Criminal Defense Lawyers for Veterans with PTSD

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This photograph was originally taken by grayloch./Jim H. and the original photo can be found here.

The Three Soldiers, Vietnam Veterans Memorial, Washington D.C.

If you are a military veteran suffering from post-traumatic stress disorder (PTSD), and are accused of committing a crime, you might have a legal defense based upon PTSD.

As former cops and prosecutors - and now as defense attorneys - our California Criminal Defense Attorneys are in a unique position to help you.  We value your service and know the most cutting edge arguments to support a defense of PTSD.  We can help you get the treatment you need to move on with your life.1

In this article, we give an overview about the law relating to post-traumatic stress disorder in California criminal cases:

1. What is post-traumatic stress disorder
(PTSD)?
2. Is military-related PTSD a legal defense
in court?

2.1. PTSD and the insanity defense

2.2. PTSD as mitigation evidence

2.3. California Penal Code Section 1170.9

3. Does California have special
"veteran's courts"?

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.

1. What is post-traumatic stress disorder (PTSD)?
Img-ptsd-casings

This photograph was originally taken by Flickr user Joint Base Elmendorf-Richardson/Arctic Warrior and the original photo can
be found here.

Combat stressors that can lead to PTSD include seeing dead bodies, being shot at, being ambushed, receiving rocket fire and knowing someone killed or seriously injured, according to the United States Department of Veteran Affairs, National Center for PTSD.

Post-traumatic stress disorder (PTSD) is a condition experienced by people who have been through a very traumatic experience (like wartime combat) and have difficulty coping with ordinary life as a result of that experience.

When people suffering from PTSD get "triggered" by events or circumstances that remind them of the initial trauma, they can "snap" and act in unpredictable and anti-social ways.  Combat and military veterans are among people who suffer from PTSD because of the stressful and horrific situations they have experienced.

The American Psychiatric Association classifies PTSD as an "anxiety disorder" in the Diagnostic and Statistical Manual of Mental Health (DSM-IV).2

The Mayo Clinic website defines PTSD as: "a mental health condition that's triggered by a terrifying event.  Symptoms may include flashbacks, nightmares and severe anxiety, as well as uncontrollable thoughts about the event."

William Brown, a Criminal Justice professor and former combat veteran identifies six factors as common to veterans suffering from PTSD:

  1. feelings of guilt that often turn to self-punishment,
  2. feeling as though they are scapegoats and/or victims of betrayal by their country and government,
  3. experiencing rage aimed at discriminate and indiscriminate targets,
  4. psychic numbing or emotional shutdown,
  5. alienation from themselves and others, and
  6. doubt in their ability to love or trust others.3

Brown describes post-traumatic stress disorder in some cases as operating like a "light switch," causing even seemingly benign references to news and movie images to throw a veteran into an unstable emotional state:

One noteworthy problem associated with PTSD is the fact that it is often like a light switch.  At times it seems as though the veteran is well on the way to resolving her or his problem, but a single incident or event can take the individual back to the point of origin.  In most instances, the veteran does not perpetuate the incident or event that ignites PTSD symptoms.  Current Images and reports from Afghanistan and Iraq serves as a trigger for many older veterans (WWII, Korea, Vietnam, Gulf War I) to experience recurring PTSD symptoms from their own combat experiences...Following the release of the film "Saving Private Ryan," telephone calls from World War II veterans flooded the suicide toll-free phone banks at the [National Veterans Foundation], revealing that the first few minutes of the film brought back horrific memories of their previous combat experiences.4
2. Is military-related PTSD a legal defense in court?

There are several ways that PTSD might be useful to a defendant in a criminal matter.  In an appropriate case, a defense lawyer may be able to raise PTSD as an affirmative defense falling within the insanity defense.

PTSD also may be raised as evidence of mitigation (although not complete defense), which can help a defendant receive more lenient treatment.  A special statute in the California Penal Code allows judges to sentence certain military veterans suffering from PTSD to treatment instead of jail or prison.

