How morally responsible can we hold Eddie Ray Routh for the death of Chris Kyle?

Editor's Note: On Tuesday, after less than three hours of deliberation, a jury rejected his insanity plea and found Eddie Ray Routh guilty, automatically sentencing him to life without parole.

A jury in Stephenville, Texas, convened last week to hear the case against Eddie Ray Routh, charged with shooting famed American Sniper Chris Kyle and his friend Chad Littlefield at a gun range about two hours southwest of Dallas. Kyle, who wrote a memoir detailing his successes as a Navy SEAL sniper that recently became a blockbuster movie, took Routh to the shooting range to connect with the younger veteran. Known primarily for being one of the deadliest snipers in the Iraq War, Kyle also tried to connect with other returning soldiers who were struggling to adjust to non-military life.

Recently, the jury watched Routh’s videotaped confession, in which a shaggy-haired Routh, draped over a table, says, “I knew if I did not take out his soul, he was coming to take mine next.”

Routh suffered from well-documented post-traumatic stress disorder, prompting his mother to call 9-1-1 and plead for help. “He’s threatening to kill himself and others,” she says in the taped phone call. “He probably needs to go to the VA to the emergency room and they need to admit him to the mental ward.”

Routh’s situation is not an isolated one. On January 13, the state of Georgia executed Andrew Brannan, a 66-year-old Vietnam veteran who was convicted in 2000 for the shooting of Deputy Sheriff Kyle Dinkheller during a routine traffic stop.

“Because military personnel have been conditioned to kill, desensitized to the act of killing, and taught to deny to themselves that they have in fact killed, combat veterans who suffer from the judgment-altering effects of PTSD and TBI are less culpable than others suffering from the same mental illnesses.”

Brannan’s acts are not in dispute. In January 1998, Dinkheller stopped Brannan, who was driving 98mph on Interstate 16. They pulled off onto an empty road where Brannan exited his white pick-up truck. The events that occurred after this stop were memorably recorded by Dinkheller’s mounted camera, from which you can hear Brannan yelling, “I am a goddamn Vietnam veteran!” just before a shoot-out between the two men and Dinkheller’s screams. Prior to this incident, Brannan had never exhibited any signs of violent behavior.

As presented by his attorneys at the clemency hearing earlier this month, Brannan’s mental health struggles were long-term and profound. He was first diagnosed in 1984 with bipolar disorder and PTSD by the U.S. Department of Veterans Affairs and later received full disability. He was hospitalized twice for significant periods of time to receive treatment. At the time of the shooting, Brannan was “living a marginal, fearful life, living in a primitive home made shack reminiscent of a bunker in Vietnam,” according to Dr. Paul Kollar, who evaluated Brannan for his state habeas petition and determined that Brannan’s acts were a direct result of his PTSD and bipolar disorder.

As Brannan and Routh’s stories show, the narrative of the returning veteran with symptoms of PTSD—flashbacks, nightmares, and heightened sensitivity—has become a national one. A study by the RAND Corporation conducted on soldiers returning from Iraq and Afghanistan in 2007-08 found that 20 percent reported symptoms of PTSD.

ps_break1.jpg

The idea that returning soldiers experience life differently post-deployment is not a new one. Works of literature as old as The Odyssey and Macbeth portray returning soldiers who feel disoriented and have trouble relating to others after their wartime experience. After World War I, men were described as having “shell shock.” In 1974, a public defender in Ashbury Park, New Jersey, used a defense of “traumatic war neurosis” to defend his client, a Vietnam veteran, from a breaking and entering charge. The judge threw the argument out because no such diagnosis was listed in the then-current DSM-II. (The Diagnostic and Statistical Manual of Mental Disorders offers the standard classification for mental disorders used by mental health professionals.) In 1980, PTSD was added to the DSM-III, at least partially due to the many difficulties faced by returning Vietnam veterans.

But the wars in Iraq and Afghanistan have been particularly marked in the media by stories of combat veterans returning with the now-hallmark scars of war: PTSD and traumatic brain injury. Everywhere we look, there are incidents in recent years of combat veterans who commit violent crimes in part perhaps because of PTSD symptoms. In 2008, the New York Times identified 121 veterans from Iraq and Afghanistan who were charged with killing someone after their return from service. (Three-fourths of these veterans were still enlisted at the time of the killing, so military courts, not criminal ones, adjudicated their cases.) Most of these cases cited some form of combat trauma as part of the root cause.

“PTSD does have a kind of viral quality to it, but does that relieve a person of their larger moral responsibilities?”

It is difficult to parse out the exact and numerous effects of PTSD symptoms among veterans. There are no real statistics about how many veterans enter the criminal justice system, and there has been a recent rise in alternative courts that attempt to keep veterans out of jail for non-violent crimes. The Bureau of Justice Statistics issued a report in 2004 reporting that 10 percent of all inmates in federal and state prisons had served in the military. The bulk served in Vietnam, and about four percent in the recent conflicts in Iraq and Afghanistan. But this statistic is presented as a downward trend in the incarceration of veterans. Experts point out that there may be some “lag time” before the incarceration statistics truly reflect the extent of PTSD’s role in criminal convictions.

There are even more discrepancies when it comes to determining whether combat veterans with PTSD may be predisposed to commit violent crimes. Despite the notoriety of killing sprees like those at Fort Carson, the data is less definitive on why some veterans with PTSD commit violent acts while the majority do not. The same BJS report cited above concludes that there is no statistical indication that there is a higher incidence of mental illness (including PTSD) in incarcerated veterans as compared to non-veteran inmates. In other words, we can’t really say that more veterans are incarcerated for crimes related to PTSD than the average population.

