Topic: In More Cases, Combat Trauma Is Taking The Stand

‘A Tale of Two Places’
“This is really a tale of two places,” James Gregg’s lawyer said during his opening statement in 2005 in the federal courthouse in Pierre, S.D.: the Crow Creek Indian Reservation where the killing took place and “a very, very faraway” place, “a place called Iraq.”
By framing the case this way from the start, the lawyer, Timothy J. Rensch, made it clear that Mr. Gregg’s explanation for the “murder in Indian country,” as the charge read, would be inextricably bound to his year as a National Guardsman in Iraq.
That approach rankled the prosecutor, who referred to it as “waving the flag,” although Mr. Rensch stated that he was not trying to use Iraq “as an excuse” since Mr. Gregg was arguing self-defense.
“But you need to understand about Iraq and what happened to Jim over there for you to be able to see things from his point of view, and understand his thinking, and especially understand, really, his desperation at the end,” Mr. Rensch said.
On the evening of July 3, 2004, Mr. Gregg, then 22, spent the night with friends in a roving pre-Independence Day celebration on the reservation where he grew up, part of a small non-Indian population. They drank at a Quonset hut bar called the Pit Stop, in a trailer community and finally at a mint farm where they built a bonfire, roasted marshmallows and made s’mores.
According to the prosecutor, Mr. Gregg got upset because a young woman accompanying him gravitated to another man. This, the prosecutor said, led to Mr. Gregg spinning the wheels of his truck and spraying gravel on a car belonging to James Fallis, 26, a former high school football lineman who grew up performing American Indian dances on what is called the powwow circuit.
Some time later, a confrontation ensued. Mr. Gregg was severely beaten by Mr. Fallis and, primarily, by another man, suffering facial fractures. Later that night, with one eye swollen shut and a fat lip, he drove to Mr. Fallis’s neighborhood.
Mr. Fallis emerged from a trailer, removed his jacket, asked Mr. Gregg if he had come back for more and opened the door to Mr. Gregg’s pickup truck. Mr. Gregg then reached for the pistol that he carried with him after his return from Iraq. He pointed it at Mr. Fallis and warned him to back away.
Mr. Fallis moved toward the trunk of his car, and Mr. Gregg testified that he believed Mr. Fallis was going to get a weapon. He started shooting to stop him, he said, and then Mr. Fallis veered toward his house. Mr. Gregg fired nine times, and struck Mr. Fallis with five bullets.
Mr. Gregg drove quickly away, ending up in a pasture near his parents’ house. From there, he spoke on the phone to his best friend, Jacob Big Eagle, who told him that Mr. Fallis was dead.
According to Mr. Gregg’s testimony, he then put a magazine of more bullets in his gun, chambered a round and pointed it at his chest.
“Jim, why were you going to kill yourself?” his lawyer asked in court, seeking to rebut the prosecutor’s contention that guilt had driven him to suicidal despair.
“Because it felt like Iraq had come back,” Mr. Gregg said. “I felt hopeless. All that happened, no one would believe me. That I didn’t want this to happen. I never wanted to shoot him. Never wanted to hurt him. Never. Everything happened just so fast. I mean, it was almost instinct that I had to protect myself.”
Tense Courtroom Atmosphere
The atmosphere in the courtroom was tense throughout the trial, with American Indians on one side of the aisle and white ranchers on the other. Complicating matters, the participants in Mr. Gregg’s case traveled, in a sense, back and forth between the bluffs of the Missouri River and those of the Tigris as they grappled with the relevancy of his military experience.
Mr. Gregg joined the National Guard at 18. He was studying at a technical school, with the goal of becoming a diesel mechanic, when his combat engineering company, whose expertise resided in bridge building, was shipped to Iraq in the spring of 2003.
“He left for Iraq enthusiastic and energetic and eager to serve his country,” wrote one of four mental health professionals, including two government officials, who diagnosed PTSD in Mr. Gregg. He “returned impaired by PTSD complicated by his disillusionment with the military operation in Iraq.”
After building a bridge across the Tigris River, his National Guard company effectively became an infantry unit. Mr. Gregg estimated that he searched well over 10,000 vehicles and fired over 1,000 rounds.
