mTBI, PTSD and Stress (Catch All)

[jmm99]

This comment applies only to the guilt phase of the trial.

By using the PTSD argument in this phase, you might have to say that the PTSD caused him to do the act (in effect, admitting the crime).

So, you run the risk of doing to your client what Mike Tyson's lawyer did to him. Paraphrasing the argument as I recall it - His childhood and life were so traumatic it turned him into an animal, just an animal.

A jury might well symphathize with a vet, but it is not likely to symphathize with an animalistic murderer, rapist or home invader.

Now, PTSD might work in a case that has some other redeeming factors, such as Anatomy of a Murder where temporary loss of mental capacity was allowed as a defense (with PTSD claimed as a basis for that). Or, in the Astan HT case, where premeditated murder ended up as a manslaughter plea - and the judge gave a light sentence.

In most jurisdictions in non-death cases, the jury decides guilt and the judge sets sentence. So, the PTSD evidence would most likely be heard by the judge if not introduced in the guilt phase.

Situational awareness needed on the part of the lawyer - plus good luck of the draw as to judge and jury.

[Boondoggle]

JMM pointed out a mistake I made, I should not have used the word "defense", but rather mitigation, a major distinction that JMM pointed out. However, there are already defenses available under mental health to defendants and if I recall, most states focus on the ability to distinguish right from wrong (I'm reaching here it's been awhile) but if these mitigating factors find favor in the courts, no doubt the next step will to see if they can winnow their way under mental health defenses and which JMM alludes to in his post above this.

[Schmedlap]

This comment applies only to the guilt phase of the trial...

By using the PTSD argument in this phase...

I was getting at the argument phase. I realize this specific case only applies to sentencing, but it seems like it could be a bellweather for the PTSD issue in general to be more prevalent in all phases of trials. I think prosecutors, fearing that juries will be sympathetic to PTSD, will be trying like hell to prevent the defense expert testimony from uttering any phrase that would clue the jury in to the fact that the defendant is a veteran and served in combat. I suspect they will argue that the mere mention of "PTSD" will make the jury overly sympathetic and argue instead that the expert can only refer to a mental condition brought about by a prior (unnamed) traumatic experience.

... you might have to say that the PTSD caused him to do the act (in effect, admitting the crime).

I'm a little rusty on my criminal law, but isn't this the GBMI defense? It may be the ideal plea.

A jury might well symphathize with a vet, but it is not likely to symphathize with an animalistic murderer, rapist or home invader.

I don't know. I'm thinking of the trial for the Haditha Marines. One of the jurors was quoted as saying that he didn't think he had the right to question their actions in combat. That, to me, suggests that jurors are willing to ignore or reject facts if they simply have an aversion to seeing a veteran punished, possibly because they view him/her as a victim. Unforunately, many, many people do view our veterans as victims.

Now, PTSD might work in a case that has some other redeeming factors, such as Anatomy of a Murder where temporary loss of mental capacity was allowed as a defense (with PTSD claimed as a basis for that). Or, in the Astan HT case, where premeditated murder ended up as a manslaughter plea - and the judge gave a light sentence.

Again, rusty on my criminal law, but isn't that the NGBI defense? That might be an ideal plea.

[jmm99]

Hell, you just took it - relative to this oldster.

GBMI Defense = Guilty but mentally ill

NGBI defense = Not Guilty by reason of insanity.

Huge difference to the client between these defenses.

1. GBMI Defense. There are two aspects to the sentence: (1) court ordered mental treatment; and (2) the punitive sentence. Logically, the mental treartment comes first; and that fits in with the usual intake system for felons given prison terms, a pre-incarceration psychologocal examination. BTW: if you have a client or are faced with a witness who has done prison time, obtain copies of his psychologiocal examinations. After the mental treatment ends, the prisoner is then sent off to prison to complete the punitive sentence.

2. NGBI defense. No sentence; but only court ordered mental treatment. Once that ends, the client is as free as a bird. And, if the mental capacity problem is transitory (occured only at the time of the alleged offense), the client walks free from the courtroom.

So, the default rule is not to plead to a GBMI; unless it's a dodge out of a death penalty case. In fact, if the defendant pleads a NGBI defense, I would be well advised as a prosecutor to request a GBMI instruction to give the jury an option to send the guy to prison (eventually).

