From http://hamptonroads.com/node/629974...
The Roanoke Times
© February 12, 2012
By Laurence Hammack
ROANOKE
Homeless and depressed, Sean Duvall wandered the streets of Blacksburg, each step taking him closer to suicide.
In his backpack he carried a final note to his family and a crude, homemade gun fashioned from a piece of steel pipe, a shotgun shell and a nail rigged as a firing pin. For seven days, he contemplated killing himself.
Then, on the night of June 8, 2011, Duvall turned to the country he had served.
A veteran of the U.S. Navy, Duvall called a toll-free crisis line the Department of Veterans Affairs offers as a confidential resource for troubled veterans.
Duvall was looking for help. Instead, he found himself in federal court, charged with possessing a destructive device and three related felonies that could send him to prison for 40 years.
For the government to promise a veteran help through a confidential crisis line, then betray that trust by using his own words to convict him, is more than just unfair, Duvall's attorney argues.
"This is dishonorable," federal public defender Randy Cargill wrote in court papers. "It is wrong; it is unfair; it shocks the conscience."
In a motion to dismiss the charges, which describes the events of June 8, Cargill argues that Duvall's treatment amounts to a violation of his due process rights under the Fifth Amendment.
Prosecutors say whatever confidentiality existed between Duvall and the counselor who took his call ended when the 45-year-old veteran announced he was armed and suicidal.
"Confidentiality is not absolute," Assistant U.S. Attorney Don Wolthuis wrote in a response to Cargill's motion to have the charges thrown out.
A judge will consider the request at a hearing set for Tuesday in U.S. District Court in Roanoke.
'His lowest moment'
Sean Duvall grew up in Pulaski County, the product of a military family. His father was a Marine who fought in Vietnam; his mother served in the Navy.
At the age of 25, he enlisted in the Navy, serving two tours on a destroyer in the Persian Gulf and off the coast of Somalia as tensions lingered from the Persian Gulf War.
After his honorable discharge in 1995, Duvall returned to Virginia and found work at a Roanoke steel plant. Later, he took a job as a cook at Virginia Tech.
Because the job was part time, Duvall was forced out of work in May 2011 when he met his maximum number of hours for the year. Unable to pay his rent, he was evicted from his Blacksburg apartment.
Duvall could have applied for unemployment benefits. He could have asked his mother or ex-wife for help. He could have gone to a homeless shelter. He did none of those things.
"As Mr. Duvall describes it, he was both too depressed and 'too proud,'" his lawyer later wrote in court papers, which detail his personal and military history. (Duvall declined through his attorney to be interviewed, and Cargill said he could not comment on the case.)
On June 1, Duvall left his apartment with a few belongings in his backpack. One of them was the makeshift gun, Cargill wrote, which he had assembled for the sole purpose of killing himself.
Duvall spent the next week walking aimlessly and sleeping on the ground, sinking deeper into a depression that began during his military service and worsened with the 2008 death of his father.
At an earlier visit to the VA Medical Center in Salem — where doctors believed Duvall might be suffering from post-traumatic stress disorder — he was encouraged to call the national crisis line for veterans.
Assuming that what he said would be kept in confidence, Duvall decided to seek help at what his lawyer would later call "his lowest moment" — the time when his suicidal urges were the strongest.
Duvall pulled out his cellphone and dialed 800-273-8255.
Privacy vs. public danger
Duvall told the counselor who answered his call in upstate New York that he had lost everything, according to court records.
He talked about walking the streets for days, away from everything he owned. He described his gun and what he planned to do next, saying he was ready to give up.
At that point, the counselor promised to send help and asked Duvall for his location.
Looking around, Duvall spotted a blue light from a Virginia Tech police phone in the parking lot of the school's international student center on Clay Street. He waited there for a police officer to arrive.
The officer drove Duvall to a psychiatric hospital, where he spent several days. Duvall was released to the care of New River Valley Community Services. With the help of counseling and medication, his mental state improved and he later found a new job, according to court records.
Nine days after he made his call for help, Duvall learned of its consequences.
