Oregon State Bar Bulletin OCTOBER 2013
Fresh off a victory from the 2013 legislative session, the Oregon State Bar’s Military and Veterans Law Section is seeking to better educate and train criminal defense attorneys who represent the growing number of veterans returning home, many after multiple deployments.
The section succeeded in passing Senate Bill 124, which allows courts to consider a defendant’s military service as a mitigating factor during sentencing in criminal cases. The bill passed both houses unanimously and was signed into law June 6.
Now the section is working to improve the performance standards of attorneys who represent veterans and the sooner the better, according to Jesse Barton, a Salem attorney, section member, and longtime advocate for veterans and their families.
“The Legislature added an emergency clause to SB 124, so it would seem they want performance standards improved quickly, too,” he says.
The Military and Veterans Law Section hopes to continue building momentum in its efforts to ensure that Oregon’s legal community is able to most effectively serve those who have served America. As Barton and others note, there is plenty of evidence to show that veterans’ need for attorneys is far outpacing the number of lawyers adequately prepared to help them.
Section Works to Serve Vets, Ease Strain On Legal System
The section, which disbanded in 1999 due to a lack of participation, re-formed last January as part of the Oregon State Bar’s ongoing commitment to serving veterans. In 2003, the bar created the Military Assistance Panel, which consists of attorneys who volunteer pro bono services for active duty members and their families. The bar’s Board of Governors created an advisory committee to oversee the panel’s development, establish policies that guide the panel’s operation and organize CLEs to train lawyers who want to serve on the panel.
In late 2011, the Board of Governors created the Lawyers for Veterans Steering Committee to replace the advisory committee. The steering committee conducted a survey about re-forming the Military and Veterans Law Section and found that many bar members supported the idea. Chris Kent, a partner with Portland’s Kent & Johnson, chairs the section and says its mission is simple: To provide focused legal services and better legal services to veterans and their families.
“We have so many war veterans coming back after so many deployments that it puts stresses on the legal system,” he says. “Every day you pick up an article somewhere that talks about traumatic brain injuries or PTSD (post-traumatic stress disorder). The military has gotten better at saving lives on the battlefield, but the military hasn’t done anything to help people after that. We might take care of the physical injuries better than we ever have, but we’re not taking care of the other problems.”
The Military Assistance Panel primarily provides guidance about employment law and family law issues, as well as matters related to creditor law. One of its biggest challenges is cases that involve disability claims.
“That is maybe the biggest bugaboo that we face as a country. We have a ridiculous number of backlogged V.A. claims,” Kent says. “And there are not too many Oregon lawyers who specialize in the disability claim process for veterans.”
Portland general practitioner Charlie Williamson was president of the bar when it established the Military Assistance Panel and he has assisted some active duty members through his membership on the panel. Over the last decade, he has seen some improvement in understanding among merchants, banks and landlords about the protections military members and their families have from creditors under the Servicemembers’ Civil Relief Act.
“There are still huge problems, but it was a time when more people were deployed and there was a need for more education out there,” he says.
At the same time, Oregon still has many troops deployed and there is still a void left unfilled by the state’s legal community, Williamson says.
“We’re out of Iraq and winding down in Afghanistan, and I’m afraid the issue doesn’t rise on the radar now as much as it used to,” he says. “I think there is still a need out there for lawyers to help service members and their families assert their rights under that act.”
Budget cuts at the Pentagon, the federal sequester and the backup at the V.A. create even more obstacles for service members to get the help they need, Williamson says, adding the number of homeless veterans keeps growing.
“There are tremendous needs and everybody from the Congress to the president says they want to help. Everybody says they are trying, but it doesn’t seem to get any better,” he says.
Lawyer/Service Members Advocate for Better Training
Amy Lammers, secretary of the Military and Veterans Law Section, joined Metropolitan Public Defender Services Inc.’s Hillsboro office last spring after six years of active duty service as a Judge Advocate General (JAG) in the Air Force Reserve. As a JAG, she handled claims and tort cases, was a defense attorney and, during her last year of active duty, a chief prosecutor.
Lammers says she hasn’t encountered many cases involving veterans as a public defender, but notes that she and her legal assistant make a point of asking potential new clients during intake if they are veterans. If the client is a veteran, Lammers does treat that status with some special considerations.
“I don’t necessarily treat them differently, but it’s like any other case where there might be something unique about their background that may have an impact during the trial or sentencing,” she says. “Being a veteran myself has helped because there is a camaraderie and a brotherhood from the shared experience, and that helps with client management in a way.”
Even with her military experience, Lammers sees the value of continually learning new skills in handling cases involving veterans, and she hopes for a growing inventory of training workshops, continuing education courses and other resources for attorneys who work with veterans and their families.
“We recognize the veteran population in Oregon is growing, and I do think awareness should grow,” she says. “I can’t say that I always feel equipped to handle the issues that come up. I think PTSD and other issues do play a bigger role than we realize, and we need to be equipped to accommodate that.”
Beaverton attorney Mark Holady has been a JAG for the U.S. Army Reserve for nearly a decade, serving as a prosecutor and providing legal assistance to soldiers of all ranks. He also is a longtime member of the Military Assistance Panel and says he believes there is a general lack of understanding within the private defense practice about the stress and after-effects of combat.
When veteran clients hire him, Holady receives a discovery packet that will share some details about the person and what they have been through. “There is great value in having been around people who have served, and we both know what’s going on. Even if the service member doesn’t want to say it, we still have a pretty good idea of what is going on,” he says.
