Post-Traumatic Stress Disorder in Criminal Defense

Post-traumatic Stress Disorder is a condition that occurs in people who have experienced a frightening or violent event, i.e., trauma.  The condition’s symptoms include nightmares, avoidance of the situations or people that remind the individual of the incident or series of incidents, flashbacks to the incident, trouble sleeping, feelings of being on edge, and they usually continue for over a month, and can normally be traced to a specific indecent or series of incidents.  Some people are familiar with this condition through their readings or experience with veterans who have faced combat or hostile fire, or incidents like the USS Cole bombing. PTSD can manifest within a few months of the incident, or sometimes even months or years later.

However, veterans are not the only ones who experience trauma.  Many of us have had veterans as clients, and I frankly started learning about this disorder because of my attempts to assist veterans in criminal court.  However, if one thinks about it, many of our clients have been exposed to trauma.  People who were physically abused as children, people who were assaulted in prison, women or men who were sexually assaulted, young people who were part of gangs and the violence in their neighborhoods, people who have lost family to suicide, or been in a deadly fire, or were injured in a tragic car accident, all can experience PTSD.  Now, before you get skeptical, think about these questions as they relate to our clients, and see if it is likely our clients could answer “Yes” to any of these questions, regardless of why.

  1. Do you have nightmares?
  2. Do you feel anxious? [cannot sit still, worries, less than calm]
  3. Do certain sounds or smells make you feel anxious?
  4. Are you uncomfortable in crowds?
  5. Are you frightened by sudden loud noises?
  6. Are you uncomfortable if you cannot see the entire room?
  7. Do you ever feel uneasy or threatened? [or, do you have sudden angry outbursts for no apparent reason?]
  8. Do you have trouble sleeping?
  9. Do you avoid noisy areas?
  10. Do you have negative views of yourself, or feelings of guilt or blame?

These questions are not all encompassing, nor are they a surefire way to detect it.  If one takes the risk factors [abusive childhood, for instance, anyone who has been involved in a CPS case, or prior military service in a hazardous area or direct combat, or prior prison time, or prior losses of loved ones in a violent way, for example] and then observes the client [are they hyper-vigilant, keep the their backs to the wall, head on a swivel, or are they complaining of sleeplessness, irritability, bad dreams, taking anti-anxiety medications, do they appear to look for threats or complain about how some guard reminds them of their dad, “that bastard”, etc.], then this is worth following up for several reasons.

First, the circumstances that produce the PTSD are often quite mitigating to juries, judges, and prosecutors.  It will not always help, but if people begin to see your client as the kid who was abused and placed in a foster home instead of the armored car robber, then this can only help.  Second, the PTSD itself is often the root of the actions that got your client here in court in the first place.  Whether it is being caught with controlled substances that they use to anesthetize, or the drinking that led to the DWI, or a flashback that caused an over aggressive reaction that led to an assault charge, a diagnosis of PTSD could mean you have both an explanation for the illegal act and a way forward, i.e. treatment.  This can only help your client.  Last, it can provide, in some instances, a defense, particularly if one can put the fact-finder back in the incident that caused the PTSD and see how it was perceived by the client.  In limited instances, it may even provide a defense against intent if one can prove a flashback occurred or that the circumstances were a misconception.

So, we know to at least look for the presence of this disorder in our all-too often traumatized clients.  Next, since we are lawyers, we need to prove this so we can use it.  If our client is a veteran, often that simply means obtaining his or her medical records if they already have such a diagnosis.  If they are vets but do not have the diagnosis yet, then see if one can arrange for a VA examination and diagnosis.  First though, one may need to obtain the records that support the diagnosis, such as combat awards (a Purple Heart, a Combat Action Badge/Ribbon, commendations with a “V” device for valor under enemy fire, awards for heroism [such as a Bronze Star], or a unit citation) or the discharge papers, called a “DD-214”, which will list the job, deployments, and action history of the service member. If these records are not available, a request can be sent to the VA to obtain a copy. We can also look to the unit history maintained in the archives of the separate services, which will list combat or hazardous actions by the person’s unit.  These can be obtained by an e-archives release form downloaded off the web.