He was charged on June17 with carrying a concealed weapon, a misdemeanor under state law. That charge was later dropped to allow a federal investigation.
In October, a grand jury in U.S. District Court indicted Duvall on four felony charges: possessing a destructive device, making a destructive device, possessing an unregistered destructive device and possessing a destructive device not identified by a serial number. Each charge carries up to 10 years in prison.
"The charges against Mr. Duvall should be dismissed for the most basic reason: It is wrong to break a promise," Cargill wrote in a motion filed earlier this month.
"It is wrong to tell a man that what he says will be kept in confidence †and then use statements and evidence given in reliance of that promise to charge the man."
A spokeswoman for the Department of Veterans Affairs said a key goal of the crisis line is to respect a caller's privacy. Counselors are trained to explore options to calling the police, Laurie Tranter said.
However, federal laws allow the crisis line to "disclose information that is otherwise protected in compelling circumstances," Tranter said. Those circumstances include cases of serious and imminent threats to the safety of the veteran or others.
"Duvall was suicidal and had a homemade firearm," Wolthuis, the federal prosecutor, wrote in a motion arguing that the counselor's decision to call police was proper. Further, he argued, Duvall waived any promise of confidentiality when he agreed to wait for a police officer to arrive.
"The United States saved Duvall's life, rather than shocking anyone's conscience by forcing him to do anything against his will," Wolthuis wrote.
Weapons of destruction
The federal definition of a destructive device puts machine guns and hand grenades in the same category as the contraption that Duvall carried in his backpack.
But there are limits to such a homemade weapon, sometimes referred to as a zip gun.
For the weapon to work, Duvall would have to position himself in front of its 8-inch barrel and strike the other end, containing the shotgun shell and firing pin, against a wall or other hard surface.
"The device posed absolutely no threat to anyone except the person who stood directly in front of the opening while simultaneously causing it to discharge," Cargill wrote in his motion to dismiss the charge.
Federal prosecutors say an analysis of the weapon found it to be a destructive device — and that possession of such a weapon should not be protected by a counselor-caller privilege.
"It cannot be the rule of law that crimes detected out of a wellness check are immune from prosecution," Wolthuis wrote.
Taking Duvall's argument to the extreme, he argued, would be to say that police could not file charges if they responded to a veteran's plea for help and discovered he had killed his wife and children.
A chilling effect?
While acknowledging there can be a fine line between helping veterans and protecting them and others from harm, one mental health advocate said she was disturbed by the way Duvall's case was handled.
"It's just really disappointing," said Mira Signer, executive director of the Virginia chapter of the National Alliance on Mental Illness.
Signer said filing criminal charges against Duvall runs counter to the very notion of a crisis line: to help a mentally ill person get treatment.
"That person is not going to be any better off after they have had four felonies slapped on them," she said.
With more service personnel returning from Iraq and Afghanistan — often bearing emotional scars that can be harder to treat than a bullet wound — the military is expanding its efforts at outreach and counseling.
The Department of Veterans Affairs created the crisis line in 2007, in part to curb suicides by veterans, which by one estimate number 18 a day in the United States.
More than 240,000 calls have been made to the line, and about 20,000 have resulted in some form of rescue. Only a small percentage of the callers were in imminent danger of hurting themselves or others, Tranter said.
While authorities may need to get involved in those cases, mental advocates say, they don't have to seek convictions if an appropriate treatment option is available.
In Southwest Virginia, for example, a new Veterans Treatment Court allows those charged with federal crimes to get court-supervised help with substance abuse, mental illness or whatever lies at the root of their legal troubles. For reasons that were unclear last week, prosecutors have not extended that option to Duvall.
"The terrible part of this is, for whatever reason, they saw fit to turn this into a criminal matter," Signer said. Could that reason be that Duvall made his call for help near the Tech campus, where heightened vigilance remains from the 2007 mass shootings by a mentally ill killer?
"I don't think that's a stretch of the imagination," Signer said.
Still, Signer worries that Duvall's experience might discourage others with mental illness from calling a crisis line.
"That's a major barrier for people reaching out for help," she said. "They are thinking, 'How is this going to come back to haunt me?'"
