Hemmingway & Gellhorn & Tom Miller

From San Francisco Chronicle, Leah Garchik Column 6/1/12:

We watched director Kaufman on “Charlie Rose” the other night, and HBO’s showing lots of promo spots for the movie, an old-fashioned (in the best sense) cinematic love story [“Hemmingway & Gellhorn”].

And then there’s real life, which includes the story after the movie story:

Nhu Miller, journalist and press secretary to Gov. Jerry Brown when he was mayor of Oakland, is married to lawyer Tom Miller. In 1967, she e-mails, her husband was practicing law in New York when he read Martha Gellhorn‘s reporting on the effects of napalm on the Vietnamese, especially children. He quit his law practice and helped found Children’s Medical Relief International.

This was a plastic surgery hospital in Vietnam that treated young war victims. (The Committee of Responsibility was at the time bringing war victims to the United States. The U.S. government, embarrassed by this, helped fund the hospital in Vietnam, writes Miller.)

Years later, when Gellhorn heard that her pieces had so motivated Tom Miller, she “was so gratified that one person had been influenced by her writing,” says Nhu Miller, that “she corresponded with Tom for the rest of her life, often from beaches in Mozambique or Cuba. … He was like her long-lost son.

“She died knowing that it wasn’t a complete waste and that it had been worth it after all.”

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/05/31/DDK91OP2B7.DTL#ixzz1wbWK4UCr

Kim Phuoc and the photo that helped end the Vietnam War

Tom Miller was co-founder, with Dr. Arthur Barsky, of the Center for Plastic and Reconstructive Surgery in Vietnam during the war.  The Center, which continues today as a teaching hospital, treated thousands of war-injured children, including Kim Phuoc, whose photograph running naked from her napalmed village shocked the world. 40 years later, her story continues….

See: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2012/05/31/international/i132205D79.DTL

AP ‘napalm girl’ photo from Vietnam War turns 40

MARGIE MASON, Associated Press

Thursday, May 31, 2012

FILE - In this June 8, 1972 file photo, crying children, ... Phan Thi Kim Phuc plays with her son, Thomas Huy Hoang, 3... Phan Thi Kim Phuc snuggles her son Thomas, 3, as her husb... This undated file photo shows Vietnam veteran John Plumme... More…

(05-31) 20:05 PDT TRANG BANG, Vietnam (AP) —

In the picture, the girl will always be 9 years old and wailing “Too hot! Too hot!” as she runs down the road away from her burning Vietnamese village.

She will always be naked after blobs of sticky napalm melted through her clothes and layers of skin like jellied lava.

She will always be a victim without a name.

It only took a second for Associated Press photographer Huynh Cong “Nick” Ut to snap the iconic black-and-white image 40 years ago. It communicated the horrors of the Vietnam War in a way words could never describe, helping to end one of the most divisive wars in American history.

But beneath the photo lies a lesser-known story. It’s the tale of a dying child brought together by chance with a young photographer. A moment captured in the chaos of war that would serve as both her savior and her curse on a journey to understand life’s plan for her.

“I really wanted to escape from that little girl,” says Kim Phuc, now 49. “But it seems to me that the picture didn’t let me go.”


It was June 8, 1972, when Phuc heard the soldier’s scream: “We have to run out of this place! They will bomb here, and we will be dead!”

Seconds later, she saw the tails of yellow and purple smoke bombs curling around the Cao Dai temple where her family had sheltered for three days, as north and south Vietnamese forces fought for control of their village.

The little girl heard a roar overhead and twisted her neck to look up. As the South Vietnamese Skyraider plane grew fatter and louder, it swooped down toward her, dropping canisters like tumbling eggs flipping end over end.

“Ba-boom! Ba-boom!”

The ground rocked. Then the heat of a hundred furnaces exploded as orange flames spit in all directions.

Fire danced up Phuc’s left arm. The threads of her cotton clothes evaporated on contact. Trees became angry torches. Searing pain bit through skin and muscle.

“I will be ugly, and I’m not normal anymore,” she thought, as her right hand brushed furiously across her blistering arm. “People will see me in a different way.”

In shock, she sprinted down Highway 1 behind her older brother. She didn’t see the foreign journalists gathered as she ran toward them, screaming.