On the other hand, it is increasingly difficult to deny that there is some connection between veterans experiencing post-combat PTSD and violence. Anthony Giardino, a Marine combat veteran and attorney, points out that the stimulus response ingrained into veterans may make those diagnosed with PTSD or TBI more likely to react violently in certain situations. In his law review article “Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury,” he explains that combat veterans are trained in stimulus-response methods that enable soldiers to kill in times of war, but the effects linger once the soldiers return home:

Because military personnel have been conditioned to kill, desensitized to the act of killing, and taught to deny to themselves that they have in fact killed, combat veterans who suffer from the judgment-altering effects of PTSD and TBI are less culpable than others suffering from the same mental illnesses.

But experts warn against drawing too many conclusions about the effects of PTSD on behavior. The vast majority of people with PTSD—veterans and non-veterans alike—do not commit any violent acts. Dr. Gaithri Fernando, a psychologist at California State University-Los Angeles who studies PTSD in different contexts, says that people “should not confuse correlation with causation.” She continues:

We don’t really know right now whether veterans diagnosed with PTSD are more likely to commit more violent crimes. We know that in veteran populations, among people who commit violent acts, there’s a greater likelihood of a history of trauma. But, we don’t know the causal mechanisms of this relationship.

A better way to understand PTSD, Fernando says, is to see people as acting in concert with both their genes and the environment. It’s possible, for example, that some people may have a genetic tendency to be propelled into certain situations where they may react violently or be exposed to more violence; and in these situations symptoms of PTSD, like flashbacks, may lead to violent behavior.

Fernando is careful to state, though, that this in no way implies that veterans or anyone else should be blamed for their behavior. Instead, we should consider the totality of someone’s experience, including the type of trauma, the number of traumas someone may experience, and the age at which they experience them. This is supported by studies finding that veterans experiencing PTSD are at a higher risk of committing certain crimes if they also have other aggravating factors, like substance abuse problems and feelings of anger. As a result, it seems that PTSD’s main effects cannot really be understood in isolation.

Criminal laws require a narrower concept of individual responsibility that does not always do the best job of keeping up with psychology. While defendants may present mitigating evidence during sentencing, such decisions are left to the defense counsel’s discretion. In Brennan’s case, for example, his trial attorney never presented the copious available evidence of his deteriorating mental health and did not present the testimony of numerous Vietnam veterans nor that of Dr. William Boyer, Brannan’s treating psychiatrist.

ps_break1.jpg

Legally speaking, a diagnosis of PTSD alone doesn’t absolve someone of moral culpability, but it does indicate that perhaps judges and juries need to take into account the defendant’s mental state both prior to and during the commission of the crime. The problem with mental illness overall, though, is that people—experts, juries, judges, etc.—aren’t always sure how to understand it when it comes to behavior. The effects of such conditions on an individual’s ability to exercise autonomous decision-making are uncertain. David Morris, a former Marine officer and the author of The Evil Hours: A Biography of Post-Traumatic Stress Disorder, says that the “degree to which a person’s moral responsibilities are diluted by a PTSD diagnosis is really hard to say. PTSD does have a kind of viral quality to it, but does that relieve a person of their larger moral responsibilities?”

Chris Kyle during a book signing at Camp Pendleton in January 2012. (Photo: Cpl. Damien Gutierrez/Wikimedia Commons)

Chris Kyle during a book signing at Camp Pendleton in January 2012. (Photo: Cpl. Damien Gutierrez/Wikimedia Commons)

Brannan was tried in 2000, before 9/11 and the recent wars. The prosecutor in his case made light of PTSD, commenting that “everybody's got a little bit of PTSD. We've all been through some kind of trauma or another.”

Brannan’s lawyers who represented him in the clemency hearing believe that if the original trial were to occur today, with the current awareness of PTSD and its effects, Brannan might not have received the death penalty. Tom Lundin, one of those attorneys, says that he “doubted that anyone would make such a comment today,” given the large number of returning veterans from recent wars. Giardino echoes the sentiment, adding that he believes times have changed and most people no longer consider Vietnam veterans as just “crazy.”

Routh’s attorney plans to plead “not guilty by reason of insanity,” which is a difficult standard for the defense to meet. In an insanity defense, the burden of proof is on the defendant—people are presumed sane until proven otherwise. The insanity defense was greatly limited in federal court by a 1984 Congressional action, but Texas, like most states, follows what is know as the McNaughton rule, which requires a defendant to prove either that he did not know what he was doing or that he did not know what he was doing was wrong. It’s worth noting that the McNaughton rule is over a century old and no longer matches current psychological or neurological discoveries.

One other veteran was found not guilty by reason of insanity in a well-publicized case in Oregon. In 2009, a jury found Jessie Bratcher legally “insane” in the murder of an unarmed man, which his attorneys argued happened during a PTSD flashback. Because Routh’s confession includes him apologizing and admitting that he did something wrong, the prosecution will presumably argue that, even if Routh had PTSD or other metal health concerns, he knew on some level that his actions were wrong.

As the trial of Eddie Routh nears its end, it remains to be seen how evidence of his mental health will be presented and understood. Certainly his case, along with Brennan’s, exposes how little is understood about the effects of PTSD. It remains to be seen if, after over a decade of war, the public is more willing not just to listen to the stories of veterans but also grant them some degree of mercy.

Lead photo: Chris Kyle as depicted by Bradley Cooper in 2014's American Sniper. (Photo: Warner Bros.)

Related