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!

Always Talk To Mama


October 28, 2016

I was recently appointed to represent a young man we can call Andrew. He was charged with a violent felony offense and has been convicted of several prior violent felony offenses. Andrew has been in prison or in custody for most of the past nine years. When I first met him, Andrew was very angry. He was mad he was in jail, he was mad his family was not able to bond him out, and he was mad at the police for arresting him. Andrew was unable or unwilling to offer me much assistance as to what happened the night he was arrested. I was unsure if he was blinded by rage, could not remember because of intoxication that night, of if he just didn’t want to tell me.

For several reasons, I had a feeling from the beginning this would be a trial case. There was very little evidence against Andrew and, perhaps only because of his prior criminal history, the State was making a very high offer to him. Andrew told me he was only interested in a plea bargain on a misdemeanor. Both sides were digging in their heels.

I asked him towards the end of our first conversation that day in court if he wanted me to talk to anyone in his family about his case or if I could answer any questions for them. Andrew told me that he didn’t know anybody’s phone number, but he wanted me to get in touch with his mother Deborah. I filed a motion to get funds for an investigator later that week, both to help secure witnesses and also to help gather mitigation evidence for trial, and, if necessary, punishment.

The investigator was able to get in touch with Andrew’s mother as well as many other family members quickly. I met with Deborah and was provided with a wealth of information. Despite meeting with Andrew in jail and in court several times during the next few months, he was still unable or unwilling to help me. Even though the case was set for trial only three months after being filed, Andrew wanted things to move faster and faster but was still unable or unwilling to help me.

His mother, however, was a different story. Not only was she an eloquent and intelligent woman, she had a lot to say. She was able to give me a lot of background information about her son Andrew. She told me he had a college degree and used to have a small business in the Houston area. She told me that she thought Andrew’s issues were related to the death of his father and his subsequent drug abuse. The timeline certainly made sense. Deborah’s husband passed away less than one year before Andrew’s first arrest in his late 20’s.

After learning these facts about Andrew, I went back to the county jail to meet with him. I was slightly apprehensive as our last meeting a few weeks earlier in court ended with him yelling a string of profanities at me and all those around him. I talked to Andrew about the things his mother told me. I could sense a change in him. He confirmed a lot of the things his mother told me and was able to give me and my investigator more leads to chase down. We had a lot of good information to use to humanize Andrew as well as defend him in court.

Maybe he started to trust me a little bit more, but Andrew was also able to remember much more about what happened the night he was arrested. He was able to point to specific details in his relationship with the complaining witness . With the new information, I was able to find several inconsistencies in her statements as well as discover major biases and reasons for her to lie. After pointing these out to the prosecutor, Andrew’s case was dismissed on trial day. When I have him a copy of the Motion to Dismiss, he told me I alright in his book. I told him to thank his mother. Without talking to her, I would have had a much smaller chance of learning anything about Andrew and later enough information to secure his release.

Ask Allison: July 20, 2016

Dear Allison,

I’m having trouble with one of my clients. He’s saying he’s not guilty, but he wants to take jail time instead of taking the case to trial. The case has serious flaws in it, and I think if we went to trial we would probably win, but the prosecutor refuses to dismiss. There’s no way the jury would give my client more time than the offer, so even if we lost, there’s nothing to lose. He’s insistent on taking the jail time offer, though. The prosecutor has also offered a (longer) term of deferred adjudication probation, which would mean the offense wouldn’t even be on his record if he would do the probation and complete it, but he’s saying he wants the time. I have talked to him about this for hours, but he won’t change his mind. I am sick about this. What should I do?


Candid Cameron


Dear Cameron,

One thing your darling Allison wasn’t really ready for when she first started practicing criminal defense was the fact that she has different priorities than some of her clients do. It seemed we all probably had the same priorities- get them out of jail, keep it off their record, fight to the death against steep odds at trial if necessary. Unfortunately, though, it doesn’t start or end there.

A huge part of your job, Candid C., is to be a counselor. We advise our clients to the best of our ability, and, when it comes to how to plead and what deal to accept or reject, they make the decisions. Sometimes, Dear Cameron, our clients do not listen to us. Sometimes they don’t understand what we’re telling them. Sometimes they listen and don’t like what we have to say. A lot of times they listen and don’t think we’ve listened to them so how could we possibly advise them?

A lot of my clients, guilty or innocent, are bad decision-makers. Yeah, some of them were really just in the wrong place at the wrong time, but a lot of the time, being in the wrong place at the wrong time also involved making bad decisions.

Some of my clients make bad decisions because they never really learned about how to think things through critically and rationally, some of them have impulse-control problems, and some of them have behavioral disorders or problems with addiction.

Other than navigating the intentionally opaque language of the law, part of the reason our clients need us is to help them make good decisions. That’s a really difficult thing to be tasked with.

I think there could be a lot of reasons why your client maintains his innocence but does not want to go to trial, even with you advising him that trial would likely turn out favorably. Aside from spitting facts and bravado at your client, have you listened to why he doesn’t want to go to trial? Those reasons are glaringly absent in your letter, friend. Are you sure your client understands what you’re telling him? I have found it an invaluable tool to ask my clients to tell me what they think I just said. “Hey, I’m worried that I wasn’t coming across very clearly. What do you think I meant when I said that?”

In order to really be able to counsel your client, you need to have developed enough of a rapport with him that you can address his real concerns. Being accused of a crime is really embarrassing for a lot of people, and I’d imagine it’s pretty awful to have to discuss a bunch of truly intimate things about yourself, especially things you’re really not very proud of, with a total stranger. If you’re just walking into meetings with him telling him why YOU would go to trial, you’re not doing your job.

But maybe you HAVE developed a close relationship with your guy. Maybe he’s told you everything. Maybe you’ve listened and he’s just still insisting that he wants to do the jail time. In my experience, these are the clients who have different priorities than I do, and it’s a struggle. The clients that I have had like this are generally fairly self-aware. They know that they will not be able to meet the requirements of probation, and they don’t want to keep hassling with trying to keep something off of their record. Largely, in my experience, these clients are drug users who are not ready to stop using drugs.

Here’s the problem, sweet friend. We are not here to judge. We are not here to wrangle and control. We are here to advocate for our clients. It’s great when a client wants treatment and we get them help instead of punishment. It’s a wonderful feeling to see your client doing better and feeling better and starting a more productive life- and gosh, I want everyone who seeks that kind of help to be able to access it. But not all of our clients want that.

Aside from issues of competency and mental health, which are, of course, big issues, we have to give our clients the dignity to make their own decisions, even if we think they are bad decisions. If you have talked about all of the consequences of taking this conviction, explained the reasons why you think this case would be successful at trial, talked through all of the resources and programs your client is eligible for, and had a meaningful conversation about the reasons why your client wants to do the jail time, your job is not to convince him to make the decision you would have made.

Talk to your client one more time. Make sure he understands what you are telling him. Make sure you tell him everything. Ask him why he still wants to do this. And then (and this is the hard part), honor his decision.

Love Always,


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