New Performance Standards for Combatting Veteran Prosecution and Incarceration
by: Jessbarton • August 29, 2014 • no comments
The Oregon State Bar’s Board of Governors (BOG) recently approved a comprehensive overhaul of the bar’s “Specific Standards for Representation in Criminal & Juvenile Delinquency Cases,” which includes a series of standards pertaining to the representation of current and former “servicemembers” [1] facing criminal prosecution. The overhaul is a product of the bar’s Task Force on Standards of Representation in Criminal & Juvenile Delinquency Cases. Office of Public Defense Services general counsel Paul Levy chaired the task force and was joined on it by, among others, OCDLA members Shaun McCrea, Lane Borg, and Shawn Wiley.
Although the standards purportedly “are not intended, nor should they be used, to establish a legal standard of care,” they substantially mirror the Oregon Rules of Professional Conduct so to that extent have a mandatory component. Cf. Brian R. Means, Postconviction Remedies, § 35:11 at 1400 (2012) (ABA standards may “serve as a ‘guide’ for determining whether an attorney’s performance [was] adequate”; quoting inter alia Nix v. Whiteside, 475 US 157, 165, 106 S Ct 988, 89 L Ed 2d 123 (1986)). This is particularly true in cases involving defendants represented by court-appointed defense counsel. ORS 151.216(1)(f) authorizes the Public Defense Services Commission to:
- “[a]dopt policies, procedures, standards and guidelines regarding:
- “ . . .
- “(G) Performance for legal representation
Pursuant to that authority, the commission adopted “Qualification Standards for Court-Appointed Counsel to Represent Financially Eligible Persons at State Expense.” Commission Standard III.5 provides:
- “Subject to the provisions of Standard V, the appointing authority shall appoint only those attorneys who:
- “ . . .
- “Have read, understood and agree to observe applicable provisions of the current edition of the Oregon State Bar’s Performance Standards for Counsel in Criminal . . . Cases.”
In light of Standard III.5, adherence to the bar’s performance standards could be deemed contractually mandatory in the cases of defendants represented by court-appointed counsel, which is the vast majority of cases.
Of particular interest to this writer are the provisions that the bar’s Military & Veterans Laws Section proposed, which expressly address certain aspects of the representation of current and former military servicemembers facing criminal prosecution. The task force, and ultimately the BOG, largely included these proposals in the overhaul. The remainder of this article attempts to explain the servicemember-related standards.
STANDARD 1.2—EDUCATION, TRAINING AND EXPERIENCE OF DEFENSE COUNSEL
This standard’s implementation item 4 states: “Lawyers should . . . be familiar with other non-penal consequences of a criminal conviction . . . , such as those affecting . . . opportunities for military service[.]” [2] Of primary concern is the federal Lautenberg Amendment. It prohibits firearm possession by persons convicted of domestic-violence crimes. See Velda Rogers, Unintended Consequences, Oregon State Bar Bulletin (July 2006). Persons currently serving in the military typically must be able to possess firearms, so a consequence under the Lautenberg Amendment could end their military careers. Standard 1.2 expects defense counsel to take steps to try to avoid that consequence.
STANDARD 2.2—CLIENT CONTACT AND COMMUNICATION
This standard’s implementation item 6 states:
- “During an initial interview with the client, a lawyer should:
- “a. Obtain information concerning:
- “ . . .
- “2) The client’s history of service in the military, if any;
- “3) The client’s physical and mental health, educational and military services records[.]”
This standard is crucially important. Defense counsel cannot possibly represent servicemembers at the quality level the standards expect unless counsel knows which of their clients are servicemembers.
Consider Porter v. McCollum, 558 US 30, 130 S Ct 447, 175 L Ed 2d 398 (2009). There, the Supreme Court concluded that defense counsel provided ineffective assistance in his client’s capital trial by failing to present mitigating evidence grounded on Porter’s military service. Counsel failed, because he did not learn (or did not learn enough) about his client’s military service so did not realize what he had to work with. Adherence to Standard 2.2 is intended to prevent similar occurrences in Oregon.
