“Men and women who, instead of languishing behind bars, are going back to school, working, raising children, and living as civic assets. Veterans have fought for our freedom—shouldn’t we fight for theirs?”
—The New York Veterans Defense Program
The Adventure Begins. . . .
You and your crew just flew in from Afghanistan after more than a year of extended hell deep inside Hades itself: 17 firefights and close-in knife fights, 15 dead, 33 wounded. One Distinguished Service Cross, two Silver Stars, twelve Bronze Stars, eleven Distinguished Flying Crosses, sixteen Air Medals, eighteen Army Commendation Medals with V device, 48 Purple Hearts.
Courage. Bravery. Selfless service. Sacrifice. Pain. Anguish. Broken and torn limbs. Burned faces. The cries of the fallen.
All these things haunt you upon return to the world, a place you grew up and learned to ride a bike, skip school, go on your first date, graduate high school, and sign your life away to Uncle Sam for four years. No one looks the same as before. Nothing appears normal. Everything is sort of . . . out of phase with you and your thoughts.
Mom and Dad mean well but they drone on and on in some language you don’t comprehend. Words are meaningless. Their smiles, counterfeit.
Sleep is not an option. Like having drunk a pot of coffee after a fifth of vodka: a wide-awake drunk. You stumble around the once familiar house, now looking like the Tomb of the Unknown Soldier.
Pills from your buddy. What were they again? Valium? Opiate something? Whatever they are, they pair well with vodka.
Endless nights out, stumbling drunk in and out of taverns and bars, meaningless sex with strangers, waking up in the bushes.
Where’s my car? Where the fuck did I leave my car?
You mean the old Ford Mustang, the one you and Dad rebuilt before you headed off to Ft. Benning for Basic? It’s now wrapped around a tree just outside town.
Sheriff’s Deputies in full battle gear knock on your parents’ door, guns at the ready ‘cos they heard a veterans lives here and he’s got special-operations experience.
It was a long night, wasn’t it? You woke up on a cold floor and the first thing you see is a series of off-white, vertical bars that run from the floor where you lie all the way up to the ceiling. You reach out and touch the cold steel, painted over a hundred times because someone like you tried to scrape off the old paint and rust. Then it dawns on you: I’m inside a fuckin’ jail cell.
Still drunk from last night’s binge with people you didn’t know and probably won’t see again, you rise and say something to a nearby guard, “Where am I?”
“You’re in jail, son. Sit down ‘til we call your name.”
You might be drunk but you’re not stupid: you do as ordered and sit down until the guard yells your name.
Shuffling along with the other inmates, you advance to a room with Plexiglas shields that separate you from the judge and lawyers. Your head drops, the only thought falling out: “Awww, shit.”
This young veteran is one of thousands of our beloved veterans who return home from war—Vietnam, Gulf, Iraq, Afghanistan, Africa—have difficulty adjusting to civilian life, get into trouble with the law, and find themselves behind bars facing a felony conviction and long stretch in prison.
Worst of all, they feel they have no legal resources to assist them in fighting the system they signed on to protect and preserve for all Americans.
Unfortunately, this is how many veterans think: they have no legal resources when they get into trouble with the law.
The Veterans Treatment Court
All of us here at The VABA would like to you know that you are not alone and you do have legal resources to assist you in your time of need.
One of those little-known legal aids for veterans is the Veterans Treatment Court (VTC), which operates out of traditional courts in many parts of the US. The first one started in New York, after a group of Vietnam veterans got fed up seeing so many veterans getting in trouble with the law and filing in, many at a time, on their way to jail or prison.
According to the VA, “the VTC model is based on the drug and mental health courts that have existed for nearly 30 years. Unlike traditional criminal courts, the primary purpose of a VTC is not to determine whether a defendant is guilty of an offense, but rather to ensure that they receive treatment to address unmet clinical needs.
“Several factors distinguish VTCs from drug and mental health courts, most notably their focus on veteran defendants, and the involvement of volunteer veteran mentors who provide non-clinical support to veteran participants. VTCs reflect the communities that choose to start them, and there is considerable variation among the courts in both participant eligibility criteria and operational processes. But they all have the same goal: ensure a veteran receives necessary treatment for any health issues and is treated with compassion by the court system.
“The VA’s role in VTCs is largely administrative and it does not fund them. VTCs are initiated, funded, and operated by local governments. However, VA directly supports VTCs through the participation of its Veterans Justice Outreach (VJO) Specialists as members of VTC treatment teams, and through the health care services it provides to veteran defendants, most of whom would otherwise receive care at county expense. The Specialists assess veteran defendants’ treatment needs, link veterans with appropriate VA treatment services, and (with the veterans’ permission) provide regular updates to the court on a veteran’s progress in treatment.
