Using PTSD as a Defense

Using PTSD as a Defense

By Seth Robson, Stars and Stripes

When Sgt. Sean M. Beveridge faced a court-martial last year for attacking German civilians with a retractable club in Amberg, defense attorneys and witnesses pointed to Beveridge’s service in Iraq, which they said left him with post-traumatic stress disorder. Beveridge was severely wounded and had seen his buddy blown up when a suicide bomber attacked a chow hall in Mosul, killing 22 people on Dec. 21, 2004.

His father testified that Beveridge returned from Iraq in 2005 a changed man.

"He had a lot of trouble sleeping … drank more than he had before. He had some, you know, not fights because he wasn’t in a condition to fight but, you know … he had some incidents," Iain Beveridge said, according to transcripts of the trial.

"There was one incident where he stuck up for somebody and, you know, he got punched in the eye and couldn’t do anything about it because he called me late at night and he was getting taken to the hospital for stitches … we tried to encourage him to get help."

More and more, post-traumatic stress disorder is being introduced as a factor in the defense and sentencing of military members during courts-martial, military attorneys and civilian legal experts say.

David Court, a civilian lawyer who’s defended U.S. troops for 30 years, said a defense counsel would be derelict not to ask a client about PTSD these days due to the number of U.S. personnel worldwide who have deployed to war zones.

"The more people are in those environments the more likely they are to have some kind of effect. Most military lawyers, when they get a case and they find out their client has been downrange, they ask about it," he said.

Since October 2001, about 1.6 million U.S. troops have deployed to the wars in Iraq and Afghanistan,
according to a recent RAND Corp. study.

Nearly 20 percent of those returning — 300,000 in all — reported symptoms of PTSD, RAND said of the study’s findings, released in April.

Only slightly more than half have sought treatment, the study found.

Beveridge’s family said he did not get the help he needed to deal with his PTSD.

At his May 2007 trial, he told jurors he still suffered nightmares and insomnia.

"I feel withdrawn a lot of the time and it’s constant problems between my wife and I. I just feel alone even when she’s there," Beveridge testified.

The 3rd Squadron, 2nd Stryker Cavalry Regiment soldier pleaded guilty to kicking a German civilian in the head during the brawl. He also pleaded guilty to striking another member of the regiment, Pfc. Collin R. Warden, repeatedly in the face while he was unconscious, in a separate incident.

"When I get put in stressful situations, sometimes I just, well, the two things I pled guilty to," Beveridge testified. "That’s not how somebody should react to a situation like that," he said.

Such testimony has become an attractive defense in recent years, said Liza Gold, associate director of Georgetown University’s Program of Psychiatry and Law.

"It’s cut and dry; it’s almost like a brand," she said. "Plaintiffs and defendants like it because it implies causation, and it seems to be something that any of us developed if we were put in that situation."

Eugene Fidell, president of the National Institute of Military Justice, said no studies have been completed on whether PTSD arguments have become more frequent in courts-martial in the last few years, but he has seen more lawyers broaching the topic in court.

Similarly, there are no statistics on whether the use of PTSD as a defense has reduced the sentences or resulted in more acquittals.

One attorney said that the practice may have more success in military than civilian courts.

"My hunch is that military juries will be sympathetic to it in a way that civilian juries won’t; they’ll be [more] familiar with what deployment is like," said Matthew Freedus, a former Navy judge advocate who now is a partner with the law firm of Feldesman Tucker Leifer Fidell.

Defense lawyer Ed Switzer, a retired Marine who handles civilian and court-martial cases, said attorneys can use PTSD to show diminished capacity or undue stress, but often only in conjunction with other factors.

"It’s not a complete defense alone," he said. "The courts have really tightened up the rules on diminished capacity in recent years."

Often, he said, PTSD can be a mitigating factor with military jurors.

"If there is an environment that adds to the stress level, they’re going to recognize that. It can turn into reasonable doubt."