For our civilian folks, the records process is trickier.  Prison and jail discipline or medical records are often a surprising gold mine, even if it looks as if your guy was written up for the fight.  Attacks on your client are often documented in either medical or disciplinary records. The reader may poo poo this, but how many of your friends would respond with calm equanimity to an attempted sexual assault or shanking?  For older cases of sexual or physical abuse to a client during their childhood, one needs a subpoena typically to the Children’s Protective Service agency in the county that handled them, and a release for any medical or counseling records. Juvenile records are often also a good source for this. We may also want affidavits from family [this works for the vets above as well] members as to the client’s waking up at night screaming, increased drinking, increased drug use, or sudden bursts of temper since returning from prison, the service, the fire, or since leaving foster care.

Which brings up a point – PEOPLE DO NOT LIKE TALKING ABOUT TRAUMATIC EVENTS BECAUSE THEY WERE TRAUMATIC.  One needs to get at least some trust, some facts, or some family help to prove this disorder up, because no one likes sharing difficult times from their past with strangers.  Would you?  Keep this in mind and treat the issue with some dignity.  Do not expect immediate help from the client as to the horrible things they had to endure.  This does not happen in a holdover cell meeting; it happens over time and investigative effort.

 

So, look for the PTSD that many of our clients have, find the proof, and use it to lessen their consequence.  Good luck!

Mental Health Madness

I was recently appointed to represent a young woman charged with a felony.  We can call her “Jasmine.”  Upon reviewing her file and the police report, it seemed something was very strange.   Jasmine was the passenger in a stolen vehicle that was owned by a law enforcement officer.  She was partially undressed and in the car with a man who she didn’t know when the vehicle was stopped.

When I went to talk to her, she was irate.  She was confused about why she was being charged with Unauthorized Use of a Motor Vehicle and began yelling.  The other women in the holding cell tried to calm her down.  I tried to calm her down.  Jasmine was just stringing words together that made no sense at all.  I couldn’t ask her simple questions such as “Where is your family?” or “Who can I call to help you?”  I noticed she had a medical bracelet on her arm.  I tried to ask her if she had seen a psychologist or psychiatrist since she had been arrested a few days earlier.  She couldn’t tell me. I filed a motion to have her examined for competency and am awaiting those results.

Last year, I represented an older man who had been in prison for most of the past twenty five years.  “Frank”, as we can call him, told me that he had spent a lot of time in isolation because of behavior issues. Unlike Jasmine, he could communicate with me but he had a long history of mental health issues.  He told me was just better off in custody than on the streets.  Frank was able to get some level of care in custody that he could not on the outside.  He was happier in custody, he told me.  He received his medication in custody, he said.

In 2015, I represented a young man who had been in prison several times and was charged with a new felony.  “Steven” also had been in trouble for a multitude of minor offenses, such as trespassing, possession of marijuana, and driving with an invalid license.  He was accused of threatening an officer, which I argued took place during a mental health episode.  Luckily, this incident was recorded on video and his case was eventually dismissed.  But, during the several months his case was pending, Steven continued to have mental health issues.  I asked for him to be examined, and he was- twice.  Both times he was found to be competent despite having several serious diagnoses and taking heavy duty medication.

During that same period of time, I represented a man charged with violating his probation. “Ricky” was very young.  He could have been the poster child for societal issues.  His father was in prison, his mother was in prison, his grandmother who raised him was dead and his only living relative was an uncle who was, at best,  marginally interested in providing for Ricky.  He dropped out of high school, started doing drugs and was headed nowhere, fast.  Ricky also exhibited some very strange behavior.  The judge in that court tried to work with him and sent him to several different programs in lieu of prison.  Each time, he violated the rules and regulations of the programs.  The judge even provided money so that I could bring in a psychiatrist to evaluate him.  Eventually, after more than eighteen months of trying to keep him out of prison, Ricky’s good fortune ran out.  He was accused of assaulting several people in custody and his probation was revoked.