Mr. Gregg found checkpoint duty unbearable, said Michael Furois, a Department of Veterans Affairs psychologist who treated him after his arrest. According to Mr. Furois’s testimony, Mr. Gregg disliked “standing guard at a gate when the Iraq civilians would bring in their dead or wounded and would be yelling and crying and blaming those at the gate for that occurring.”
After many months in Iraq, Mr. Gregg testified, he began to think about suicide, hoping that his “chance” at death would come if he volunteered for dangerous missions. His superior officer, Sergeant Long, testified that he selected him for a nighttime patrol team, instructing them never to hesitate when they perceived a threat because “if you hesitate, you’re dead.”
Cross-examining Sergeant Long, Mikal G. Hanson, an assistant United States attorney, asked him if he were implying that his instruction about hesitating had caused Mr. Gregg, on his return to the United States, to shoot “an unarmed civilian.”
“I hope not,” Sergeant Long said.
When Mr. Gregg’s tour of duty ended in March 2004, he started drinking heavily to ease his stress and expressed the wish that he had died in Iraq.
Mental health experts for the defense said, as one psychiatrist testified, that “PTSD was the driving force behind Mr. Gregg’s actions” when he shot his victim. Having suffered a severe beating, they said, he experienced an exaggerated “startle reaction” — a characteristic of PTSD — when Mr. Fallis reached for his car door, and responded instinctively.
Mr. Gregg’s trial lawyer put it theatrically: When Mr. Fallis rushed at Mr. Gregg, he said, Mr. Gregg switched into military mode. “What does he think?” the lawyer said. “Lethal threat, lethal threat, lethal threat, neutralize threat, boom, boom, boom, boom, boom, boom, boom, boom, boom, continues to shoot.”
The prosecutor, reflecting his skepticism about this explanation, asked Mr. Gregg if he had been a “walking time bomb” since Iraq. “You’re not telling this jury,” Mr. Hanson said, “that National Guard members like yourself that went through that experience are a threat to kill people?”
Mr. Gregg: “I wouldn’t know.”
The prosecutor also referred to Mr. Gregg’s military experiences for his own purposes, asking whether military trainers tried to strengthen soldiers’ minds as well as bodies.
“Not really,” Mr. Gregg said. “They actually break down your mind.”
“Break down your mind,” Mr. Hanson said. “Explain that to the jury.”
“They break down your mind, and then they try to build you back up,” Mr. Gregg said.
“Into a killer?” the prosecutor asked.
“Yes,” Mr. Gregg said.
The jury found Mr. Gregg guilty of second-degree but not first-degree murder. The judge later referred to this as having “dodged a bullet, so to speak.”
The Sentence: 21 Years
Judge Kornmann also said in court that he found the case troubling, calling the sentencing hearing “one of those days” when he wondered whether he should have declined the offer by Tom Daschle, the former Senate majority leader from South Dakota, to nominate him for a federal judgeship.
“I see these stickers that people have on their vehicles saying, ‘Support the troops,’” Judge Kornmann said. “I don’t see much support for the troops as years go on when these people come back injured and maimed.”
Nonetheless, the judge said that Mr. Gregg did not deserve any of the “downward departures” from sentencing guidelines that his lawyers had requested in consideration of his military service, his PTSD and his crime-free record. The mandatory minimum for a federal offense involving a gun is 10 years, and Mr. Gregg’s lawyers indicated that they hoped he would be sentenced to no more than 12.
Judge Kornmann handed down a 21-year sentence.
Through a relative who works for the prominent law firm of WilmerHale, Mr. Gregg secured the company’s services; his case was taken pro bono.
In late June, Mr. Gregg’s lawyers filed a habeas corpus petition, seeing to vacate his conviction on the basis of ineffective assistance of trial counsel. Mr. Rensch, they argue, did not demonstrate that Mr. Gregg’s state of mind was heavily influenced by being “vividly aware of specific, dramatic instances of past violent acts” by his victim.
While Mr. Gregg awaits the outcome, he is locked in a federal medical prison in Rochester, Minn., where he tried to kill himself on one occasion and has been placed on suicide watch episodically. If all efforts to free him fail, he is projected to be released on July 22, 2023, a few weeks shy of his 42nd birthday.