I’m in my office and an Iraqi war Marine Veteran, a twenty something year old, is sitting across from my oak desk. He is a modest and clean-cut baby faced young man. I’m reviewing his constitutional rights, (prior to entering his change of plea in court), but he is slow to respond to my few routine questions. So, I ask him again – delay. Finally, he turns his head, so I have a side view. To my surprise, I see his ear was freshly sewn back on.

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That explains his silence. he lost his hearing. I got up and walked around my desk and sat down next to him, then softly said….anything else I ought to know? He said ….well…..and pulled up his pants leg which exposed a mangled leg – the result of shrapnel wounds when a rocket propelled grenade (RPG) struck his humvee. I even saw a bloody photo of him sprawled out next to his burning humvee – taken by a buddy. In the office he looked ok at first glance, but wasn’t. He was what I call the “walking wounded”, and his scars ran deep into his mind too, because he’s a “Post Traumatic Stress Disorder” Victim (PTSD). * 2

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Over the last few years, not only am I seeing the occasional Vietnam veteran with PTSD – Desert Storm and Iraqi veterans are now commonplace. Clean cut kids – are now damaged goods. I don’t like it either. It’s disturbing.

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I struggle to convince the system (Judges, Prosecutors, and Probation Department) that these heroes deserve a break – as juries rarely recognize their “mental defenses”. Most jurors can’t relate to them because they haven’t had the same experiences, or just don’t want to believe it could happen to them or their loved ones. Juror denial is real. I’ve attached a Voir Dire questionnaire to help uncover juror bias. * 3

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To a degree, injury victims similarly suffer. They are afraid to get back on the road. So, what’s a lawyer to do? I did what any of you would do, I deeply listened to: clients, knowledgeable veterans, attended psychological society meetings by mental health professionals and researched PTSD. I’m not claiming to be an expert by any means, but I’m more aware. Isn’t it time we develop a dialogue on this important subject?

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I’ve found two books helpful, and hopefully you will too. They are “The Diagnostic and Statistical Manual of Mental Disorders” (Fourth Edition) (DSM –IV) published by the American Psychiatric Association; and the Second book is called “Assessing Psychological Trauma and PTSD”. (Second Edition) Guilford Press, Edited by John Wilson Ph. D. and Terence M. Keane, Ph. D.

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I had the pleasure of talking with Dr. Wilson thanks to David R. Thompson, Esq. during his heroic attempts (after several retrials) to defend Vietnam Vet Helicopter door gunner Jules Delpy – descendent of the famous Cisco Kid.

Dr. Wilson is a veteran’s advocate, a Psychology Professor, Full Bright Scholar and past president and co-founder of the International Society for Traumatic Stress Studies.

My hope is others will review these books in an attempt to gain some insight with troubled veteran clients. I have a soft spot for them in my heart, as I have never served in the armed forces. I suppose, helping veterans is my small part. I’m a dove, but believe in a strong military for self defense and defense of others. It’s easier for me to empathize with veterans; as opposed to some (not all) past repeat criminal clients.

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I suppose I ought to add a few substantive features to look for when you have a veteran client with “issues” (or anyone under heavy stress, i.e. police officers and lawyers). To start, see the DSM-IV – Section 309.81. To diagnose PTSD, the person must be exposed to or have experienced an extremely traumatic serious injury or death experience. Actual injury is unnecessary.

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As for symptoms, be aware if the person avoids stimuli associated with the trauma – it’s called “psychic numbing”.

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Other symptoms include; anxiety – making it difficult to fall or stay asleep, relived nightmares, hyper vigilance, exaggerated startle response and difficulty concentrating or irritability are all clues to PTSD. Ask your client if there has been a disruption in social or intimate relationships; and how severe is the nature of the traumatic experience to this unique client? How vulnerable were they before the trauma?

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In Dr. Wilson’s book (chapter 21 p. 603), he discusses the Forensic/chemical assessment of psychological trauma and PTSD in legal settings.

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Wilson discusses that in the criminal courts, PTSD has been used as complete and partial defenses. i.e. insanity, diminished capacity * 4 or actuality or in sentencing mitigation. (See Penal Code sections 28 & 29). Generally, an expert can testify if the defendant had the capacity to form a specific mental illness and its impact, or the absence of a mental state. To bar it is error. (Whereas, ultimate opinions on capacity may be barred.) See People v. Coddington (2000) 23 Cal 4th 529. Also see People v. Flannel (1979) [25 Cal.3d 668] re: imperfect self defense (i.e. subjective fear). * 5

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In personal injury cases, Dr. Wilson talks about compensation for traumatization, including how witness statements made by others are needed to demonstrate before and after changes. Proof is essential (Including life history records – i.e. medical, educational, and military). These help dispel claims of malingering. Of course, psychological testing also helps in the evaluation.

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A practical tip for the attorney is to develop separate client and family questionnaires – to be completed a part from standard legal intake forms. I suggest you have a psychologist assist you in designing such a form – which I use in some cases. This alerts me to a variety of client emotions to help better communicate my client’s story. At the expense of being considered talkative, I try not to forget Clients want to be heard….and express their story. A crafted PTSD intake form is a helpful tool to do so.

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Conclusion

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A legal decision should consider how the client’s human spirit was scarred, and how a Jury or Judge should factor in trauma in order to fashion a just decision, whether its compensation, a complete defense or mitigating punishment?

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For the practitioner, the first step is to recognize if your client has PTSD * 6
As Clarence Darrow suggested in his defense of Leopold & Loeb – the entire life of your client should be considered, balanced and then judged – instead of a single instance of aberrant behavior. Only then is true justice delivered.

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Footnotes

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1. Eric Burdon is a British rock-blues singer. He was born in 1941 and was the lead vocalist in many bands, including the Animals. He’s reported to be still touring.

2. I have briefly summarized my notes of Cynthia Boyd, Ph.D.’s noon speech to the San Diego Psych Law Society, about the Hidden Trauma Facing Soldiers returning from Iraq. She talked about cognitive and behavior symptoms, and social-criminal justice implications of affected veterans. One thought I had after listening to Dr. Boyd, is that incarceration will only aggravate and inflame the PTSD injury. Therefore, alternatives to jail should be explored.

3. When picking a jury, a few powerful questions will help discover bias. Here are twelve questions that may assist you in formulating your Voir Dire.

4. The American Academy of Psychiatry and the law provides a good discussion distinguishing diminished capacity from diminished actuality as used in California.

5. People v. Flannel (1979) 25 Cal 3d 668, stands for defendants honest but unreasonable belief he must defend himself from a deadly attack negates malice so the offense is reduced from murder to manslaughter. (The companion to “imperfect self defense” is the defense of diminished capacity or actuality). The “Flannel” rule, according to the court, is universally supported by legal commentators as the more humane view that, while the defendant is not innocent of crime, he is nevertheless not guilty of murder – instead manslaughter.

6. I want to thank Trial Lawyers: David Brahams, Esq. Brigadier General – Retired; Ed Switzer, Esq. - Colonel USMC, and David R. Thompson, Esq. - Army Veteran for their valuable input and counsel.