PTSD, TBI and the Lack of a Voluntary Act
by: Jessbarton • June 9, 2013 • no comments
I’ve gotten some emails congratulating me on last week’s Supreme Court decision in State v. Newman, which prompt me to both post this article and publicly note that congratulations are equally due to Bob Thuemmel, Jennelle Barton and Erin Galli. [1]
The court’s decision is noteworthy because it reaches beyond DUII law and into a legal area into which I’ve devoted the last several years of my life: The representation of veteran-defendant clients.
The prevalence of veterans of the nation’s more-than-a-decade-old Global War on Terror who suffer from post-traumatic stress disorder (PTSD) and or traumatic brain injury (TBI), and particularly when those afflictions are coupled with the effects of training and experience in the military total institution, have given rise to countless prosecutions of veteran-defendants (including two on whose cases I’m currently working) that involve mental-health issues.
When defense attorneys address these types of cases, they think, as they often should, in terms of defenses to the mens rea element of criminal prosecutions. But they also should think in terms of involuntary-based defenses to the actus reus element.
Law professor Melissa Hamilton thoroughly and expertly discussed this latter defense theory in her article Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder, 16 Berkeley J Crim L 340 (2011). As she concludes:
- “[T]he unorthodox nature of the Iraq and Afghanistan conflicts have resulted in a high prevalence of PTSD in soldiers with negative consequences continuing after their service. Empirical evidence substantially supports the perspective that the stress of war trauma has impaired the cognitive, physiological, and behavioral functioning of veterans with PTSD to the extent that some of their aggressive actions may be deprived of any internal component of voluntariness, will, or control.[2] If this is true in a particular case, the failure of the voluntary act element to be proven means there is no moral or legal basis for criminal culpability.”
Id. at 390.
Moreover, in veteran-defendant cases, defense attorneys should not consider mental-health issues solely in terms of trial-defense strategies. They also may be used in pretrial negotiations—particularly when seeking a district attorney diversion based on the expanded authority provided by Senate Bill 999 (2010) (codified at ORS 135.881, 135.886, and 135.996).
Finally, the legislature recently passed Senate Bill 124 (2013). It amends ORS 137.090 by creating a new subsection (2), which states: “In determining mitigation, the court may consider evidence regarding the defendant’s status as a servicemember as defined in ORS 135.881.” SB 124, § 1(2).
SB 124 has been signed by the Governor. The bill has an emergency clause, so it will apply in sentencing hearings from now on—including in sentencings for crimes committed before the bill’s effective date.
In veteran-defendant cases encompassing evidence that would support these actus reus and mens rea defenses, under SB 124 the evidence could be used as part of a sentence-mitigation effort. [3] See also OAR 213-008-0002(1)(a)(B)(C) and (I). This even could be done in cases involving so-called “imperfect” actus reus and mens rea defenses, i.e., cases where such evidence in support of the defenses was presented but failed to secure acquittals. In those cases, the evidence could be “recycled” and used at sentencing.
All of this gets back to Professor Hamilton’s article. As she explains, in any veteran- defendant case presenting mental-health issues, defense counsel should consider defense theories that address the actus reus element, and not just the mens rea element. And with respect to that latter type of defense, Newman will be of some assistance. _____________________________________________________________________
1 First, I want to thank my colleagues for their various emails. Second, I want to say that at least equal congratulations should go to Mr. Newman’s trial counsel, the inestimable Bob Thuemmel, and to research attorney Jennelle Barton. I’d have had no chance in the appeal without the excellent record Bob made at trial and the assistance Jennelle provided on appeal. Third, I want to thank Portland attorney Erin Galli for the briefing she provided me from her case, State v. Baty. That briefing proved extremely helpful—maybe even critical—in persuading the Newman court that the pertinent Criminal Code provisions apply in the prosecution of Motor Vehicle Code crimes.
2 Nothing in Prof. Hamilton’s article suggests that a veteran-defendant suffering from TBI, or his or her training and experience in the military total institution, should not also factor into a defense to a charge’s actus reus element.
3 For additional information about presenting such a mitigation efforts, see the Veterans and Military Service collection in the Library of Defense.
