|Oregon State Bar Bulletin APRIL 2010|
When Jessie Bratcher, a 26-year-old Oregon Army National Guard soldier from John Day, shot and killed a man in 2008, he freely admitted to committing the murder. The question for jurors was whether Bratcher, at the time of the killing, was insane from the mental and emotional trauma he suffered during the Iraq war.
The jury deliberated for two days last October before deciding that Bratcher was indeed guilty but insane because of post-traumatic stress disorder. With that verdict, Bratcher became the first Iraq war veteran in the state — and one of the first in the nation — to successfully claim PTSD as a criminal defense.
It was a watershed verdict on several levels. For decades, most criminal defense attorneys completely avoided introducing PTSD as an explanation for why a client with wartime experience may have acted violently toward others or engaged in other illegal activities. Among the reasons, PTSD was hard to prove and there was little public understanding of it. The disorder didn’t even have a name until 1980, when the American Psychiatric Association gave it one.
Today, PTSD is poised to become a national epidemic. According to the U.S. Marine Corps, more than 2 million U.S. men and women have served in Afghanistan and Iraq since Sept. 11, 2001. Of those, 793,000 have served multiple tours. The U.S. military has diagnosed at least 40,000 active-duty soldiers with PTSD, and countless others have been diagnosed by private physicians after experiencing problems upon their return home. A 2009 study by the Rand Corporation estimated that 20 percent — or 300,000 — of veterans returning from Iraq and Afghanistan have PTSD.
The symptoms of PTSD range from violent flashbacks, nightmares and anxiety attacks to insomnia, irritability and poor concentration. Many who suffer PTSD feel disconnected, despondent and, often, suicidal. The U.S. Army reported 160 suicides among active-duty members in 2009, and another 78 suicides among reserve soldiers. In 2008, 140 active-duty members and 57 reserve members committed suicide.
Over the last couple of years, a growing number of criminal defense attorneys who represent veterans have become more willing to present PTSD as evidence, though very few have centered their defense on it. In a decision handed down late last year, the Supreme Court threw out a death sentence where evidence of a Korean War veteran’s likely PTSD had not been presented to the jury; in a per curiam decision, the Court ruled unanimously that the sentencing decision of the veteran convicted of murder should have taken into consideration post traumatic stress he incurred during combat. Porter v. McCollum, 2009 WL 4110975 (Nov. 30, 2009).
PTSD’s impact on criminal law is just the tip of the iceberg. As Oregon’s war veterans return home, family law attorneys will increasingly encounter it as a factor in domestic violence cases, divorces and custody disputes. Employment law practitioners also will see a surge in PTSD-related issues, from workers’ compensation claims to expectations of reasonable accommodation under the Americans with Disabilities Act Amendments Act.
And, according to several who work with those suffering from PTSD, the majority of Oregon attorneys are sorely lacking in the training and resources they need to prepare for the coming tsunami of veterans who will need their help.
A New Generation of PTSD
PTSD may not have had a name during the Vietnam War and the conflicts before it, but there were plenty of veterans who suffered its symptoms and consequences, including anti-social behavior, drug and alcohol abuse, broken families, homelessness and suicide.
“What is different in these wars is that soldiers have multiple tours, multiple kills and multiple close calls without a break in between,” said Shad Meshad, president of the National Veterans Foundation and a pioneer in PTSD research. “One incident can cause a person to live with PTSD for the rest of their lives, and these people are experiencing multiple traumas.
“This is something we haven’t dealt with before, and it’s scary because we don’t know what is going to happen,” adds Meshad, a Vietnam vet. “Although those of us with forty-plus years of experience with PTSD have a pretty good idea of what will happen. We’re going to see more homicides, suicides, domestic violence and divorces.”
The economic recession and accompanying lack of jobs exacerbates the problem for veterans trying to readjust to life back home. In addition, the federal Veterans Health Administration doesn’t have the capability to provide essential services and resources to veterans.