“VA’s role in a VTC is limited to the treatment-related aspects of the court process; VA does not decide which veteran defendants should be admitted to a VTC or define the level of offenses (e.g., misdemeanor vs. felony) that a VTC will accept. VJO Specialists work closely with justice system partners as they plan new VTCs, informing the partners about VA services that would be available to veterans (defendants) locally or regionally.
“However, as with all VJO-related services, the Specialists do not advocate specifically for the use a particular model or set numerical targets for desired VTC growth. Instead, they help communities plan to meet the needs of justice-involved veterans using approaches that best fit local circumstances.”
“For more information on VTCs, contact Katie Stewart, National Coordinator, VJO; Katharine.Stewart@va.gov, (202) 461-5863; Contact information for each VJO Specialist: http://www.va.gov/homeless/vjo.asp”
New York’s Veterans Defense Program: Setting The Example For Others To Follow
The State of New York has always been progressive in supporting its veterans. The Veterans Defense Program (VDP) has been assisting veterans for many years and has instituted novel programs to mitigate the myriad health and legal issues many veterans face. According to its latest annual report, VDP “provides all manner of training, support and legal assistance to veterans and servicemembers in New York State's criminal and family court systems.
“The first of its kind in the nation, the VDP was launched in response to a growing crisis in the number of veterans with service-related mental health illnesses who were lost in the criminal justice system.
“The Veterans Defense Program is a project of the New York State Defenders Association (NYSDA), a statewide non-profit organization working to improve the quality and scope of publicly supported legal representation for people who cannot afford a lawyer.”
From the VDP’s 2018-2019 Report:
“Suffolk County Judge John Toomey was a ‘regular trial judge’ when he noticed an increase in veterans coming back from Iraq and Afghanistan ‘and meeting at the crossroads of the criminal justice system,’ due to alcohol abuse, drug abuse, PTSD and traumatic brain injury.
“Because Toomey is a Vietnam veteran, another judge asked him to start a VTC. He said he was allowed to set it up any way he wanted. He now has twelve mentors for the veterans, and he knows all his veterans by name, their crimes and their issues, he said.
“Toomey said running a VTC doesn’t cost anything: he simply adjusts the court docket for veterans, and the mentors are volunteers. He thinks there should be a VTC in every county.
“Because each VTC can be set up to respond to the local landscape, each has different characteristics. Toomey thinks it’s essential to take care of the PTSD before tackling drug or alcohol dependence. His county has a 30-day in-house PTSD program where they can refer the veterans.
“ ‘We take good and bad paper,’ Hirsch said, referring to the terms used for honorable and less-than-honorable discharges, so her court sometimes has to find service providers outside the VA. When veterans come in with ‘bad paper,’ the court works to find them medical insurance, medical providers and other services. Then they work to find the underlying issue: drugs, alcohol, TBI, PTSD.
“She said the hardest thing for her court can be locating the veterans. They can be ashamed and reluctant to admit to being a vet. She accepts veterans in her court at any point in the judicial process (i.e., transfers from other judges), but says it’s key to connect them with services early. The veterans in her court are all screened for trauma, and many have it. In addition to Iraq and Afghanistan, she sees lots of Vietnam and Gulf War veterans, who have different needs, many related to aging.
“In addition, women veterans have different issues in that many have military sexual trauma, Hirsch said, and her court now has women vet mentors they can call on. Ken Rosenblum, retired director of the Touro Law Center Veterans’ and Service members Rights Clinic and a Vietnam vet, who works with veterans, said Suffolk County also used to have trouble identifying veterans in the system. But police now ask the suspect if they have served in the military, which has produced more positive results than asking, ‘Are you a veteran?’ Probation officers also ask the question, which helps them get help to more veterans.
“Another issue that has come up is with foreign veterans. The father of an Israeli veteran asked if his son could go to Toomey’s VTC. Toomey said yes, knowing they would have to go to agencies other than the VA for assistance. Most VTCs do not take foreign vets, and usually refer them to a different treatment court, Russell said.
“Veterans may tell their mentor something they’ve never told anyone else, Rosenblum said.
He interviews and trains mentors, and goes over the docket with them in a coffee shop, where Toomey often joins them, he said. The mentors get regular feedback from the judge, stand in the courtroom with the veteran and become familiar with court procedures.
“For veteran mentors connecting to the veterans in the program, Rosenblum has found that combat status transcends age, race and even branch of service, but not yet gender.
“Mentors in Russell’s court fundraise so that they have more ways to connect vets to resources.
“Hirsch said it helps if the mentors have a flexible schedule or are retired, so they can be available during the day.