2.1. PTSD and the insanity defense

As we discuss in our related article on the California Insanity Defense, a defendant can plead "not guilty by reason of insanity" if that defendant committed the crime while he or she was "legally insane" - meaning during a time when the defendant did not understand the nature of the act or could not distinguish between right and wrong.

If the defendant proves the California insanity defense by a preponderance of the evidence, the defendant will be acquitted and committed to a mental health treatment facility instead of prison.

It is very difficult to win a trial based on the California insanity defense, regardless of the circumstances and whether it's based on PTSD or something else.  However, in a 2008 case from Northern California an army veteran suffering from PTSD was found not guilty by reason of insanity for committing an armed robbery of a pharmacy.

The veteran's defense alleged that he was traumatized from his service in Bosnia (guarding a mass grave) and Honduras (shooting a teenager in a drug raid).5 He became addicted to painkillers following an injury and was trying to secure narcotics in an effort to self-medicate when he committed the robbery.

2.2. PTSD as mitigation evidence

Even if PTSD can't be used as an affirmative defense in the insanity context, it might be useful as mitigation evidence...to show that because of emotional trauma your behavior did not rise to as a high level of culpability as it otherwise would have.

If your defense attorney can show that you are suffering from PTSD and it was that traumatic condition (and not just "bad" behavior) that led to the crime the judge might be inclined to sentence you to less time in jail or prison, or to probation and treatment in lieu of custody.6

In a 2009 case involving a Korean War veteran convicted of capital murder, the United States Supreme Court highlighted the potential significance of such mitigation evidence to a person's defense.  The Court found:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as [the defendant] did.  Moreover, the relevance of [the defendant's] extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on [the defendant].7

2.3.  California Penal Code Section 1170.9

California has a specific statute designed for veterans suffering from post-traumatic stress disorder who become involved in criminal activity.8

California Penal Code Section 1170.9 is an alternative sentencing scheme that allows judges to sentence military veterans to treatment instead of prison or jail in cases where those veterans committed their crimes as result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military.9

The statute used to be limited to combat veterans, but it was amended in 2010 to eliminate the "combat theater" requirement.10

The way Penal Code Section 1170.9 works is that if a defendant alleges that he or she falls within it, the court must hold a hearing to determine eligibility.  Then, if the judge determines that the defendant is eligible for alternative sentencing, the judge can sentence the veteran-defendant to treatment instead of jail or prison for a period not to exceed that which the defendant would have served in custody.

To be eligible for California Penal Code Section 1170.9, the defendant must plead guilty to the crime and must be otherwise eligible for probation .

Because of the latter requirement, PC 1170.9 is not available in certain kinds of cases.  As we discuss in our article California Probation in Criminal Cases, probation is not available in cases involving violent felony crimes in California and serious felony crimes in California that are committed while the defendant is on felony probation.11

Further, there is a strong presumption against granting probation in other kinds of cases, such as those involving a deadly weapon or the infliction of
great bodily injury (Penal Code 12022.7) .12

Even if a defendant is technically eligible for probation, PC 1170.9 alternative sentencing is not required unless the judge actually grants probation.

So, for example, the California Court of Appeals recently upheld a trial judge's rejection of PC 1170.9 alternative sentencing for a marine who served in Iraq and was later involved in a drunk driving case that left a man dead.

In that case, the marine was charged with California DUI Second Degree Murder "Watson Murder" as well as California Vehicle Code 23153 vc DUI
causing injury
.13

3. Does California have special "veteran's courts"?

Given the large number of veterans returning from the Middle East and the growing awareness of their (and all veterans') unique vulnerabilities in the areas of emotional scarring, substance abuse and homelessness, in the past several years judicial systems across the country have instituted special "veteran's courts."

