Articles Posted in Mental Health Issues

Here’s a case discussing access to mental health records of a primary prosecution witness.

This was a due process and confrontation case.  Here, as is not an infrequent issue, the prosecution succeeded in having damaging information about their witness excluded.  The prosecution then went on to give an “incomplete and inaccurate picture” of their witness.  The prosecution did this knowing full well that they were presenting a misleading picture.  (Why that’s not prosecutorial misconduct I have no idea. [N.1])

The majority held that the Confrontation Clause was violated by the restrictions on cross-examination about the informant’s mental health and use of prescription medication. The jury was deprived of evidence concerning his ability to perceive and recall what transpired and the informant’s credibility. On this point, the majority noted:
An American soldier accused of killing five fellow troops at a counseling center in Iraq had been unraveling for nearly two weeks but the U.S. military lacked clear procedures to monitor him or deal with the deadly shooting spree once it began to unfold, a military report found.

The shooting deaths drew attention to the issues of combat stress and morale as troops have to increasingly serve multiple combat tours because the nation’s volunteer army is stretched thin by two long-running wars.

Key lapses in assistance, care, and observation of troubled soldiers.

United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).

On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:


Did Iraq veteran’s PTSD spark his shoplifitng charge?  By Julia O’Malley | Anchorage Daily News.

Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange?  Can you explain that?

For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002

Here’s a useful and timely article.
Hafemeister & Stockey on Criminal Responsibility of War Veterans with PTSD

Hafemeister_07Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN.  Here is the abstract:

As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.

/tip CrimProfBlog

Off topic, but interesting to see how one state has decided to approach returning combat veterans with mental health issues.

By Chris Roberts / El Paso Times

Posted: 08/30/2009 12:00:00 AM MDT

EL PASO — Combat veterans with post-traumatic stress disorder who are accused of certain crimes may soon have a choice between a trial or mental-health treatment.

United States v. Usry, __ M.J. __, No. 1298 (C.G. Ct. Crim. App. Aug. 5, 2009).

This case discusses the different issues that can come up when there is an indication that the client is having a bad mental health day at trial.  The problem can come from medications the client is on, or an ongoing diagnosed illness such as PTSD or TBI related issues.  In Usry there are quite a few “issues.”

The report of the R.C.M. 706 board, Defense Exhibit D, records diagnoses of bipolar disorder, panic disorder, anxiety disorder, chronic posttraumatic stress disorder, and attention deficit disorder, predominantly inattentive subtype. It states that he is suffering from severe depression and is at significant risk for suicide. The report acknowledges that its findings “were made without access to all of the member’s mental health records, including documentation relating to his recent inpatient psychiatric hospitalization. . . . Nevertheless, the Board is confident of their findings and does not feel that possession of knowledge of the contents of the other treatment records would alter their findings.”

I’m sure you, like me, have used or tried to use PTSD at trial, either on the merits or at least in sentencing.  Along with TBI, PTSD seems to have a significant impact, especially when it results from combat.  There has been a lot published over the last few years about how the military handles – or doesn’t handle – these cases.  I have found differing attitudes within the various “jurisdictions” I’ve traveled.  For example, at Fort Belvoir, they have an exceptional program, well staffed and seemingly well balanced in their approach.  Here is an item that may be of interest.

Michael de Yoanna & Mark Benjamin, “I am under a lot of pressure to not diagnose PTSD,” Salon, 10 April 2009.

Thanks to Karen Franklin, and here is her commentary on the article.

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