“Rosenblum said it helps to have mentors with an understanding of PTSD and what’s available to treat it. Treatment goes better when there is a shared knowledge of the condition and how to manage it, he said.
“In Russell’s Buffalo VTC, two legal aides help with any civil legal issue the vet has. They also have veteran ‘pods’ in the jails, staffed by veterans, who support one another.
“Veterans come before Toomey every two weeks during treatment and he comes to knows each of them. He stresses that they need to be self-motivated to succeed, but lets them know that if they fall he will help pick them back up.
“Timothy Thayne, a former defense attorney and now assistant DA in Binghamton, N.Y., said you have to expect relapses, but that they just get the vet help again. The key is for the veteran to be honest about it, he said. Lying about it can bring a sanction.
“The VA and the Institute of Medicine report that veterans with mental health conditions are at significant risk of arrest as their trauma symptoms may lead them to criminal conduct. PTSD and TBI are linked to incarceration, antisocial behavior, and violence among veterans. The VA found the association between PTSD and violence is especially strong among post-9/11 veterans.
“Attorney Brock Hunter, a recognized national expert on veteran defense, summarized the situation, saying, ‘We are fighting wars on the backs of volunteers and a smaller military and we recycle the same troops back over and over, with many tours of duty. PTSD rates climb with each additional tour. The military culture is one of service and sacrifice: you deal with your problems privately and don’t complain or ask for help. Vets are badly treated and ignored in the
criminal justice system. We need to give veterans support when they fall, particularly when they fall into the criminal justice system.’
“Left untreated, the emotional wounds of war can have a dramatic and destructive impact on veterans,” said Melissa Fitzgerald, Justice Director of the national Justice for Vets. “If we don’t intervene at the critical point of arrest, we risk losing veterans to the system forever. We can hold accountable veterans who commit crimes while connecting them to the benefits and treatments they have earned.
“Justice-involved veterans often do not have the funds to hire an attorney and are represented by public defenders. Public defense attorneys are rarely trained to adequately represent veterans who suffer from the invisible wounds of war, or to translate the combat experience of their clients to explain resulting criminal behavior. Approximately 7% of Americans are veterans. Thus, it is unlikely that judges, attorneys, and jurors are veterans who understand the military experience.
“Running the VTC is “the greatest thing I’ve ever done as a judge and lawyer,” Judge John Toomey said, and noted that his court has a 95 percent success rate. He spoke for the other judges when he called VTCs a ‘game changer.’ ”
VA And Private Free Legal Services Clinics
The VA provided free legal clinics for veterans until the pandemic hit. It now has call centers that provide some legal aid, but it admits that it replies more on private entities to pick up the slack during covid. Please look over the VA’s guide to free legal clinics. When the pandemic has run its course, these clinics will reopen: https://www.va.gov/ogc/docs/LegalServices.pdf
To The Rescue: The Department of Justice
VTCs also receive assistance from the Department of Justice, which has several programs specifically for servicemembers and their families and for veterans. DOJ pursues cases against those who take unfair advantage of veterans and servicemembers, using its Servicemembers and Veterans Initiative: https://www.justice.gov/servicemembers.
The DOJ enforces various laws that protect our beloved member of the US military and veterans: Uniformed Services Employment and Reemployment Rights Act ("USERRA"), Pub. L. No. 103-353, 108 Stat. 3149 (codified in scattered sections of 38 U.S.C.), voting rights by enforcing the Uniformed and Overseas Citizens Absentee Voting Act of 1986 ("UOCAVA"), 52 U.S.C. §§ 20301-20311, and financial security through the Servicemembers Civil Relief Act ("SCRA"), 50 U.S.C. §§ 3901-4043.
Servicemembers who believe their rights under USERRA, UOCAVA, or the SCRA have been violated will be able to file a complaint with the Department of Justice:
Silas Darden, Deputy Associate Attorney General, Director of the Servicemembers and Veterans Initiative
Andrew Braniff, Acting Director
Nicole Siegel, Assistant Director
U.S. Department of Justice
Civil Rights Division
4 Constitution Square
150 M St. NE
Washington, DC 20530
202-307-SCRA (7272)
Fax: (202) 514-1005
servicemembers@usdoj.gov
The American Bar Association Steps Up
Not surprisingly, the American Bar Association supports servicemembers and veterans via its guide, The American Bar Association Legal Guide for Military Families, a supplement to the popular ABA Homefront website, ABAHomefront.com, provides state-by-state legal information for servicemembers and veterans. https://www.americanbar.org/products/inv/book/213418/
The book is the complete resource for servicemembers, veterans, and their families. This guide will help all servicemembers clarify their legal issues, understand the options, and locate assistance. Topics are presented in an easy-to-read format and every chapter includes a resources section with phone numbers, websites, and contacts to help servicemembers find answers and move forward:
- Working with a Lawyer
- Family Law
- Debt and Finance
- Housing, Landlord/Tenant Issues, and Real Estate
- Motor Vehicle Sales, Finance, and Repair
- Estate Planning and Insurance
- Health Care Law
- Employment and Re-employment
- Discharge
- Disability Issues
- Veterans Benefits
A Veteran’s Case Study from the New York Veterans Defense Program
Brad Wilcox was a National Guardsman who served in Afghanistan in 2013 and 2014. He was initially charged with second-degree criminal possession of a weapon, a charge carrying a minimum of 3 . years in prison. The District Attorney was sympathetic to Brad’s military history
and offered that minimum sentence in return for a guilty plea. But this was before the VDP became involved and the full story was then told of his exemplary and traumatic military service and the resulting PTSD.