The Roanoke Times
© February 12, 2012
By Laurence Hammack
ROANOKE
Homeless and depressed, Sean Duvall wandered the streets of Blacksburg, each step taking him closer to suicide.
In his backpack he carried a final note to his family and a crude, homemade gun fashioned from a piece of steel pipe, a shotgun shell and a nail rigged as a firing pin. For seven days, he contemplated killing himself.
Then, on the night of June 8, 2011, Duvall turned to the country he had served.
A veteran of the U.S. Navy, Duvall called a toll-free crisis line the Department of Veterans Affairs offers as a confidential resource for troubled veterans.
Duvall was looking for help. Instead, he found himself in federal court, charged with possessing a destructive device and three related felonies that could send him to prison for 40 years.
For the government to promise a veteran help through a confidential crisis line, then betray that trust by using his own words to convict him, is more than just unfair, Duvall's attorney argues.
"This is dishonorable," federal public defender Randy Cargill wrote in court papers. "It is wrong; it is unfair; it shocks the conscience."
In a motion to dismiss the charges, which describes the events of June 8, Cargill argues that Duvall's treatment amounts to a violation of his due process rights under the Fifth Amendment.
Prosecutors say whatever confidentiality existed between Duvall and the counselor who took his call ended when the 45-year-old veteran announced he was armed and suicidal.
"Confidentiality is not absolute," Assistant U.S. Attorney Don Wolthuis wrote in a response to Cargill's motion to have the charges thrown out.
A judge will consider the request at a hearing set for Tuesday in U.S. District Court in Roanoke.
'His lowest moment'
Sean Duvall grew up in Pulaski County, the product of a military family. His father was a Marine who fought in Vietnam; his mother served in the Navy.
At the age of 25, he enlisted in the Navy, serving two tours on a destroyer in the Persian Gulf and off the coast of Somalia as tensions lingered from the Persian Gulf War.
After his honorable discharge in 1995, Duvall returned to Virginia and found work at a Roanoke steel plant. Later, he took a job as a cook at Virginia Tech.
Because the job was part time, Duvall was forced out of work in May 2011 when he met his maximum number of hours for the year. Unable to pay his rent, he was evicted from his Blacksburg apartment.
Duvall could have applied for unemployment benefits. He could have asked his mother or ex-wife for help. He could have gone to a homeless shelter. He did none of those things.
"As Mr. Duvall describes it, he was both too depressed and 'too proud,'" his lawyer later wrote in court papers, which detail his personal and military history. (Duvall declined through his attorney to be interviewed, and Cargill said he could not comment on the case.)
On June 1, Duvall left his apartment with a few belongings in his backpack. One of them was the makeshift gun, Cargill wrote, which he had assembled for the sole purpose of killing himself.
Duvall spent the next week walking aimlessly and sleeping on the ground, sinking deeper into a depression that began during his military service and worsened with the 2008 death of his father.
At an earlier visit to the VA Medical Center in Salem — where doctors believed Duvall might be suffering from post-traumatic stress disorder — he was encouraged to call the national crisis line for veterans.
Assuming that what he said would be kept in confidence, Duvall decided to seek help at what his lawyer would later call "his lowest moment" — the time when his suicidal urges were the strongest.
Duvall pulled out his cellphone and dialed 800-273-8255.
Privacy vs. public danger
Duvall told the counselor who answered his call in upstate New York that he had lost everything, according to court records.
He talked about walking the streets for days, away from everything he owned. He described his gun and what he planned to do next, saying he was ready to give up.
At that point, the counselor promised to send help and asked Duvall for his location.
Looking around, Duvall spotted a blue light from a Virginia Tech police phone in the parking lot of the school's international student center on Clay Street. He waited there for a police officer to arrive.
The officer drove Duvall to a psychiatric hospital, where he spent several days. Duvall was released to the care of New River Valley Community Services. With the help of counseling and medication, his mental state improved and he later found a new job, according to court records.
Nine days after he made his call for help, Duvall learned of its consequences.
He was charged on June17 with carrying a concealed weapon, a misdemeanor under state law. That charge was later dropped to allow a federal investigation.
