backyard fence. She thought that they were weeds growing in John’s garden. She wanted to get rid of them for her friend, the neighbor who gave them tomatoes every summer. The one who was very sick and was just back from the hospital.
The trooper really looked at the plants for the first time. He said one of those technical legal terms quite loudly and promptly went next door to arrest his neighbor.
According to Horan, in our awful Monday morning telephone call, now the rest of the troopers in the sub-station were asking the trooper things like: “How can you tell if a bank is being robbed?” or, “What does a speeding car really look like?” But, both the trooper, and his boss, were having a lot of trouble seeing the humor.
Since the marijuana was also a Federal offense, the trooper said if Horan dropped the case, he would go to the United States Attorney, the federal prosecutor. Since it was so much marijuana, and since it was such an easy conviction given the facts, Horan thought that the U. S. Attorney would take the case in a heartbeat.
We had to do something or John was on his way to a federal prison.
It was Horan’s idea. He had made a promise and he intended to keep it. He said that to quiet the State Trooper, he would keep the charges pending; it would all be there, the 200 or so pounds of weed that they took out of the yard and the upstairs bedrooms, and the three large chests of marijuana from the attic, the years of growing it in his backyard, everything and if the feds did anything Horan would call me and I would bring John in to plead guilty, but to a misdemeanor charge as minor as he could talk the judge into. Until then, the case would just sit there. You could count on Bob Horan.
Even the Feds can’t trump double jeopardy. While technically, it would not actually be double jeopardy because there are two sovereigns, the Commonwealth of Virginia and the Federal government. Still, trying John twice for exactly the same thing was practically impossible.
I told John what had happened and he was satisfied. That would normally be the end of our work together. The case was over.
However, about a week later John called me in a rage. He wanted to hire me again. He said that the Virginia State Police would not give him back his marijuana or even his seeds. In fact, they told him that they had already burned it. John said that it was his best crop ever, and that they had even taken the seeds he thought that he had hidden.
He had nothing left. He wanted justice. He wanted his marijuana back, and in fact he probably needed it to keep living. He demanded that I file suit immediately.
He was even more enraged when I told him that he could not win such a lawsuit. In legal terms, his marijuana and the seeds were contraband. In actual terms, they were already gone. The state police had “seized” them, not “stolen” them.
He would not shut up. John was still yelling at me when I finally just hung the phone up. Among other things, I was no longer his favorite “L-T”, but there was nothing legally that could be done that I could see.
That was the last time I heard from John until I saw in the Washington Post a little over a year later that he had died. He was buried with full military honors in Culpeper National Cemetary between his father and his younger brother. After John’s brother Bill had been killed in Vietnam he had been buried next to his father who was a World War II veteran, but they had left a space between them for John.
Bob Horan was there at the funeral. We nodded. The trooper did not show, but his daughter was there with her mother. They had liked John too. John was special.
*John Powers is not his real name. He was my client, and dead or not, I can’t use his name. jeh