Then, she lost consciousness.


Ut, the 21-year-old Vietnamese photographer who took the picture, drove Phuc to a small hospital. There, he was told the child was too far gone to help. But he flashed his American press badge, demanded that doctors treat the girl and left assured that she would not be forgotten.

“I cried when I saw her running,” said Ut, whose older brother was killed on assignment with the AP in the southern Mekong Delta. “If I don’t help her — if something happened and she died — I think I’d kill myself after that.”

Back at the office in what was then U.S.-backed Saigon, he developed his film. When the image of the naked little girl emerged, everyone feared it would be rejected because of the news agency’s strict policy against nudity.

But veteran Vietnam photo editor Horst Faas took one look and knew it was a shot made to break the rules. He argued the photo’s news value far outweighed any other concerns, and he won.

A couple of days after the image shocked the world, another journalist found out the little girl had somehow survived the attack. Christopher Wain, a correspondent for the British Independent Television Network who had given Phuc water from his canteen and drizzled it down her burning back at the scene, fought to have her transferred to the American-run Barsky unit. It was the only facility in Saigon equipped to deal with her severe injuries.

“I had no idea where I was or what happened to me,” she said. “I woke up and I was in the hospital with so much pain, and then the nurses were around me. I woke up with a terrible fear.”

Thirty percent of Phuc’s tiny body was scorched raw by third-degree burns, though her face somehow remained untouched. Over time, her melted flesh began to heal.

“Every morning at 8 o’clock, the nurses put me in the burn bath to cut all my dead skin off,” she said. “I just cried and when I could not stand it any longer, I just passed out.”

After multiple skin grafts and surgeries, Phuc was finally allowed to leave, 13 months after the bombing. She had seen Ut’s photo, which by then had won the Pulitzer Prize, but she was still unaware of its reach and power.

She just wanted to go home and be a child again.


For a while, life did go somewhat back to normal. The photo was famous, but Phuc largely remained unknown except to those living in her tiny village near the Cambodian border. Ut and a few other journalists sometimes visited her, but that stopped after northern communist forces seized control of South Vietnam on April 30, 1975, ending the war.

Life under the new regime became tough. Medical treatment and painkillers were expensive and hard to find for the teenager, who still suffered extreme headaches and pain.

She worked hard and was accepted into medical school to pursue her dream of becoming a doctor. But all that ended once the new communist leaders realized the propaganda value of the `napalm girl’ in the photo.

She was forced to quit college and return to her home province, where she was trotted out to meet foreign journalists. The visits were monitored and controlled, her words scripted. She smiled and played her role, but the rage inside began to build and consume her.

“I wanted to escape that picture,” she said. “I got burned by napalm, and I became a victim of war … but growing up then, I became another kind of victim.”

She turned to Cao Dai, her Vietnamese religion, for answers. But they didn’t come.

“My heart was exactly like a black coffee cup,” she said. “I wished I died in that attack with my cousin, with my south Vietnamese soldiers. I wish I died at that time so I won’t suffer like that anymore … it was so hard for me to carry all that burden with that hatred, with that anger and bitterness.”

One day, while visiting a library, Phuc found a Bible. For the first time, she started believing her life had a plan.

Then suddenly, once again, the photo that had given her unwanted fame brought opportunity.

She traveled to West Germany in 1982 for medical care with the help of a foreign journalist. Later, Vietnam’s prime minister, also touched by her story, made arrangements for her to study in Cuba.

She was finally free from the minders and reporters hounding her at home, but her life was far from normal. Ut, then working at the AP in Los Angeles, traveled to meet her in 1989, but they never had a moment alone. There was no way for him to know she desperately wanted his help again.

“I knew in my dream that one day Uncle Ut could help me to have freedom,” said Phuc, referring to him by an affectionate Vietnamese term. “But I was in Cuba. I was really disappointed because I couldn’t contact with him. I couldn’t do anything.”


While at school, Phuc met a young Vietnamese man. She had never believed anyone would ever want her because of the ugly patchwork of scars that banded across her back and pitted her arm, but Bui Huy Toan seemed to love her more because of them.

The two decided to marry in 1992 and honeymoon in Moscow. On the flight back to Cuba, the newlyweds defected during a refueling stop in Canada. She was free.