“These people have lost their jobs, their families, their minds and, often, their bodies,” Meshad says. “Congress needs to set up mandatory transition programs for soldiers and their families. The programs are too fragmented and segregated as they exist now.”
And, just as the federal government must improve its readiness to care for returning vets, so must legal professionals in Oregon and across the country.
“It’s guaranteed that many lawyers will be thrown a case involving a veteran coming back with PTSD who has been involved in a violent crime. So they need to have an understanding of PTSD and how that violence can just explode out,” Meshad says.
Bratcher Case Sets Precedent
Bratcher’s crime was the murder of Jose Ceja Medina, whom he shot after his fiancée, Celena Davis, told Bratcher that Ceja Medina had raped her. In December, Bratcher was sent to the Oregon State Hospital and placed under lifelong supervision by the Oregon Psychiatric Security Review Board.
Bratcher’s case presented a steep learning curve for both the prosecutor and the defense attorney involved. It was the first murder trial for Grant County District Attorney Ryan Joslin, according to The Oregonian’s coverage of the trial. (Joslin did not respond to interview requests for this article.) Markku Sario, the Canyon City public defender who represented Bratcher, had taken on murder cases before. However, this was the first in which he litigated insanity, and specifically PTSD, as the primary defense.
“Any time insanity becomes an issue, whether it’s PTSD or any other issue, you have to have a diagnosis before you can use it as a defense. In the Bratcher case, it helped a great deal that he had been diagnosed with PTSD prior to the event and that he had been getting treatment for it,” Sario says. “Although the state fought that diagnosis, there really was no issue about that.”
Bratcher was diagnosed with PTSD after serving in Iraq in 2004. His unit patrolled villages around Kirkuk under constant threat of insurgent attacks and roadside bombs. In 2005, Bratcher watched as one of his closest friends was crushed by a Humvee during an accident while out on patrol. Just a few weeks later, a roadside bomb exploded near Bratcher’s Humvee at the same intersection where his friend had been killed.
“It’s important when establishing PTSD to go back and check a defendant’s military record. Find out where he or she has been and what they have seen during their service,” says Sario, who is now working to have Bratcher transferred to a Los Angeles psychiatric facility that specializes in treating veterans with PTSD.
From a big-picture standpoint, he notes, historically this is a good time to litigate veterans’ issues. While most Americans may not favor the country’s current military involvement, there is much more empathy and support for soldiers now than during the Vietnam War.
“There is also a lot more publicity these days about war-related psychological injuries, like PTSD, traumatic brain injuries and so on,” Sario adds. “This war is presenting the country with more injuries….than previous wars, partly because of the nature of it. There is no safe place. These guys go out on patrol and face danger from insurgents. Then, when they go back to their base, they still are rocked by mortar fire.”
In order to survive this kind of urban warfare, military training encourages combat soldiers to immediately eliminate potential threats because there is precious little time to fully evaluate a situation before reacting to it.
“Unfortunately, if you have PTSD, everything is a threat,” Sario says. “If somebody taps you on the shoulder and you’re not expecting it, that’s a very serious threat to your life. And they are taught to respond to those threats in a very aggressive manner. When in doubt, kill it.”
In addition, advancements in body armor mean more soldiers survive explosions and other assaults that once killed those in combat. As they return home, they more often than not have emotional and mental injuries to match their physical ones.
“I guess what surprised me most during the Bratcher trial was learning how prevalent PTSD is in this war. I had always had the idea that out of 100 people in combat, there might be one or two who had significant psychological problems. I really think now that it’s much higher,” Sario says, noting two of his witnesses — Bratcher’s squad leader and platoon sergeant — also have PTSD.
Trouble Comes Marching Home
Portland defense attorney Kathleen Bergland frequently represents veterans, primarily in domestic violence cases. She describes a scenario she sees all too often: A vet comes home and his or her spouse attempts to reestablish intimacy, either physically or by asking questions about their wartime experiences. The vet, not yet prepared for that level of intimacy, responds by acting out inappropriately. The spouse files a restraining order and, if children are involved, the Department of Human Services intervenes.