But a 2013 survey conducted by the Pacific Policy Research Institute (PacPRI), [3] and endorsed by the OCDLA Board of Directors, disclosed that the majority of association members were not taking steps to identify which of their clients are servicemembers. The survey found,
- “Just over 43 percent of the defense attorneys who responded to the survey said they ask clients during intake whether they are veterans. Less than half of the respondents said they were familiar with the process of obtaining military records or V.A. [federal Department of Veterans Affairs] records for a veteran client.”
Melody Finnemore, Basic Training: Military & Veterans Law Section Seeks Better Education, Training & Engagement for Attorneys as Veterans’ Demand for Legal Services Grows, Oregon State Bar Bulletin (Oct. 2013).
Fortunately, OCDLA provides members information about how to identify servicemember clients, and how to obtain their military and VA records. This information is found in the OCDLA Library of Defense—specifically, on the Veterans & Military Service page, under the heading “Developing a Veteran-Defendant’s Case for Pretrial Negotiations, Trial, & Sentencing.”
Moreover, as a practice tip, defense counsel should know that if they have trouble obtaining copies of a servicemember-client’s military and VA records, they may seek assistance from the constituent services office of any member of Congress. [4]
STANDARD 6.1—EXPLORATION OF DISPOSITION WITHOUT TRIAL
Implementation item 9 states:
- “A lawyer should be aware of, advise the client of, and, where appropriate, seek to mitigate the following, where relevant:
- “l. The possibility of other consequences of conviction, such as:
- “ . . .
- “6) Loss of . . . military service opportunities[.]”
Here again, the standards address such collateral consequences as the prohibition on firearm possession under the Lautenberg Amendment.
STANDARD 8.1—OBLIGATIONS OF COUNSEL CONCERNING SENTENCING OR DISPOSITION
This standard’s implementation item 1 states:
- “In every criminal . . . case, a lawyer should:
- “ . . .
- “b. Be aware of the client’s relevant history and circumstances, including prior military service;
- “c. Understand and advise the client concerning the availability of . . . diversion agreements (including servicemember status)[.]”
The 2013 Legislature’s Senate Bill 124 expressly established military service as a mitigating factor. It is codified at ORS 137.090(2) and at OAR 213-008-0002(1)(a)(J). More information about this factor is available on the Library of Defense’s Veterans & Military Service wiki page, under the heading “Military Service as a Mitigating Factor.”
Item 1.c’s reference to “diversion agreements (including servicemember status)” pertains to the 2011 Legislature’s House Bill 2702, and to the 2010 Legislature’s Senate Bill 999. HB 2702 modified the state’s DUII-diversion statutes to include flexibility, so military service would not interfere with a servicemember’s participation in a DUII diversion program. SB 999 expanded district attorney diversion authority for a wide variety of crimes involving servicemember-defendants.
Very recently, The Bunker Project president Kyle Rogers and Vancouver attorney Michel Gray surveyed the state’s 36 district attorney offices about their handling of servicemember-defendant cases, including their use of SB 999. Six of the offices (so about 16.7% of the total) responded in one fashion or another. Of those six, four specifically answered questions about SB 999. None of them had an implementation policy. Moreover, none had allowed an SB 999 diversion, and no defense attorneys had asked them to. This lack of requests is consistent with the results of the 2013 PacPRI survey, which found, “Fewer than half [of responding OCDLA members] were familiar with SB 999[.]” Finnemore, Basic Training.
In any event, under the heading “District Attorney Diversion Authority,” the Library of Defense’s Veterans & Military Service page provides information about the requirements for SB 999 diversions. Likewise, under the heading “DUII Diversion Authority,” the page provides information about the requirements for HB 2702 diversions.
Standard 8.1’s implementation item 2 states:
- “In understanding the sentence or disposition applicable to a client’s case, a lawyer should:
- “ . . .
- “c. Obtain from the client and others information such as the client’s . . . current or prior military service
This is another iteration of the crucially important requirement that defense counsel determine which of their clients are servicemembers, without which counsel cannot possibly provide the quality of representation that the standards expect.