Phuc contacted Ut to share the news, and he encouraged her to tell her story to the world. But she was done giving interviews and posing for photos.

“I have a husband and a new life and want to be normal like everyone else,” she said.

The media eventually found Phuc living near Toronto, and she decided she needed to take control of her story. A book was written in 1999 and a documentary came out, at last the way she wanted it told. She was asked to become a U.N. Goodwill Ambassador to help victims of war. She and Ut have since reunited many times to tell their story, even traveling to London to meet the Queen.

“Today, I’m so happy I helped Kim,” said Ut, who still works for AP and recently returned to Trang Bang village. “I call her my daughter.”

After four decades, Phuc, now a mother of two sons, can finally look at the picture of herself running naked and understand why it remains so powerful. It had saved her, tested her and ultimately freed her.

“Most of the people, they know my picture but there’s very few that know about my life,” she said. “I’m so thankful that … I can accept the picture as a powerful gift. Then it is my choice. Then I can work with it for peace.”






… to our clients, Parents (and their child), for recently prevailing in our special education hearing!

A copy of the decision can be found here.

Special Education – Background Information

Under the Individuals with Disabilities Education Act (IDEA), children with eligible disabilities are entitled to a “free appropriate public education” (FAPE). FAPE is provided through an Individualized Education Program (IEP).

An IEP team determines whether a child qualifies to receive special education services and what the IEP should entail. Parents are critical members of this team. In theory, the team is to collectively determine the contents of the IEP. An IEP cannot be implemented without parental consent.

Understandably, the team occasionally disagrees about specific content in the IEP. This disagreement is generally between the parents, and the district IEP members. When a stalemate occurs, and there is no chance of a consensus, it may be necessary to file a due process complaint. This leads to a due process hearing.


What is a due process hearing and how does it work?

Essentially, a due process hearing is an impartial way to determine the identification, assessment, educational placement, and appropriate services and support that your child is entitled to under the law. It leads to a decision by an administrative judge.
Parents can think of a due process complaint like a filing a lawsuit – but if you “win” at the hearing, your award is an IEP that is designed to what you considered as “appropriate”, as well as “compensatory education” (services your child should have received, but for the district’s violations).

Instead of filing a complaint through the “regular” court system, it is filed through OAH (Office of Administrative Hearings). OAH is an independent state agency that handles special education disputes. Instead of a “trial”, due process complaints are handled through a “hearing”. Hearings are similar to trials, but are not held in a courtroom, and are slightly more informal.

Once you file a complaint, the “lawsuit” begins. Before the hearing, there are three primary events:

First, there is an early resolution session. This is an informal meeting between the two parties (parents and school district) without legal representation. The hope is that the parties come to a mutual agreement at this resolution session. Our attorneys will help parents prepare for this meeting, and will be available throughout the session for consultation (via telephone).

Second, there is a mediation. This is a more formal attempt to resolve your complaint without going to a hearing. The parties, their attorneys, and an administrative judge from OAH will attend. It is generally held at the school district’s office. It is scheduled for the entire day, although it does not take the entire day in some cases. It is considered confidential settlement negotiations, meaning, anything said during the mediation cannot be used as evidence in the hearing. The judge presiding over the mediation is automatically prohibited from hearing the case, to ensure that confidential settlement communication is not brought into the hearing.

Third, there is a pre-hearing conference (PHC). This is a teleconference between the judge, who will be presiding over the hearing, and the attorneys. The purpose of the PHC is to identify the specific issues (allegations) that will be determined at the hearing, the proposed resolutions, witness lists, evidentiary issues, any pre-hearing motions, and any and all other practical matters for the hearing.

Lastly, if all else fails, a hearing is held. It is a “trial”, wherein the parties are allowed to present witnesses, evidence and arguments. The presiding judge makes a final, written decision.


Do I need an attorney?

Parents are not required to have an attorney. However, there are several reasons why having one is beneficial. Attorneys can handle all the “administrative” aspects of the case. In addition to the events outlined above, there are many things that need to be done before a case goes to a hearing, such as, PHC statements, exchanging of documentary evidence and witness lists, issuing subpoenas, and so on.