“Besides getting stuck in a system that is ill-prepared and not designed to handle this number of vets, there are a growing number of vets who are losing their families and their children because of the way the system mishandles it,” she says.
Bergland began working with vets about four years ago, when she took on a death penalty case involving a veteran who had come home and killed his wife. Bergland’s team was the second set of attorneys to defend the accused because the first refused to introduce PTSD as a mitigating factor.
At the time, Bergland knew little about PTSD, and finding witnesses who could accurately describe its causes and symptoms was a challenge. She met Robert Stanulis, a Portland forensic psychologist who specializes in PTSD, and often relies on him for expert testimony. Both Bergland and Stanulis say they have seen an increase in clients with PTSD.
Stanulis, who testified for the defense during the Bratcher trial, says Fort Hood in Texas already has seen a 27 percent increase in domestic violence involving veterans. The U.S. legal system handles most domestic violence cases according to the Duluth Model of intervention, which doesn’t take into account PTSD or any other mental and emotional issues combat veterans face, he says.
“In the majority of military cases, the veteran isn’t seen as a wounded warrior but as a batterer who needs to be separated from the family,” Stanulis says, noting that while men are most commonly perceived as the aggressors, studies show female vets are just as likely to become violent.
“And the worst thing about all of this is that we haven’t even seen the really bad cases with people who are on their fourth or fifth tour,” Stanulis says.
Among the characteristics that set this generation apart from veterans of previous wars, Stanulis adds, is their rapid descent into homelessness.
“The big change is that this era of veterans is becoming homeless within a matter of months rather than the Vietnam vets, who became homeless over several years.”
William “Bud” Brown, an Oregon sociologist who specializes in criminal behavior by vets, says his 2007 survey of homeless people in Marion and Polk counties resulted in some disturbing findings.
“I ran across six homeless women who were Iraq vets. All six of them were married with children before their service, but they had all abandoned their marriages and families when they got home,” Brown says. “The primary reason was that they could not make the adjustment from being a female solider and then go back to making brownies and doing laundry.”
Brown, a Vietnam combat veteran and former Army drill instructor at Fort Lewis, says that while the causes and symptoms of PTSD are the same for most vets, this generation of veterans is facing one major difference.
“The more tours you do, the more amplified your behaviors are going to become,” he says. “These combat veterans who have PTSD may not necessarily act out when they are in the military, but they are going to pay the price for the frequency of the tours they are doing when they come home.”
In his work with veterans of the Iraq and Afghanistan wars, he explores four basic elements of their lives: Their pre-military histories, including hobbies, relationships and drug and alcohol use; their military training experience and how it impacted them; their deployment and level of combat experience; and their circumstances when they return home, such as whether they remain in the military or are discharged.
“I look at those histories and what I find in virtually all of them is that there’s no criminal history or juvenile delinquencies,” Brown says. “Almost all of these kids are totally clean until several months after they get out of the military. So, you have to wonder, ‘Well, my goodness, if they were prone to becoming a criminal, why did it take so long?’”
PTSD in the Workplace
As more U.S. servicemen and women return home, employers are likely to see a growing percentage of their employees exhibit symptoms of PTSD, which will include difficulty integrating into the workforce. That creates two primary legal issues for employers, says Clay Creps, a shareholder with Portland’s Bullivant Houser Bailey.
“The first is whether PTSD is a covered disability under the Americans with Disabilities Act. And the answer to that question is that, yes, I think it probably is,” Creps says.
The ADA Amendments Act, which took effect in January 2009, broadened the definition of what constitutes a disability, making it easier for employees to claim they have a disability. While the courts previously ruled PTSD was not a disability, that is likely to change because of the expanded federal disabilities act, he says.
The act’s coverage of PTSD also will require many employers to rethink how they enforce employee behavior as outlined in their company’s civility or mutual-respect codes.
