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INTRODUCTION
Brockton D. Hunter, Esq.
For as long as warriors have returned from battle, some have brought their war home with them, bearing invisible wounds that haunt in the present. These echoes of war—manifested in self-destructive, reckless, and violent behavior—reverberate through society, destroying not only the lives of these heroes, but their families and communities.
A new generation of warriors is now returning home and there is good reason to believe more of them will bring their war home with them than ever before. Unlike previous generations of warriors, this one is relatively small, yet it will have fought the two longest wars in our country’s history—simultaneously. Without the draft we relied on in past wars, the burden of the fighting falls on fewer shoulders, with many veterans of this generation serving multiple combat tours. We have also called on them to fight in the most hostile of environments—from the sweltering streets of Iraq, to the hostile high mountains of Afghanistan—facing fanatical enemies prepared to die for their cause. Many of this generation will have survived combat injuries that would have killed them in the past, but will nonetheless bear the psychological scars of their brush with death. Their modern combat training and conditioning ensured that they killed when called on to do so, yet did little to prepare them for the emotional and psychological costs of taking human life.
While this generation of returning veterans has been called on to serve and sacrifice like none before them, our society has never been asked to serve—or sacrifice—less. Most Americans no longer follow news of the war in Afghanistan. Even at the height of the war in Iraq, when media coverage was ubiquitous, we were allowed only, as one of our veteran clients refers to it, “a Clorox bleached version of the war,” carefully sanitized of all of its horror. We were not even allowed to see images of flag-draped coffins unloaded from planes in the early years of the conflicts, out of concern it would impact our support for their continuance. It worked.
This disconnect between our society and our wars was best symbolized by a piece of graffiti left by an anonymous Marine on a concrete blast wall in Ramadi, Iraq at the height of that war:
AMERICA IS NOT AT WAR
THE US MARINE CORPS IS AT WAR
AMERICA IS AT THE MALL
Our veteran clients commonly echo this sentiment, reporting to us that no one knows what they have seen—what they have done—and no one cares, too absorbed in our everyday lives to even begin to understand. Whereas returning Vietnam veterans were notoriously spit on and called “baby killers,” this generation is largely invisible – feeding their isolation and hastening a downward spiral for many.
The gulf between society and this generation of veterans will be increasingly dangerous in the coming years unless we find ways to bridge it. But where do we start? Author, Karl Marlantes, a Rhodes Scholar, who served as a Marine infantry officer in Vietnam and earned the Navy Cross, among many other medals, provides us with hard-won wisdom here:
"There is a correct way to welcome your warriors back. Returning veterans don’t need ticker-tape parades or yellow ribbons stretching clear across Texas. Cheering is inappropriate and immature. Combat veterans, more than anyone else, know how much pain and evil have been wrought. To cheer them for what they’ve just done would be like cheering the surgeon when he amputates a leg to save someone’s life. It’s childish, and it’s demeaning to those who have fallen on both sides. A quiet grateful handshake is what you give the surgeon, while you mourn the lost leg. There should be parades, but they should be solemn processionals, rifles upside down, symbol of the sword sheathed once again. They should be conducted with all the dignity of a military funeral, mourning for those lost on both sides, giving thanks for those returned…Veterans just need to be received back into their community, reintegrated with those they love, and thanked by the people who sent them." (fn 1)
The whole community must come together to bridge the gulf and properly welcome this generation of veterans. When they stumble and fall into the criminal justice system, as we know many of them will, we in the defense bar have a additional, solemn role to play, in helping them up and bringing them the rest of the way home.
As we prepare to defend those who defended us, we must first recognize that we in the criminal defense bar share much in common with our veteran clients. Like soldiers, our job is often gritty and thankless, our mission misunderstood by the general public. Like soldiers, ours is a proud warrior culture, a tight and insular community with an esprit de corps not found in many other professions or areas of the law. Above all, we, like our veteran clients, swore a sacred oath to defend the rights and freedoms that make our system of government so special.