So, what’s the point?  First, the Harris County Jail is one of the biggest mental health facilities in the country.  There are more uninsured people in Texas than anywhere else, and far too often, the only option available to people with mental health issues is jail.  Combine that with a general lack of funding, and options for many people evaporate quickly.

There are some diversion programs available in Harris County, including the Mental Health Court but typically, people require a specific, “qualifying diagnosis” to gain admission into this court, and certain types of offenses are bars to admission.  Some people, like Ricky, do not have a “qualifying diagnosis” but still clearly need services.  There are programs in the jail to help people, but far too often, it’s incredibly difficult or impossible for uninsured people, or homeless people, or people on the fringes of society, to keep appointments with social workers or doctors, or refill prescriptions, or go to probation meetings.

So what’s the solution?  More programs?  More funding?  More doctors and mental health professionals?  You tell me.

Lean on Me

Lean on Me

I have a friend we can call Kevin. Kevin and I are pretty similar. We are both criminal defense attorneys. We are both former prosecutors. We are both fathers. We are both recently divorced. I wouldn’t say he and I are great friends, but I’ve known him a long time. I handled cases with him when I was a prosecutor and he was a new defense attorney. We would talk and joke together. Kevin was, and is, a good guy. We knew about each other’s lives in a general sense.

I would see Kevin in court and around the courthouse. We would exchange pleasantries and chat briefly. I had lunch with Kevin about a month ago. He told me a lot of things, in confidence, about his life, his ugly and messy divorce, and his kids. To make a long story short, his wife left him and multiple kids and left Texas. He was struggling with all his responsibilities, emotionally and I suspect financially as well. That was clear.

Very recently, Kevin was arrested. The details don’t matter, but he was arrested inside the courthouse. His charges can, and likely will, have great impact on his standing with the State Bar. He has a very good lawyer defending him. He has, whether he is conscious of that now or not, a lot of support. Kevin has a network of friends inside and outside the courthouse who are here for him, whether he knows it or not.

One of the hardest aspects of defending those accused of crimes is emotional processing. We see and hear some awful things. Violence, sexual violence, drugs and the cumulative impact on our clients, their families, victims, and so many others in the criminal justice system. These things also affect us sometimes heavily. Often, our clients are accused of heinous things. We see and hear all the details. We need to remain emotionally detached so that we can make rational and logical decisions to help our clients, but, at least for me, caring makes me a better lawyer. I care what happens to my client, and his family, and his life. I am still trying to find the right balance, but feel like I’m able to care and make sound and balanced decisions. I have to care but that takes a toll on me, and all of us I suspect. In every case.

At the same time, life is never put on pause while we defend our clients. We have lives. We have relationship problems and divorces. Our kids get sick. Our friends and families have problems and often they look to us for help. Where do people like Kevin, or, me, or even you, look for help? Similarly, our practice is never put on hold when we have personal problems. Clients will understand to a degree, but their case is not any less important to them because you’re getting divorced or your mother is in the hospital. So what are we supposed to do?

I’m not so egotistical that I think me calling Kevin to check on him after our lunch would have kept him from getting arrested, but I still should have called. I knew he was struggling and I had been through so much of what he was facing. Even if I couldn’t offer him concrete help, I could have told him I supported him.

I don’t have all the answers. I know HCCLA puts on a great Seminar named after a lawyer who really struggled. (The Annual Donald Davis: Dealing with the Practive). It’s a great seminar. I also know I have a cell phone, as do we all. Call me (713-452-0255) anytime or call another friend. Lean on me, or somebody. You’re not facing the world alone. The weight of the world but seem like it’s all on your shoulders, but it’s not. Share some of your burden. Don’t put your future, your freedom, or your livelihood at risk.