Attorneys also have the benefit of wide exposure to special education cases. This experience allows attorneys to better gauge the legal strength of a parent’s grievances, as well as the likely outcome. It’s fair to say that all the parents our attorneys have met are well intentioned, and want the best for their child. However, in many cases, there is a significant difference between what parents want (the best), and what the child is entitled to under the law (a “free appropriate public education”). In other words, this allows our attorneys to remove any bias and emotion from your child’s complaint, and strictly focus on obtaining the service your child is entitled to under special education law.

Consequently, as another benefit, attorneys can “fine tune” your grievances from a legal perspective. It has been our experience that certain grievances parents may have are not necessarily legal violations committed by the school district. On the other hand, parents may not realize a violation has occurred, because they are not as familiar with the law.


How can Miller & Washington help my child?

Our special education attorneys represent students, through their parents, in due process complaints and hearings. We have worked on many issues with IEPs, including, but not limited to: a student being determined to qualify to receive an IEP, what the LRE (least restrictive environment) is, what related and/or support services the student should receive, and whether the student should receive ESY (extended school year).

Our attorneys are here to ensure that your child receives a FAPE. We will be very honest with parents when it comes to the legal aspects of the case. We’re here to help parents obtain all the “appropriate” services and support your child is entitled to under law.


Which attorney will be handling my case?

The benefit of hiring Miller & Washington is that we have more than one attorney who focuses on special education. Our attorneys work together in the best interest of your child. Most cases are handled by Natashe Washington, even though a primary attorney is assigned to each child. The primary attorney ensures that the case is moving along, and is the direct contact for the parent at any stage of the case. However, all attorneys collectively “work” on your case, such as legal strategy.

Does my child qualify for special education?

Several parents have contacted me after their child’s school district refused to qualify their child for special education services, which raises the question – Who qualifies to receive special education services and an IEP (Individual Education Plan)?

This note addresses a particular scenario that our office has encountered.


A parent who requested an assessment for eligibility of services based on a child’s recent change in behavior (such as, a sudden decline in academics, getting into continuous trouble with the law and/or school, generalized depression, and so on) has been denied special education services.

* In our hypothetical, it is assumed that the district agreed to assess the child for eligibility, but the IEP team concluded that the child did not qualify for services. The district’s failure to respond to, or denial of, your request to assess your child for eligibility is a different legal issue, for which you may need to contact an attorney.

Common triggers for the recent change in a child’s behavior include sudden life changes, such as a divorce or death in the family. Usually, according to the parents, these children have done well, if not excelled, in school prior to the “triggering event”. In fact, parents in this scenario generally do not claim that the child has another disability.

The Law:

In California, there are two preliminary requirements that must be met for a child to receive special education services: (1) the child must meet one of the statutorily defined categories of needs; and (2) in most cases, the qualifying need must adversely affect the child’s educational performance, thus requiring special education.

Currently, the special needs that qualify for special education in California include:

(a) hearing impaired;
(b) concomitant hearing and visual impairments;
(c) language or speech impairment
(d) visual impairment;
(e) severe orthopedic impairment;
(f) limited strength, vitality or alertness, due to chronic or acute health problems;
(g) autistic-like behaviors;
(h) significantly below average general intellectual functioning;
(i) serious emotional disturbance (over a long period of time and to a marked degree); and
(j) multiple disabilities. (5 CCR 3030 (2011))

It must first be established that your child has a “qualifying need” for special education services under 5 CCR 3030. Only the qualifying needs (disabilities) listed under 5 CCR 3030 permit a child to receive special education services.

In our hypothetical, the only qualifying need, as defined by law, that may be applicable, is the “serious emotional disturbance” category, since the parent does not contend that the child has another disability (and the child was doing well before the triggering event). Therefore, it must be determined whether the new behavior qualifies the child as having a “serious emotional disturbance”.

To make that determination, the IEP team shall review any and all relevant material on the student (including assessments) which is available to the team. (5 CCR 3030 (2011)). Whether or not a child’s behavior may be considered a “serious emotional disturbance” is done on a case-by-case basis, and there is no black-and-white, clear, test. The IEP team, with a collective knowledge of the child, and trained medical physicians, who have performed the necessary assessments, are in the best position to make such a determination.

