No remedy for our veterans

During the 1960s and 1970s, people insulted and degraded our soldiers. Service members in airports were spit upon. In our current wars, service members enjoy applause when traveling in uniform. It is obvious that as a society we've learned a lot since Vietnam. While the malady is as old as war itself, before current times, we simply called it a soldier's heart, shell shock or battle fatigue. We did not acknowledge Post-traumatic stress disorder as a disabling psychiatric injury until 1987. PTSD is now recognized as a human response to trauma that is beyond the capacity of a particular individual to manage. It may result from one catastrophic event, a barrage of traumatic events, or constantly performing actions that run counter to one's moral or ethical beliefs.

Largely based on World War II studies finding the majority of soldiers in war do not ever fire their weapons because of an innate resistance to killing, Lt. Col. Dave Grossman wrote "On Killing: The Psychological Cost of Learning to Kill in War and Society" (Little, Brown and Company; Back Bay Books, 1996). Grossman points out there are great psychological costs on combat soldiers. He says that at the moment of truth when they could and should kill the enemy, the vast majority of combatants have found themselves to be conscientious objectors. Thus, in training our post-World War II soldiers, conditioning techniques designed to enable killing in the modern soldier have been utilized. Grossman's book says one researcher found a 95 percent firing rate among American soldiers in Vietnam as compared to estimates of only 15 to 20 percent firing at the enemy during World War II.

Some of our warriors are able to emerge unscathed from the process of overcoming their natural aversion to pointing a weapon at another human being. But not all of them. Often confused and muddled upon return to civilian life, some find themselves sideways with the law. California now stands ready to support its troops. None of us want to see more veterans standing at freeway off-ramps looking tattered, disheveled and pitiful with a tin cup in hand.

The California Legislature has been at the head of the line in applying what we've learned to help troops make their way back to productive civilian lives. Apparently recognizing that today's military selects those with little or no criminal record, one statute states it is in the interests of justice to restore veterans to the community of law abiding citizens. Penal Code Section 1170.9(h)(1). From the first moment service members or veterans appear in any arraignment court in California, the court "shall inform the defendant that there are certain provisions of law specifically designed for individuals who have active duty or veteran status and who have been charged with a crime." Penal Code Section 858(d). Several statutes provide for a kinder, gentler approach to a service member or veteran who committed a crime and "may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her service." Penal Code Sections 1001.80, 1170.9 and 1170.91. But criminal defense lawyers are not always informing their clients of the benefits available under these statutes. Unfortunately, when the service member or veteran is not well represented, there may be no recourse for them under our current legal malpractice laws.

Competing Public Policies

Statutes beneficial to service members and veterans usually involve long periods of counseling and reporting to probation officers. These conditions do not easily fit into the way criminal defense lawyers usually conduct their practices. Consequently, these veteran-friendly statutes are often being ignored by counsel.

The logical course for clients whose lawyers don't adequately advise and represent them is the good old fashioned tradition of suing for malpractice. But there's a problem with that option for veterans. Suing a criminal defense lawyer for legal malpractice requires a showing of actual innocence.

In Wiley v. County of San Diego, 19 Cal. 4th 532 (1998), the California Supreme Court held that for reasons of "policy and pragmatism," when a former criminal defendant sues for legal malpractice, actual innocence is a necessary element of the malpractice cause of action. In Wiley, a year after the criminal defendant was convicted of causing serious bodily injury to the victim, he filed a petition for a writ of habeas corpus because he discovered a trial witness lied. He also produced evidence his criminal defense lawyer was negligent in searching for other witnesses. Eventually his conviction was reversed and the prosecutor declined to retry the case. Wiley brought a civil action for legal malpractice against his criminal defense lawyer and a jury awarded him $162,500. The case made its way to California's highest court. Because allowing a criminal defendant to pursue a legal malpractice case would permit a defendant to profit from his or her own wrong, the California Supreme Court held permitting a former criminal defendant to sue a criminal defense lawyer for malpractice was against public policy absent proof of actual innocence. The court explained that only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury.

Criminal statutes beneficial to service members and veterans were passed years after the Wiley decision. These current statutes assume the service members or veterans defendant committed crimes, but did so while suffering from some problem incurred while serving their country. The public policy clearly implied or actually stated in the statutes is paying back those who served by providing them intense mental health treatment. The goal is to help guide these defendants back to the good citizens they were before they served in the military.