In recent courts-martial in Europe and the Pacific, PTSD has been introduced as a contributing factor in the crimes or a reason to mitigate sentences.

Airman 1st Class Travis Martens was sentenced to 3½ years in South Korean prison in October, after being convicted of beating and robbing a taxi driver. His attorney, Jin Hyo-geun, argued that PTSD-induced insomnia led to the crime.

In a 2007 attempted rape case, a judge ordered psychological testing on Sgt. Anthony Q. Basel after the same attorney, Jin, said the soldier suffered from PTSD. Basel was sentenced to 3½ years in prison but the case was later thrown out on appeal due to lack of evidence.

Jin says he thinks the judge didn’t believe Martens’ PTSD was severe enough; however, the PTSD defense helped Basel.

"The judge took this fact into consideration when deciding the sentence," Jin said. "It helped mitigate guilt in the court.

"So I think it’s a half-and-half chance. If you can present strong and reliable evidence of your mental illness, it helps."

In one case on Okinawa, a Marine was found not guilty of all but two of 14 charges of fraud and lying to his commanding officer. Sgt. Maj. Arthur Simpson, 43, of the 7th communications Battalion, was charged with racking up more than $16,000 in fraudulent travel expenses for a trip to San Diego, after lying to his commanding officer that he and his family needed to see a specialist to remove a noncancerous mass from his sinus cavity.

Simpson’s attorney argued in the May 2008 trial that post-traumatic stress from a tour in Iraq led Simpson to overreact to his medical problem. In the end, Simpson was found guilty of two charges of misusing his government travel card, but the jury sentenced him to no punishment.

In Naples, Italy, a mental health expert argued that a sailor diagnosed with PTSD was not clinically insane on the night he allegedly choked his wife. Petty Officer 1st Class Charles Flanning returned to Naples and exhibited signs of PTSD after serving in Iraq. Four months later, Flanning was charged with aggravated assault after attacking his wife.

A jury convicted Flanning of a lesser charge of assault consummated by battery and sentenced him to 89 days’ confinement and reduction in rank. The sailor lost his job as master-at-arms, but was allowed to stay in the Navy.

Lt. Col. David Crawford, the Army’s chief of Trial Defense Services–Europe, said the 20 military lawyers he supervises train to defend soldiers with medical issues arising from service in a combat zone.

"Our focus is on making sure that any soldier charged with misconduct and there is associated issues stemming from the war zone, be it PTSD or TBI (traumatic brain injury) or other disorders… we bring these issues to light for the fact finder," he said.

Typically soldiers with PTSD get in trouble for things such as assault or disobeying orders or disrespecting a superior, he said.

Commanders are taking PTSD into account when they decide whether to proceed with a court-martial, added Crawford, who has been involved in military justice since 1992.

"There is a push from the Army for leaders to be aware of PTSD and TBI. Commanders recognize these issues are relevant and these types of injuries are occurring," he said.

Crawford said he’s not aware of any cases where a soldier’s PTSD has resulted in a not-guilty verdict but said there are cases where it has led to a reduced sentence.

In Beveridge’s case, Lt. Col. Mary S. Moore, officer-in-charge of inpatient mental health service at Landstuhl Regional Medical Center, told the court she’s worked with veterans of Korea, Vietnam, Desert Storm, Somalia, Operation Enduring Freedom and Operation Iraqi Freedom for more than 20 years.

Asked by defense counsel — "Can criminal activity manifest itself as a symptom of PTSD," she replied: "Yes, due to the angry outbursts, the aggression, the startle response, the anxiety, the fear involved."

Beveridge was convicted in the attack of another soldier and he and two other soldiers were convicted in the Amberg beatings. He was reduced in rank to private, ordered to forfeit $867 per month for eight months and confined for six months.

Reporters David Allen, Leo Shane and Erik Slavin contributed to this story.  Original Story Posted at http://www.stripes.com/article.asp?section=104&article=56879