The second requirement to receive special education services is that the IEP team must conclude that the qualifying need is at the level of requiring special education services, because the need is adversely affecting the child’s educational performance. (5 CCR 3030 (2011)).

In our hypothetical, this is less of an issue in many cases, because parents generally seek an attorney after a child’s educational performance has diminished.


Special education is meant to provide students with disabilities the appropriate services and support to succeed in public schools. In other words, “special” in “special education” refers to the “needs” (disabilities) of a child, and does not refer to the “specialized” education and/or help a child may possibly receive.

To qualify for special educational services, therefore, a child must have a qualifying disability. The problem with our hypothetical is the child did not have any physical, cognitive, or psychological disability before the triggering event.

Then, the question is: now that the child has behavioral issues and his/her educational performance is suffering, does the child qualify for special education services? It depends – does the new behavior rise to the level of a qualifying disability (which may most likely be the “serious emotional disturbance” category)?


The material found herein is only intended for informational purposes. Its accuracy beyond the date of authorship cannot be guaranteed and the material will not be regularly updated or monitored for accuracy. This material should not be construed as legal advice and readers should not act upon the material without consulting with a licensed attorney. MILLER WASHINGTON & KIM, PLC, cannot be held liable for actions taken by readers in reliance of the material. Further, such reliance on the material shall not be construed as legal advice or the formation of an attorney-client relationship. Only by entering into a written attorney-client agreement, signed by the attorney, is such a relationship formed.

The Firm’s Pro Bono Service

The firm has served, pro bono, as counsel to non-profit organizations for decades.  These include:

LA PENA CULTURAL CENTER in Berkeley, serving the general and Latin American communities for over 30 years, and where Cesar Chavez celebrated his 50th birthday.

NAUTILUS INSTITUTE FOR SECURITY AND SUSTAINABILITY, which provides vital research and advice to countries in the effort to prevent nuclear proliferation and to develop a sustainable world.

SEND A PIANA TO HAVANA.  Established by Steinway piano tuner Ben Treuhaft, Send a Piana to Havana has engaged in an ongoing struggle against the U.S. blockade of Cuba managing to send hundreds of donated pianos to Cuban schools and churches, and to establish a school of piano tuning and repair at Cuba’s National Music School.

GLOBAL EXCHANGE, a San Francisco human rights organization whose “people to people” program has brought thousands of U.S. citizens to “forbidden countries” such as Afghanistan, Cuba, Iran, Libya and North Korea to learn about these countries directly from the people who live there.

GREEN CITIES FUND. Headed by Tom Miller and his wife, TT Nhu, Green Cities has established a number of innovative projects around the world, including the Vietnam Green Building Council and Parwaz, the first Afghan-run microfinance organization.  In Cambodia it is working to save the Prey Lang Forest and its indigenous Kuy people (see:  http://www.youtube.com/watch?v=NJHEiYmleVo ) and in Haiti it is helping Haitian artists who survived the earthquake through a local organization, FONDAM.  It is also developing programs in Cuba supporting social responsible entrepreneurship, permaculture and sustainability, through the Antonio Nunez Jimenez Foundation, a Cuban NGO.  The Center for Plastic and Reconstructive Surgery, established by Tom during the Vietnam War in Saigon to treat war-injured children, continues to this day to be an important treatment and teaching institution in Vietnam.

Wall Street Sabotage

Wall Street Sabotage

Senate Failure to Stop Oil Subsidies

New York Times 5/18/11

I don’t get it. On such a clear cut issue with broad public support, why couldn’t the Democrats bite the bullet and not be afraid of passing the legislation with a simple majority, instead of wimping out once again? Let the Republicans filibuster on this one. Time to draw the line!

Tom Miller

See:  http://community.nytimes.com/comments/www.nytimes.com/2011/05/18/us/politics/18congress.html?sort=highlights

Think Outside the Box


Outside the Box

Letters – SF Chronicle 5/3/11

Important first step

This is no time to gloat over the death of Osama bin Laden. He died a martyr, as he wished, and his death will no doubt inspire others to die. The best reaction to his death would be to see the event as an important step in our exit from Afghanistan and Pakistan.

Tom Miller, Oakland

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/05/02/EDR01JAOCH.DTL#ixzz1LIuLe74N