According to the Judicial Branch of California Courts website:

There are 23,440,000 veterans in the United States and approximately 1.7 million veterans of Iraq and Afghanistan.  The U.S. Department of Veterans Affairs estimates that as many as one third of the adult homeless population has served in the military and that at any given time there are as many as 130,000 homeless veterans... A 2000 Bureau of Justice Statistics Report found that 81% of all justice involved veterans had a substance abuse problem prior to incarceration, 35% were identified as suffering from alcohol dependency, 23% were homeless at some point in the prior year, and 25% were identified as mentally ill."
Img-ptsd-homeless

This photograph was originally taken by Flickr user born1945/Tom Brandt and the original photo can be found here.

A quarter of all homeless people living on the streets of the United States are military veterans, according to a 2007 Associated Press article Out of Uniform and on the Street.  Post-traumatic stress disorder contributes to the problem among veterans because it can interfere with a veteran's ability to cope with stresses associated with holding down a job and maintaining personal relationships.  Other mental health and substance abuse problems, together with a lack of resources and a difficult economy, add to the problem.

The first veterans court was created in Buffalo, New York in 2008.  According to a 2011 PTSD Research Quarterly Update, there are now 50 veterans courts nationwide.14

Several California counties have veterans courts, including Orange, San Bernardino, Ventura and Los Angeles.  Generally these courts take only nonviolent offenders but the Orange County Combat Veteran's Court (the first such court in the state) takes some violent offenders.

Veterans courts are designed along the lines of other "collaborative courts" like drug court and homeless court in that they strive to solve underlying problems like substance abuse and mental health issues that lead to crime in the first place.

Once a veteran is accepted into the program, he or she will have a team of participants - including the judge, prosecutor, criminal defense attorney, and Veterans Administration caseworker - collaborate on designing and helping the veteran through a comprehensive treatment plan.

Upon successful completion program, the charges are often dismissed...but more importantly...the veteran-defendant will hopefully have the coping mechanisms and support systems in place to positively and productively reintegrate into mainstream society.

Our California Criminal Defense Attorneys
Can Help...

If you are a veteran who has been accused of a crime, we invite you to call us at Shouse Law Group for a consultation.

We also invite you to review our related articles on the California Insanity Defense, Great Bodily Injury (Penal Code 12022.7), California Probation in Criminal Cases, Violent Felony Crimes in California, Serious Felony Crimes in California, California DUI Second Degree Murder "Watson Murder," and California Vehicle Code 23153 vc drunk driving causing injury.

Img-ptsd-better

This photograph was originally taken by Flickr user eddie spaghetti and the original photo can be found here.

If you're a military veteran suffering from PTSD, help is available.  You can get treatment for your symptoms.  You can overcome the terrible memories and put your family and life back together.  If the worst has happened and you've been accused of a crime, you might have a defense based on your PTSD.  Our California Criminal Defense Attorneys can help you figure out your legal options.  We want to help you get past these dark nights and on the road to brighter days.

Call us for help
Img-call-for-help

If you or loved one is in need of help using PTSD as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Helpful links:

US Department of Veteran Affairs National Center for PTSD

Justice for Vets

Military Veterans PTSD Reference Manual

California Courts Judicial Branch Veterans Courts

Orange County Superior Courts Collaborative Courts


1 Our California Crime Victim Advocate Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2 See AllPsych Online, Anxiety Disorders.

3Another Emerging "Storm": Iraq and Afghanistan Veterans with PTSD in The Criminal Justice System, Justice Policy Journal Vol. 5, No., 2, Fall 2008, by William Brown at p.4.

4 Id at 12.

5New Courts on the Block:  Specialized Criminal Courts for Veterans in the United States, Appeal Volume 15: 39, by Melissa Pratt at p. 44 ("However, Binkley's story is an exception to the rule.  In recent years, the overall use of the insanity defense has decreased significantly, and its successful use has also diminished.  The rise of the concept of the 'moral agent,' the absence of a uniform application, and increased public disapproval of the insanity defense, have created a legal environment that is disapproving of defenses based on mental illnesses.  Thus, most veteran defendants will likely not be able to present a successful insanity defense.")