The NGBI defense, in its pure form, has some hurdles - ability to distinguish right from wrong. Of course, if the vet actually suffers from delusions and thought he was being attacked by Viet Cong, NGBI would apply in full measure.

PTSD could also come up indirectly in other circumstances.

1. Where a temporary loss of mental capacity is allowed as a NGBI defense - as in Michigan (Anatomy of a Murder), where the LT was acquitted. However, based on jury interviews, the jury found that his wife had been raped and beaten by the deceased; and that the LT was justified to take his retribution and defend her honor. So, there the proofs of PTSD (which were introduced) were a hook on which the jury could hang its hat.

2. Where intent, deliberation, premeditation is an issue - as in the Astan HT case where the gal was torched by the bad guy who was then executed by her bodyguard. PTSD could be a valid argument vs formation of intent, deliberation, premeditation. In fact, a fair argument could be made under the right facts that the killing was involuntary manslaughter.

3. Where the defendant's perception is an issue - as in self-defense situations. E.g., the defendant viewed the deceased as a hostile threat (even if objectively he might be viewed otherwise) and reactions kicked in, etc.

---------------------------------
Haditha is a timely citation, but involved a combat situation (not PTSD from events decades ago). LtCol Jeffrey Chessani's Board of Inquiry convenes today, December 2, at Camp Pendleton.

Polarbear1605 knows more about Haditha in his little claw than I know. Of course, you know the story about him. It began "in the snows of far off Northern lands ...", where the Marines found him behind a log as an abandoned cub. They took him back to Quantico, raised him and then made him an officer and gentleman. Truly, an inspiring saga.

Cheers

Mike

[Polarbear1605]

Ah Yes, Haditha! A bit surprised that it popped up in this discussion but probably a good example of how bad the government can goof up a high profile war crime/court martial. The case spun out of control when Rep Jack Murtha, spent two weeks hitting the news shows stating that the Haditha Marines “cracked’ and committed “cold blooded murder” while the investigation was still ongoing. The Marine Corps has since been trying to get all the worms back into the can (4 plus years). As a quick update: Eight Marines were referred to Court Martial in the Haditha incident where 26 Iraqis (16 civilians and the remained combatants but those numbers vary) were killed when a Marine rifle squad reacted to an ambush sprung on them in the recently occupied city of Haditha, in Nov 2005. Five of the cases were dismissed based on the Article 32 investigation. The sixth case, one of the battalion’s intelligence officers (Lt), went to court martial and was found not guilty. I should note that the Lieutenant was never charged with any of the deaths. He was charged with making false official statements and discharging himself illegally from the Marine Corps. He was found not guilty of all charges. The Battalion commander was next. At the beginning of the Court Martial the military judge found that undue command influence had tainted the case…case dismissed. The undue command influence was upheld by the Navy Appeals Board. Not to be denied, the Commandant referred the Bn CO to a Naval Board of Inquiry. The BOI started on Wednesday, Dec 2, at Camp Pendleton. The last case is against the squad leader (then Sgt now) SSgt Frank Wuterich. The SSgt did an interview with 60 Minutes and the prosecutor subpoenaed CBS for the out takes in hope of getting evidence. CBS, surprisingly, rolled over and provided the out-takes once it got to a federal court. Since the undue command influence goes back to the Marine Col (lawyer type) that did the Commander of Multi-National Corps – Iraq investigation and then was assigned to the Marine Command Convening Authorities staff, it also taints the squad leader’s case. I believe that the squad leader will eventually also receive a BOI after his court martial is dismissed for undue command influence.
Collateral Damage: A number of other officers were relieved and censored including a Capt, two Cols and a Marine general, again before the investigation was complete. The Capt was a company commander located in one of Haditha’s adjacent cities (never figured that one out); the Cols were the regimental commander and the chief of staff for the Marines Forces Hq Iraq; and of course the commanding general of the Marine Forces Hq Iraq.
This baby has worms and flaming ducks crawling all over the place. The best place to get additional information is at the DefendOurMarines web site:
http://warchronicle.com/TheyAreNotKi...OurMarines.htm