As criminal defense lawyers and military veterans, Ryan Else and I set out to create a text that would empower our legal colleagues to passionately and skillfully defend our fellow veterans in criminal court. To do so, we sought out some of the top experts from a wide range of disciplines to each contribute a chapter on their particular area of expertise. The resulting 24 chapters are divided into four major sections. Section I, Combat Trauma and Criminality: the Historical and Sociological Connection, provides the big picture view and serves as the contextual foundation upon which the rest of the book is built. Section II: Understanding Invisible Injuries: PTSD, TBI, and Related Substance Abuse, provides an overview of the current state of the rapidly evolving medical and psychological science on combat trauma. Section III: Special Considerations in the Attorney-Veteran Client Relationship provides military cultural competency to better understand your client and document his or her military service. Section IV: Defending the Combat Veteran in Criminal Court applies the historical, medical, and cultural content of the three preceding sections and translates it into concrete legal strategies, from case preparation to plea negotiation, trial, sentencing, and appeal. The Appendix contains a wealth of practical resources, guides, chronologies, questionnaires, and samples.
With proper preparation and execution, defending veterans can be among the most rewarding experiences a defense attorney can have. We can simultaneously help repay our nation’s debt to these heroes for their service and sacrifice, uphold the special protections now afforded them in our justice system, and benefit society by helping turn them back into assets, not threats, to their communities.
1. Karl marlantes, What it is Like to Go To War 195 (Atlantic Monthly Press 2011). Marlantes, a graduate of Yale University and a Rhodes Scholar at Oxford University, also authored the novel, Matterhorn, one of the most powerful books on the Vietnam war – and all wars. See Karl Marlantes, Matterhorn (Atlantic Monthly Press 2010).
The book is meant to be a comprehensive and easily referenced handbook. As such, it is broken down into four sections:
Section I: Combat Trauma and Criminality: the Historical and Social Connection (Chapters 1-4)
Section II: Understanding Invisible Injuries – PTSD, TBI, and Related Substance Abuse (Chapters 5-12)
Section III: Forming the Attorney and Veteran-Client Relationship (Chapters 13-16)
Section IV: Defending the Combat Veteran in Criminal Court (Chapters 17-24)
There is also a large appendix providing attorneys with basic background information on the military, veterans services, and a sample sentencing memorandum.
Table of Contents
Chapter 1: Echoes of War: Combat Trauma, Criminal Behavior, and How We Can Do Better this Time Around, by Brockton D. Hunter, Esq.
Chapter 2: No More Sugar Coating: Combat Trauma and Criminal Behavior, by Dr. Jonathan Shay
Chapter 3: The War at Home: Learning from the Aftermath of Vietnam as We Prepare for the Coming Wave, by Shad Meshad, Founder and President of the National Veterans Foundation
Chapter 4: Spinning the Bottle: A Comparative Analysis of Veteran-Defendants and Veterans Not Entangeld in Criminal Justice, by William B. Brown, Ph.D.
Chapter 5: Combat Trauma in the 21st Century: An Overview of Psychological Injuries in the Current Conflicts, by Brigadier General (Ret.) Stephen N. Xenakis, M.D.
Chapter 6: Post-Traumatic Stress Disorder (PTSD): A Brief Overview, by Daniel E. Dossa, Ph.D. & Ernest G. Boswell, Ph.D.
Chapter 7: PTSD in forensic Settings: Assessment, Diagnosis, & Criminal Behavior, by Ernest G. Boswell, Ph.D. & Daniel E. Dossa, Ph.D.
Chapter 8: Traumatic Brain Injury (TBI): the Invisible Injury, by Dr. Chrisanne Gordon, M.D. & Dr. Ronald Glasser, M.D.
Chapter 9: The Interaction of Substance Abuse and PTSD or mTBI, by Dr. Walter Busutil
Chapter 10: TBI, PTSD, and Psychiatric Drugs: A Perfect Storm for Causing Abnormal Mental States and Aberrant Behavior, by Dr. Peter R. Breggin, M.D.
Chapter 11: The Over-Prescription of Psychotropic Drugs for Military Personnel, by Dr. Bart P. Billings, Ph.D.
Chapter 12: Non-Western Traditions in Coping with PTSD: What We Can Learn From Indigenous Cultures, by Donald R. Elverd, Psy.D, L.P.