Standard 8.1’s implementation item 4 states:
- “In advocating for the least restrictive or burdensome sentence or disposition for a client, a lawyer should:
- “ . . .
- “c. Obtain from the client and others information such as the client’s . . . current or prior military service
Commentary to this standard states:
- “The proliferation and significance of collateral consequences of . . . criminal . . . adjudications also require an informed, vigorous and coordinated approach to sentencing and disposition. It is now better understood that the non-penal consequences of a conviction or adjudication, such a[s] * * * opportunities for service in the military, may be of greater significance to a client than the time he or she spends in custody or out of the home. Some of these consequences may be triggered by the offense of conviction . . . , while others may be triggered by the duration or conditions of sentencing or disposition. The lawyer is now obligated to understand these consequences and conduct the defense in order to avoid or mitigate their impact.”
This is an intriguing concept. It recognizes, for example, that a defendant currently serving in the military, and who is facing a domestic-violence charge, might prefer jail for a non-domestic violence conviction, instead of probation for a domestic-violence conviction. This is because jail might be worth avoiding the Lautenberg Amendment and the consequent end of the defendant’s military career.
A criminal-defense attorney—particularly one who has no experience or interest in the military—might feel squeamish about the very idea of seeking jail-time offer when probation is an option. But Standard 8.1 explains that whether to make that offer is the servicemember-defendant’s decision, not the lawyer’s.
CONCLUSION
In sum, the bar’s newly overhauled “Specific Standards for Representation in Criminal & Juvenile Delinquency Cases” expect defense counsel:
- To identify who are their veteran-defendant clients.
- To request those clients’ military and VA records so counsel may determine the extent to which they may base defense and mitigation strategies on their clients’ military service, including by taking advantage of statutory mechanisms such as those created by SB 999, HB 2702, and SB 124.
- To avoid collateral consequences that could prohibit further military service,
These new standards are a culmination of a five-year series of public-policy initiatives intended to adapt the state’s criminal-justice system to the realities of military service. And make no mistake: The call for these initiatives is a direct consequence of nation’s commitment to its now 13-year-old Global War on Terror (GWOT).
There is a chance that the GWOT finally is winding down. But history proves that even if the war ends soon, its casualty count will continue for another generation at least, and that too often, servicemember-defendants will continue to be part of the war’s casualties. [5] Recognizing these things, the new performance standards serve the nation’s moral obligation, as Lincoln put it, “[T]o bind up the nation’s wounds” and “to care for [those] who shall have borne the battle[.]”
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- ↑ The word “servicemember” is a term of art. See ORS 135.881(4). Basically, it means a person who currently is serving in the active-duty military, the reserves, or the National Guard; or a person who previously served (a veteran) and who received an honorable discharge, a general discharge under honorable conditions, or a discharge under other than honorable conditions. It does not include a veteran who received a bad conduct or a dishonorable discharge (either of which requires a courts-martial conviction).
- ↑ This provision essentially replicates a provision found in the previous version of the standards.
- ↑ PacPRI is run by sociologist and professor of criminal justice at Western Oregon University, William Brown.
- ↑ By way of example, the writer’s father-in-law was a veteran of U.S. Navy who served during the Korean War and beyond. He was to be buried at a military cemetery. But after his death, his family could not find a copy of the deceased sailor’s discharge papers, called a “DD-214.” Without that document, the sailor could not be buried at the military cemetery. A few days before the planned burial, the writer spoke with Sen. Jeff Merkley’s constituent services staff. Within 24 hours, staff moved the military bureaucracy to locate the DD-214 and fax it to the cemetery. The sailor’s military burial then was held as planned.
- ↑ As of 2012, servicemembers were “8.4 percent of Oregon’s general population,” but they were “18.9 percent * * * of the state’s 2012 prison population” for an overrepresentation “factor of 125 percent.” See Jesse Wm. Barton, Stemming the Tide: The Challenges of a Military and Veterans Lawyer, Oregon State Bar Bulletin (Jan. 2014).
