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DEFENDING THE MILITARY VETERAN — PART TWO

Representing  a veteran can be incredibly rewarding — it gives the defense attorney the opportunity to passionately defend one of those who once defended us.

–Hunter & Else, Echoes of War, Legal Strategies for Defending the Combat Veteran in Criminal Court, NACDL CHAMPION, November 2013, page 21.

The release of DSM 5 has strengthened the possibility of using PTSD as a defense vehicle in criminal cases. Tactics can vary from a formal defense [e.g., not guilty by reason of insanity] to effective presentencing.  Experienced litigators seek to employ combat-related conditions at every stage – from reduced charges during pretrial negotiations to post-trial sentencing.  At virtually any stage, testimony of a psychologist is relevant regarding treatment programs, prognosis, and long-term interests of society.

Trials involving PTSD or traumatic brain injury  can be divided into four categories.

  1. ·   Insanity defenses, indicating complete or partial lack of culpability.
  2. ·   Enhanced self-defense approaches, based upon the soldier’s mistaken belief as to the amount of force necessary to protect himself.
  3.      Automatism — actions resulting from a reflex, sleepwalking, or conditioned stimulus .
  4. ·   Defenses which either mitigate the major charge or indicate a lesser included offense.

A defense based on PTSD differs from other mental disorder defenses. PTSD is a readily identifiable condition.  Evidence can influence the military judge or members to be sympathetic. The defense should stress  prewar conduct as a baseline demonstrating the accuser’s good soldierly behavior.  The defense lawyer should submit a history of what happened, post-event matters showing changes in the warrior, and expert psychological evaluation of the soldier’s mission and its connection to the crime.  See generally  State v. Heads, 370  So.2d  564  (La. 1979),  vacated 444 US 1008 (1980), remand 385 So.2d 230 (La.1980) . There, the defense presented a  graphic documentary film of combat experience. See also People v. Wood, 07410 (Cook Co., Ill, 5 May 1982) [successful defense of insanity].

Some defense lawyers even argue that the soldier’s combat training and psychological indoctrination have overcome his ability to control his actions.   Such an argument emphasizes how the soldier is trained to instantly react to a threat  — eliminate it, without thinking, and with overwhelming force.   See generally Murphy, Did the War Make Him Do It?,  LA Times, 20 November 2009.

Dedicated defense counsel look into antidepressant medications prescribed for war zone returnees. There is substantial evidence that these medications cause aggression and manic-like  reactions, including loss of impulse control and a tendency to violence.  See Exploring the Relationship between Medication and Suicide, Hearing before the House Committee on Veterans Affairs, 111th Congress, 2010, statement of Dr. Peter Preggan, psychologist.

Sentencing is a  valuable area for defense creativity. In  Porter v. McCollum, 130 SCt 447, 455 (2009), a capital case, the Supreme Court found it amounted to ineffective assistance of counsel for the defense attorney to present the case without mentioning combat service as a mitigating factor.

Some litigators argue that the government itself is also culpable  because it created a source of criminality – the accused now endures a service-created disorder. The argument runs something like this: granted, the government has a right to train soldiers to obey orders and overcome their inhibitions to kill.  Nevertheless, the military has  engaged in purposeful, intrusive involvement, shaping the soldier’s psyche.  Now, something went wrong — and the government must carry its share of the blame for the accused’s behavior.  Even if one cannot point to a specific wrong done by the government, it nevertheless has created the problem by over-aggressively training its soldiers for deployment.

In pre-sentencing, experienced litigators should look to the possible statutory support coming from state statutes which require such matters as PTSD  to be taken into account in sentencing.

The wise litigator will help the court appreciate the individual veteran, his social history, and what happens to veterans in combat. Service records, combat anecdotes from peers, personal hardships caused by military service, readjustment issues, service to the community, supportive friends, and evidence such as 12 step program participation can be valuable.

In conclusion, the most important point in defending a combat veteran is to present his side of things as soon as possible. Demonstrate how the individual ‘s service and service-related mental health problems are relevant to the case.   Assist the decision-maker to lean toward leniency — everything from dismissed charges to a not guilty verdict or a greatly mitigated sentence.


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