Chapter 13: The Counterinsurgency in Legal Counseling: Preparing Attorneys to Defend Combat Veterans Against Themselves in Criminal Cases, by Major Evan R. Seamone, U.S. Army Judge Advocate
Chapter 14: Understanding and Documenting Your Veteran Client’s Military Service, by David Ferrier
Chapter 15: Entering Into Kinship with the Warrior, by Hector R. Matascastillo
Chapter 16: Understanding Women Veterans, by Trista Matascastillo, Catherine O’Connor, and Mary-Beth Boyce
Chapter 17: Legal Strategies for Defending the Combat Veteran in Criminal Court, by Brockton D. Hunter, Esq. and Ryan C. Else, Esq.
Chapter 18: Pre-Trial Preparation and Seeking Resolution, by Brockton D. Hunter, Esq. and Ryan C. Else, Esq.
Chapter 19: Brat Dog: Handling a PTSD-Based Insanity Defense, by Marku Sario, Esq.
Chapter 20: Sentencing Mitigation Strategies and Techniques, by Brockton D. Hunter, Esq. and Ryan C. Else, Esq.
Chapter 21: Special Considerations of Veterans Cases in Federal Court, by Thomas C. Plunkett, Esq. and Ryan C. Else, Esq.
Chapter 22: Porter v. McCollum: The Story that Almost Went Untold, by Linda McDermott, Esq.
Chapter 23: Veterans’ Treatment Courts, by Judge Robert Russell
Chapter 24: Connecting the Dots: Using the Courts and Your Own Initiative to Navigate the System, by Evelyn Lundberg Stratton, Esq, and Corey C. Schaal, J.D./M.P.
Contributions of the National Veterans Foundation
The National Veterans Foundation (NVF) has been on the front lines of the fight on behalf of our veterans since the Vietnam War. This often meant assisting veterans in the court room along with other veterans advocates.
Attorneys advocating on behalf of troubled veterans in the past had little societal, scientific, or legal support for their work. It was not until the wake of Vietnam that PTSD was officially recognized, and attorneys defending veterans in criminal cases mounted the first successful PTSD-based defenses. These early advocates and their experts were few in number, and they fought an uphill battle. They could present precious little empirical evidence about PTSD, particularly regarding its ties to criminal behavior.
These pioneering defenders were also hindered by the lack of proven therapies to treat combat trauma, so the courts’ concern for public safety often trumped pleas for treatment, resulting in lengthy jail terms. In addition, the societal taboo endured, despite official recognition of PTSD, and the State’s calls for retribution frequently drowned out appeals for redemption.
Despite the uphill battle, a few stood strong in defense of our veterans. For example, Shad Meshad, Barry Levin, David Ferrier, and others formed a traveling trial defense team that successfully defended, amongst others, Albert Dobbs, a troubled Vietnam veteran already serving a lengthy prison term for armed robbery in Louisiana. Later, they distilled their years of hard-won experience in their book, Defending the Vietnam Combat Veteran, the direct predecessor to Defending Veterans. The NVF, led by Shad Meshad carried this torch for decades by promoting veterans’ justice issues and assisting criminally charged veterans.
In 2010, the NVF approached Brock Hunter about writing a book that would be the guide to defending this generation of veterans. The concept built upon Defending the Vietnam Combat Veteran, but sought to utilize the growing cross-discipline expertise that was growing rapidly with the current conflict. The NVF worked closely with Brock Hunter and Ryan Else to recruit the outstanding team of contributors that made Defending Veterans possible.
As the scope of this project grew, it became clear to the NVF and the editors that properly continuing the mission of educating the criminal justice system required the creation of a nonprofit dedicated singularly to this cause. The VDP was created to complete production and distribution of Defending Veterans, and to carry its message forward to all points of the criminal justice system. The NVF generously provided the seed money for the first printing of Defending Veterans and donated invaluable advice, connections, and reputation to the VDP in the creation of the book. The NVF and the VDP will continue to be partners in ensuring our veterans receive as vigorous a defense in the courtroom as they provide our nation on the battlefield.