“It may be that someone was a sweet spouse before the service, and now they are no longer playing the same role in the marriage or family because they are worried about being ambushed when they go to the grocery store,” Holaday adds. “Frankly, none of us are equipped to deal with that out of law school. They don’t teach psychology in law school.”
Numbers Show Veterans’ Legal Needs on the Rise
Data from the Oregon Department of Corrections (DOC) and the Oregon Department of Veterans Affairs show that a growing number of veterans are in dire need of support from the legal system. Barton, working with Western Oregon University (WOU) students, found that veterans made up nearly 20 percent of the state’s male prison population in 2012, compared to about 10 percent just a few years before. The DOC’s data showed that about 10 percent of the women’s prison population last year was made up of veterans.
A recent study by the Pacific Policy and Research Institute found that 20,000 veterans have been booked into Oregon jails over the last three years. That number may actually be even higher given that many veterans are reluctant to reveal their veteran status because they are applying for or receiving military benefits they don’t want to lose or because of embarrassment, the study states.
Led by WOU Professor William Brown, a Vietnam War veteran who holds a Ph.D. in sociology, students from the university’s Criminal Justice Department attempted to survey 1,000 members of the Oregon Criminal Defense Lawyers Association. They ultimately spoke with 96 members (a 9.6 percent response rate).
What they learned was that of those 96 attorneys, 54 had represented a total of 239 veterans over the last year. A snapshot of the survey responses showed that 74 percent of the veteran clients had been diagnosed with PTSD; 33 percent had been diagnosed with a traumatic brain injury; 85 percent of the cases involved alcohol; 42 percent involved illegal drugs; and nearly 13 percent involved prescription drugs.
The study also found that of the 54 attorneys who defended veterans, just under 17 percent called upon an expert witness or psychologist and just over 11 percent had called upon a pharmacologist as part of their defense strategy. More than 66 percent said they had called “other” types of expert witnesses, though the study did not detail what that category included.
Nearly 70 percent of respondents said they believed military service was relevant during the pretrial/trial phases of a veteran’s case, and more than more than 81 percent said it was relevant during mitigation and sentencing.
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. records for a veteran client. Less than a quarter were familiar with codes for military or V.A. records.
Fewer than half were familiar with SB 999, which gives district attorneys greater discretion in referring active duty members and veterans to a supervised performance program if the referral is in the interest of justice and would benefit the service member/veteran and the community. Just over 6 percent of the attorneys who knew about SB 999 had used it, and none of them successfully. The reasons cited for the lack of success split evenly between the defendant being offered a separate plea and the prosecutor not allowing SB 999’s inclusion.
CLEs, More Training in the Works
The study has its share of doubters who question its credibility, while others say it clearly points to the need for greater education and training for defense attorneys. Barton points out that there are plenty of defense attorneys who have provided excellent defense for their veteran clients: Among them, Markku Sario, State v. Jessie Bratcher; Kathleen Bergland, State v. Robert Helmick; Beverly Richardson, and David McDonald, State v. Aaron Altabef. Barton says a common key to their success was the attorneys’ willingness to completely immerse themselves in understanding military culture and building the unique skill set required to defend service members and veterans.
One of the factors that inhibits attorneys — in Oregon and across the U.S. — from accomplishing this immersion is the sense of disconnect with the wars in Iraq and Afghanistan compared to past conflicts. Members of the World War II generation knew at least one family member, friend or acquaintance who went to battle, most citizens gave up basic supplies to support the war effort, and people regularly participated in community events to support the soldiers.
In contrast, a much smaller portion of Americans are related to someone who has served in Iraq or Afghanistan, and few of us have had to sacrifice any of our daily comforts to support the troops.
“Since we don’t have that culture engrained in society anymore, it’s slipping. Lots of people want to help and frankly people just are disconnected. It’s just something that somebody else does,” says Kent.
Williamson says this sense of disconnect may be one of the reasons the Military and Veterans Section has had difficulty building its membership. “We have about 60 members and we’re actively recruiting, but even some people who signed the petition to create the section haven’t joined,” he says.
Kent, whose own son, Joe, has been in the military for 15 years and has served more than a half dozen tours since 9/11, says he recognizes that some of the expertise needed to serve on the Military Assistance Panel may be outside the practice specialties of many Oregon attorneys.
“The disability side is difficult, but people can volunteer in other areas and we want to build a talent pool and critical mass,” he says. “We would like dues participation so we can build a kitty to start offering trainings. If people want to help, that’s a way to help — just join and pay the $20 a year. Every little drop helps.”
Holady is among the attorneys who don’t specialize in the types of legal services the Military Assistance Panel is asked to handle, yet he found a way to volunteer by getting involved in the bar’s legislative efforts on behalf of veterans. He advocated before the legislature during the 2009 and 2011 sessions, and was among those who succeeded in getting SB 124 passed during the most recent session. Holady also is involved in promoting veterans’ courts as well as increased training and education for attorneys.
“We want to help Oregon lawyers better understand how to work with these people who are no longer the same as they were before they served,” he says.
The Military and Veterans Law Section and the Oregon State Bar will co-sponsor a CLE event titled, “Handling a V.A. Service Connected Disability Claim,” from 9 a.m. to 4:30 p.m. Nov. 14 at the Oregon State Bar Center in Tigard.
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.
© 2013 Melody Finnemore