At 17 years old, he volunteered to join the National Guard and was assigned to a maintenance unit as a mechanic. When he was 19 years old, he again volunteered to fight in Afghanistan and was deployed to the Bagram Air Base in the Parwan province. He was rocketed his first evening in Afghanistan and many times after that, and described one harrowing experience.
“I had just drifted off when the bombardment started. This wasn’t out of the ordinary, hell, it happened every night. But this one was different. It was close. I felt this immense pressure and then total darkness. At first I was confused as I began to regain consciousness. Because I was laying on my back when this first round hit, but when I woke up I was face down on the concrete floor … two beds over. My ears are ringing and my head’s pounding. As I tried to push myself up, I felt someone push me back down. It went dark again … when my hearing finally returns I can hear that the bombs are still dropping around us. A battle buddy is laying over me trying to use his armor to protect us both. He is yelling, asking if I am okay. I nod as he checks me: bleeding.
“He finds out I hit my head. He helps me with my body armor and helmet, hands me my rifle, and makes a run for the bunker. We get there and it is full. People are already crouched down outside the bunker. We ask, “What about the other bunker on this side? “It’s full too!” Someone shouted as we took off running for the second set of bunkers on the other side. As we run past the end of the tent, another round hits. I hear shrapnel zip past my head .… After about an hour and a half, we got the all-clear and went back to bed.
“The next morning, we got put on black out. No communication home. At that moment, we all started looking around. We had all our guys, but the company next to us was not so lucky. Six Killed in Action (KIA). We’d only been in Afghanistan for a month and already 6 KIA.”
Brad often went on convoys outside the base to recover damaged vehicles. He was frequently under enemy fire and often witnessed first-hand the death of Taliban fighters from American attack aircraft. He also had to kill at close range. He earned a Combat Action Badge for his bravery, the Afghanistan Campaign Medal, and an Army Commendation Medal.
As so often is the case, when he returned to the United States, he had difficulties reintegrating and suffered from PTSD. He reported that there was little debriefing or counseling in the aftermath of his traumatic service. The VDP brought his story to life before the Court and the District Attorney, which resulted in a disposition wherein Brad would serve no jail time, and would receive treatment from the Veteran’s Administration (VA) while on probation.
His Legal Aid Defender had this to say about the VDP’s assistance: “Thank you. This disposition is all because of the VDP. You saved a veteran from state prison. He definitely would’ve had a violent felony conviction and you saved him from that. Thank you on behalf of all the veterans you help. You do amazing work.”
The US Supreme Court Speaks Out In Favor Of Veterans’ Legal Rights
The VDP is helping public defenders to fulfill their constitutional obligation to investigate their client’s military service and any related mental health issues that may have contributed to their offense, and to seek mitigation.
In Porter v. McCollum, 558 U.S. 30 (2009), the United States Supreme Court ruled that defense
attorneys must adequately investigate their client’s military background to include battle-borne
mental health issues, such as PTSD, and reasonably present such evidence in mitigation.
Although the defendant was a decorated Korean War veteran, his court-appointed counsel did not present evidence of his military service to the jury, and the Court reasoned this evidence might have swayed the jury. The counsel was found ineffective in this per curiam decision.
The Supreme Court emphasized: “Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.” (Porter v. McCollum, 558 U.S. 30, 43-44 [2009].)
The VABA Stands By To Assist Veterans
We at The VABA recognize that veterans are unique individuals who are often called upon to do unspeakable acts against an enemy, and therefore require special treatment and attention upon returning home.
Providing valuable resources to veterans and their loved ones is our prime mission. We invite all veterans and family members to join our family so we can grow stronger and provide needed support to each other.
We salute you!
AUTHOR: Bo Riley reports on issues of interest to veterans and active-duty personnel. He’s a former Army Ranger with the 1st Ranger Battalion, 75th Ranger Regiment, and lives in the Tampa Bay area.
0 Comments