 

 

Ask Allison: August 10, 2016

Dear Allison,

A friend and I got out of law school together and immediately became solo practitioners. I work very hard and I am building my practice faster than my friend. I was supposed to meet my friend and some other lawyers for a drink. My friend called up to cancel and I was telling my friend it was a great opportunity to network, trying to encourage more interaction with other attorneys. I told my friend I had gotten some case referrals, advice, and it let me blow off some steam after court. My friend said just before we hung up, “I don’t want to be known as another functional alcoholic around the courthouse.” I was flustered and asked my friend if that meant me. My friend stammered and did not deny it was a reference to me. How do I tell if my friend is telling me I have a problem, or just jealous I have been more successful and made better connections?

Maybe a Drunk

 

Dearest Maybe,

I think the answer to your question is that you need to have a heart-to-heart talk with your friend. No matter what your friend was speaking from: legitimate concern for you, jealousy of your career trajectory, or his own stress and frustration, there is something ugly between you two that needs to be confronted.

I think if you’re not sure if you’re an alcoholic, you should probably back off the sauce and see how that feels. In this game, your darling Allison knows how easy it is to get sucked into thinking the only way to network and get to know people is through heavy and sustained drinking and talking about how much we drink. This, dear friend, is wrong.

Your Allison will not deny that when she first started to practice, she also discovered the network of bad boy boozers who tend to gather in a certain smoke-easy bar that shall remain nameless, drinking through the night and telling war stories. It’s thrilling to be included. It’s exciting to meet people you consider Legal Legends and hang out with them and feel like, for a hazy evening, that you are one of them, or at least, that one day you might be.

But the truth is that the people who love good alcohol also usually love good coffee. And if you insist on liquor, the benefit of networking and hanging out and blowing off steam over drinks comes in the first hour or two when clear heads still prevail, and not in the fifth or sixth hour, when you risk your health and safety and won’t remember much anyway. Leave them wanting more, I tell ya. Don’t be the last one to leave the party. And don’t get so sloppy you say or do something you’re going to regret later. Seasoned, older drinkers will remember and you won’t. Don’t be a rube.

I think you also need to question whether the issue is not actually how much you’re drinking, but that you have a reputation for it in a professional setting. Reputations for young lawyers are huge, as I’m sure you know, and what a bummer if your networking sessions are actually making your reputation worse. How awful. If this is actually the case, then I think your friend has done you a huge service. There have been several times I have wanted to reach out to fellow attorneys, especially young ones, and tell them that I have no idea what is actually going on, but people are talking about them in unflattering ways, and the rumor mill is flying about their promiscuity/drunken antics/substance abuse (as an aside, to quote the amazing Dr. Hunter S. Thompson, “I said there was a rumor in Milwaukee. I would know, because I started that rumor.”) Those are things I would really appreciate hearing from someone, as hard as they might be for a friend to tell me.

If you have found a friend that is close enough to talk to you openly about negative things other people are saying about you, I think this is a very valuable friendship. A person that you’ll never have to wonder if you have spinach-in-your-teeth around. If this friend is trying to gaslight you and shame you into feeling self-conscious because they are jealous of your success, I think you should evaluate whether that’s a friend at all and cut your losses before you find out that they’re the source of your bad reputation. I also think that sometimes people just shoot off at the mouth because they’re tired and stressed, and who knows what this kiddo was going through when they said that, yeah?

In my experience, Maybe, it’s not common for people to be as manipulative and deceptive as they are in movies. The darker hearted among us are easy to spot. You already have an inclination about this friend, and whether or not they meant to help or hurt. But go out for a cup of coffee. Don’t remind him that you’re doing better than he is. This game is so new to both of you, you don’t really know that anyway. Chat about what’s going on with him. Ask him real questions and actually listen to the answers. Casually bring up how you’re not drinking so much these days and see if he responds. I have a friend who once said to me, “I love you enough to be happy for you when you get the things that I want.” Look for whether he feels that way toward you, and whether you feel that way towards him.

Best of luck, and write me if you need anything.

Love Always,

Allison

Every week attorney Allison Jackson answers a question sent in from our readers. Have a question for Allison? Write to her at askallison AT hcclatv.com.