6 See California Rule of Court Rule 4.423. Circumstances in mitigation:  "Circumstances in mitigation include factors relating to the crime and factors relating to the defendant.  (a) Factors relating to the crime:  Factors relating to the crime include that: (1) The defendant was a passive participant or played a minor role in the crime; (2) The victim was an initiator of, willing participant in, or aggressor or provoker of the incident; (3) The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur; (4) The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense; (5) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime; (6) The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim; (7) The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal; (8) The defendant was motivated by a desire to provide necessities for his or her family or self; and (9) The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense.  (b) Factors relating to the defendant:  Factors relating to the defendant include that:  (1) The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes; (2) The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime; (3) The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process; (4) The defendant is ineligible for probation and but for that ineligibility would have been granted probation; (5) The defendant made restitution to the victim; and (6) The defendant's prior performance on probation or parole was satisfactory."

7Porter v. McCollum, 558 U. S. ____ (2009).

8 See legislative history of A.B. 2586 (2006):  "SECTION 1.  The Legislature finds and declares all of the following:  (a) Post-traumatic stress disorder (PTSD) is an inclusive title for a complex of mental disorders and conditions caused by exposure to severe, violent, and threatening situations like those experienced by military personnel in combat.  (b) Once brushed aside as shell shock or combat fatigue, PTSD was finally recognized as an illness by the American Psychiatric Association in 1980 based upon the psychiatric experience of veterans of the Vietnam war.  (c) During and after the Vietnam war, a significant number of our returning combat veterans were incarcerated because of behavior caused or exacerbated by their misunderstood and untreated PTSD.  (d) In 1982, 10 years after the Vietnam war, the California Legislature passed Section 1170.9 of the Penal Code.  That section is not sufficient to cover returning Iraq and Afghanistan veterans.  (e) Therefore, it is the intent of the Legislature to extend the opportunity for alternative sentencing to all combat veterans, regardless of where or when those veterans served our country, when those veterans are found by the court to be suffering from PTSD.  (f) It is not the intent of the Legislature to expand probation eligibility for veterans who commit crimes pursuant to these provisions.  (g) It is the intent of the Legislature to ensure that judges are aware that a criminal defendant is a combat veteran with these conditions at the time of sentencing and to be aware of any treatment programs that exist and are appropriate for the person at the time of sentencing if a sentence of probation is appropriate."

9 California Penal Code Section 1170.9 provides:  "(a) In the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that he or she committed the offense as a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service.  The court may request, through existing resources, an assessment to aid in that determination.  (b) If the court concludes that a defendant convicted of a criminal offense is a person described in subdivision (a), and if the defendant is otherwise eligible for probation and the court places the defendant on probation, the court may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that which the defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate treatment program exists.  (c) If a referral is made to the county mental health authority, the county shall be obligated to provide mental health treatment services only to the extent that resources are available for that purpose, as described in paragraph (5) of subdivision (b) of Section 5600.3 of the Welfare and Institutions Code. If mental health treatment services are ordered by the court, the county mental health agency shall coordinate appropriate referral of the defendant to the county veterans service officer, as described in paragraph (5) of subdivision (b) of Section 5600.3 of the Welfare and Institutions Code.  The county mental health agency shall not be responsible for providing services outside its traditional scope of services.  An order shall be made referring a defendant to a county mental health agency only if that agency has agreed to accept responsibility for the treatment of the defendant.  (d) When determining the "needs of the defendant," for purposes of Section 1202.7, the court shall consider the fact that the defendant is a person described in subdivision (a) in assessing whether the defendant should be placed on probation and ordered into a federal or community-based treatment service program with a demonstrated history of specializing in the treatment of mental health problems, including substance abuse, post-traumatic stress disorder, traumatic brain injury, military sexual trauma, and other related mental health problems.  (e) A defendant granted probation under this section and committed to a residential treatment program shall earn sentence credits for the actual time the defendant serves in residential treatment.  (f) The court, in making an order under this section to commit a defendant to an established treatment program, shall give preference to a treatment program that has a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service, including, but not limited to, programs operated by the United States Department of Defense or the United States Veterans Administration.  (g) The court and the assigned treatment program may collaborate with the Department of Veterans Affairs and the United States Veterans Administration to maximize benefits and services provided to the veteran."