If They're Guilty, What Difference Does It Make?

Incorporating former service members into the job market is important to all of us. The California Legislature placed some key provisions in the current veterans' statutes to keep them employable.

When those who served in Iraq began returning home, the country's current appreciation of service members and veterans apparently spurred the California Legislature to put some muscle into criminal laws to benefit service members and veterans looking for jobs. The primary statute provides restorative relief to veterans. Penal Code Section 1170.9. While it requires the service member or veteran to suffer a conviction before receiving the valuable mental health treatment, it also permits the court to dismiss the criminal case and then seal both the arrest records and all records of conviction upon successful completion of the program. Penal Code Section 170.9(h)9(4)(D). The icing on the cake, however, is that a dismissal under this statute relieves the veteran from an obligation to disclose the arrest, the conviction or the dismissed action "when information concerning prior arrests or convictions is requested to be given under oath, affirmation, or otherwise." Penal Code Section 170.9(h)9(4)(C). Thus, a veteran's employment prospects are not affected despite the fact that he or she committed a crime. Veterans are even permitted to deny an arrest or conviction under oath, a handy tool when looking for a job.

A few years ago, the Legislature passed a diversion statute for veterans, permitting misdemeanant service members and veterans to avoid not only convictions but prosecutions as well. Penal Code Section 1001.80. Again, the service member or veteran is provided extensive mental health treatment. Upon successful completion of the program, "the arrest upon which the diversion was based shall be deemed to have never occurred." Penal Code 1001.80(i). Once again, the veteran defendant may indicate in response to a question concerning his or her prior criminal record that there was no arrest or diversion. Id. The Legislature's concern about assisting service members and veterans to returning to the good citizens they were before entering the military can be discerned from the Aug. 17, 2017, amendment to this diversion statute. While the original 2015 iteration of the statute stated it applied to misdemeanors committed by service members or veterans, an already-existing statute prohibited diversion for all driving-under-the-influence offenses. Vehicle Code Section 23640. The 2017 amendment to the military diversion statute came about after the 2nd District Court of Appeal and the 4th District Court of Appeal rendered conflicting decisions regarding whether or not a service member or veteran could be diverted for driving-under-the-influence offenses. People v. VanVleck, 2 Cal. App. 5th 355 (2016); Hopkins v. Superior Court, 2 Cal. App. 5th 1275 (2016). Even though the California Supreme Court had granted review because of the split of authority, the Legislature did not wait for a judicial determination, and instead amended the statute to say that service members and veterans accused of driving-under-the-influence offenses could be diverted. Penal Code Section 1001.80(l).

Another statute passed to benefit service members and veterans states that at the time of sentencing, if the court concludes a defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service, the court "shall consider the circumstance as a factor in mitigation." Penal Code Section 1170.91.

Conclusion

All of these statutes, passed for the benefit of military service members and veterans who commit crimes, presume guilt on the part of the service member or veteran. They require some work on the part of criminal defense counsel. In most situations, that work involves evidence of service in the military as well as evidence of the malady suffered therefrom. When the service member or veteran suffers a conviction and is eligible for probation, whether or not he or she is in a Veterans Treatment Court, the defense lawyer should be presenting this evidence and requesting a program. When the service member or veteran is accused of a misdemeanor, whether or not he or she is in a Veterans Treatment Court, diversion should be requested. When there is a successful end to the case, the defense lawyer should make sure all that can be sealed is sealed, not only with the California Department of Justice but with the local court as well. When a service member or veteran is being sentenced for any crime, sufficient evidence should be presented to enable the sentencing court to apply the mandatory factor in mitigation.

What should be done to ensure the service member or veteran receives maximum benefits under statutes specifically passed for that purpose is not always being done. Under existing law, a service member or veteran who does not receive effective representation under these statutes has no civil remedy.

On the one hand, there is no possibility of a legal malpractice action due to the judicially-crafted public policy of not permitting wrongdoers to profit from their wrongs. On the other hand, there is the legislatively declared public policy of returning service members and veterans who violate the law to the good citizens they were prior to serving in the military. Under these circumstances, there are no consequences for a criminal defense lawyer who does not take adequate steps to make sure the service member or veteran is able to take advantage of what the Legislature has set in place to benefit them. And the veteran has no remedy.