“They are going to want to apply it in a strict sense and say, ‘Hey, everybody get along.’ But under the ADA it may be that an individual who has PTSD gets an exception to the basic civility code. They don’t have to get along with people the way the employer may want them to,” Creps says.
“The issue then becomes, how does an employer accommodate an individual who has trouble interacting with others in the workplace? And when does an employer get to say, ‘Enough is enough’?” he adds.
A 2007 ruling by the 9th Circuit Court of Appeals could be a harbinger of things to come. In Gambini v. Total Renal Care, the court ruled that an employer cannot terminate or otherwise discipline an employee for misconduct if the misconduct is caused by a disability. There is some gray area regarding whether that extends to verbal threats and aggressive behavior on the job. If so, employers face the difficult task of accommodating such behavior while also protecting employees from the risk of potential violence at work.
Creps notes that while not every war veteran with PTSD should be considered a ticking time bomb, it is an issue that needs to be addressed as a subset of workplace violence.
“This is cutting-edge stuff, and this is where there’s a need for education. And frankly, I’m not seeing many resources that are helpful and available to attorneys on this topic,” he says.
An Uphill Battle
Bergland and Stanulis agree that much more training about military-related PTSD is needed for law enforcement officers, DHS officials, attorneys and judges.
“We have an uphill battle with judges saying, ‘Well, what is the relevance of PTSD in this case?’ ” Stanulis says. “And, more often than not, prosecuting attorneys don’t even ask if the guy was in the service.”
Bergland says even defense attorneys are often remiss in gathering all the necessary facts about their clients who are war veterans. “We don’t know how to talk to them, and we alienate them by talking to them in the wrong way.”
Brown, a Vietnam veteran, says it often takes him 10 or 12 hours of casual conversation before he starts to earn a younger veteran’s trust, even though he speaks their language. His advice to defense attorneys is twofold.
“If you’ve got someone who comes into your office, ask them if they are a vet. If they say yes, pursue that with a follow-up question about their service,” he says. “And, the worst thing you can say is, ‘Thanks for your service to your country.’ That makes them cringe, particularly if they’ve got PTSD or (traumatic brain injury) symptoms. It’s better to say something like, ‘Wow, I’m glad you made it back.’”
In order to provide further guidance for lawyers handling cases involving veterans, Brown has joined Stanulis, Bergland and Washington attorney Randal Fritzler in writing a book called Veterans in the Criminal Justice System: A Manual for the Legal Professional. The book is scheduled to be published by November to coincide with Veteran’s Day.
A veteran’s perspective has been immensely helpful for Noah Horst, staff attorney for Metropolitan Public Defender Inc. in Portland. He has handled several cases involving veterans with PTSD, and says one of his greatest assets is Gary Gedrose, a fellow attorney and Vietnam veteran who has offered to help out on cases involving veterans’ issues.
“As a defense attorney, part of my job is to present the facts that explain someone’s behavior and what caused it. If somebody is not in their right mind and is having a flashback, there really is no reason to prosecute the guy,” Horst says.
During its special session in February, the Oregon Legislature passed Senate Bill 999, taking a major step toward acknowledging that active-duty soldiers and veterans would benefit more from treatment than jail time. Gov. Ted Kulongoski signed the bill into law on March 4, allowing district attorneys to recommend a diversion program for current and former military members accused of crimes rather than prosecuting them. Under the new law, if the accused completes the program successfully, the charges would be dismissed. (See sidebar at page 21 for more on SB 999’s journey into law.)
The ultimate solution, however, rests in providing essential services for returning veterans so they have the tools to cope with PTSD, Horst says.
“We’ve got vets coming home who have some pretty serious mental baggage, and our government isn’t doing a good job of helping them out, in my opinion,” he says. “Every vet should have mental health treatment when they get home, and they aren’t getting that.”
ABOUT THE AUTHOR
Melody Finnemore, a freelance writer based in Vancouver, Wash., is a frequent contributor to the Bulletin.
© 2010 Melody Finnemore