In October, a grand jury in U.S. District Court indicted Duvall on four felony charges: possessing a destructive device, making a destructive device, possessing an unregistered destructive device and possessing a destructive device not identified by a serial number. Each charge carries up to 10 years in prison.
"The charges against Mr. Duvall should be dismissed for the most basic reason: It is wrong to break a promise," Cargill wrote in a motion filed earlier this month.
"It is wrong to tell a man that what he says will be kept in confidence †and then use statements and evidence given in reliance of that promise to charge the man."
A spokeswoman for the Department of Veterans Affairs said a key goal of the crisis line is to respect a caller's privacy. Counselors are trained to explore options to calling the police, Laurie Tranter said.
However, federal laws allow the crisis line to "disclose information that is otherwise protected in compelling circumstances," Tranter said. Those circumstances include cases of serious and imminent threats to the safety of the veteran or others.
"Duvall was suicidal and had a homemade firearm," Wolthuis, the federal prosecutor, wrote in a motion arguing that the counselor's decision to call police was proper. Further, he argued, Duvall waived any promise of confidentiality when he agreed to wait for a police officer to arrive.
"The United States saved Duvall's life, rather than shocking anyone's conscience by forcing him to do anything against his will," Wolthuis wrote.
Weapons of destruction
The federal definition of a destructive device puts machine guns and hand grenades in the same category as the contraption that Duvall carried in his backpack.
But there are limits to such a homemade weapon, sometimes referred to as a zip gun.
For the weapon to work, Duvall would have to position himself in front of its 8-inch barrel and strike the other end, containing the shotgun shell and firing pin, against a wall or other hard surface.
"The device posed absolutely no threat to anyone except the person who stood directly in front of the opening while simultaneously causing it to discharge," Cargill wrote in his motion to dismiss the charge.
Federal prosecutors say an analysis of the weapon found it to be a destructive device — and that possession of such a weapon should not be protected by a counselor-caller privilege.
"It cannot be the rule of law that crimes detected out of a wellness check are immune from prosecution," Wolthuis wrote.
Taking Duvall's argument to the extreme, he argued, would be to say that police could not file charges if they responded to a veteran's plea for help and discovered he had killed his wife and children.
A chilling effect?
While acknowledging there can be a fine line between helping veterans and protecting them and others from harm, one mental health advocate said she was disturbed by the way Duvall's case was handled.
"It's just really disappointing," said Mira Signer, executive director of the Virginia chapter of the National Alliance on Mental Illness.
Signer said filing criminal charges against Duvall runs counter to the very notion of a crisis line: to help a mentally ill person get treatment.
"That person is not going to be any better off after they have had four felonies slapped on them," she said.
With more service personnel returning from Iraq and Afghanistan — often bearing emotional scars that can be harder to treat than a bullet wound — the military is expanding its efforts at outreach and counseling.
The Department of Veterans Affairs created the crisis line in 2007, in part to curb suicides by veterans, which by one estimate number 18 a day in the United States.
More than 240,000 calls have been made to the line, and about 20,000 have resulted in some form of rescue. Only a small percentage of the callers were in imminent danger of hurting themselves or others, Tranter said.
While authorities may need to get involved in those cases, mental advocates say, they don't have to seek convictions if an appropriate treatment option is available.
In Southwest Virginia, for example, a new Veterans Treatment Court allows those charged with federal crimes to get court-supervised help with substance abuse, mental illness or whatever lies at the root of their legal troubles. For reasons that were unclear last week, prosecutors have not extended that option to Duvall.
"The terrible part of this is, for whatever reason, they saw fit to turn this into a criminal matter," Signer said. Could that reason be that Duvall made his call for help near the Tech campus, where heightened vigilance remains from the 2007 mass shootings by a mentally ill killer?
"I don't think that's a stretch of the imagination," Signer said.
Still, Signer worries that Duvall's experience might discourage others with mental illness from calling a crisis line.
"That's a major barrier for people reaching out for help," she said. "They are thinking, 'How is this going to come back to haunt me?'"