10 See legislative history of A.B. 674 (2010):  "The bill would eliminate the requirement that the offense be committed as a result of problems stemming from service in a combat theater."

11 California Penal Code Section 1203(k) provides:  "Probation shall not be granted to, nor shall the execution of, or imposition of sentence be suspended for, any person who is convicted of a violent felony, as defined in subdivision (c) of Section 667.5, or a serious felony, as defined in subdivision (c) of Section 1192.7, and who was on probation for a felony offense at the time of the commission of the new felony offense."

12 California Penal Code Section 1203(e) provides:  "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:  (1) Unless the person had a lawful right to carry a deadly weapon, other than a firearm, at the time of the perpetration of the crime or his or her arrest, any person who has been convicted of arson, robbery, carjacking, burglary, burglary with explosives, rape with force or violence, torture, aggravated mayhem, murder, attempt to commit murder, trainwrecking, kidnapping, escape from the state prison, or a conspiracy to commit one or more of those crimes and who was armed with the weapon at either of those times. (2) Any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted. (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted.  (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.  (5) Unless the person has never been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony, any person who has been convicted of burglary with explosives, rape with force or violence, torture, aggravated mayhem, murder, attempt to commit murder, trainwrecking, extortion, kidnapping, escape from the state prison, a violation of Section 286, 288, 288a, or 288.5, or a conspiracy to commit one or more of those crimes. (6) Any person who has been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony, if he or she committed any of the following acts: (A) Unless the person had a lawful right to carry a deadly weapon at the time of the perpetration of the previous crime or his or her arrest for the previous crime, he or she was armed with a weapon at either of those times. (B) The person used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the previous crime. (C) The person willfully inflicted great bodily injury or torture in the perpetration of the previous crime. (7) Any public official or peace officer of this state or any city, county, or other political subdivision who, in the discharge of the duties of his or her public office or employment, accepted or gave or offered to accept or give any bribe, embezzled public money, or was guilty of extortion. (8) Any person who knowingly furnishes or gives away phencyclidine.  (9) Any person who intentionally inflicted great bodily injury in the commission of arson under subdivision (a) of Section 451 or who intentionally set fire to, burned, or caused the burning of, an inhabited structure or inhabited property in violation of subdivision (b) of Section 451.  (10) Any person who, in the commission of a felony, inflicts great bodily injury or causes the death of a human being by the discharge of a firearm from or at an occupied motor vehicle proceeding on a public street or highway. (11) Any person who possesses a short-barreled rifle or a short-barreled shotgun under Section 16590, a machinegun under Section 12220, or a silencer under Section 12520. (12) Any person who is convicted of violating Section 8101 of the Welfare and Institutions Code. (13) Any person who is described in paragraph (2) or (3) of subdivision (g) of Section 12072."

13People v. Ferguson, 194 Cal.App.4th 1070, 1093 (2011) ("Alternative sentencing under section 1170.9 is not triggered unless the court actually decides to grant probation.  In amending the statute in 2006 to include PTSD and to expand its coverage from Vietnam combat veterans to all combat veterans, the Legislature made clear its intent was not to expand probation eligibility, but only 'to ensure that judges are aware that a criminal defendant is a combat veteran with these conditions at the time of sentencing and to be aware of any treatment programs that exist and are appropriate for the person at the time of sentencing if a sentence of probation is appropriate.' (Stats.2006, ch. 788 (A.B.2586), § 1(g), italics added.)  It is clear from the record that even if Ferguson were statutorily eligible for probation, the trial court would not grant probation as it was not appropriate in view of the severity of the crimes and the input it had received from the victims' family, friends, and associates.")

14 National Center for PTSD, PTSD Research Quarterly, PTSD and the Law:  An Update, by Jim McGuire and Sean Clark, Vol. 22, No. 1, 2011.

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