Defending New York State’s Combat Veterans

A Public Defense Backup Center Proposal

 Contact:  Jonathan E. Gradess, Executive Director of New York State Defenders Association

 

Introduction  

In written testimony submitted to the New York State Senate Committee on Mental Health and Developmental Disabilities on February 29, 2012, the New York State Defenders Association (NYSDA) set out a proposal to develop a Military and Veterans Defense Project. In support of the proposal, the testimony set out in detail:

  • facts based on historical, medical, and social science studies and analyses of the effects of combat duty on some of the brave people who have served this country; and, in particular
  • the growth, in numbers and severity, of cases involving individuals whose military service has included duty that may have given rise to cognitive and behavioral issues leading to their involvement in the justice system; along with
  • the need to provide quality legal representation for those individuals, as well as appropriate diversion and other programs and procedures designed to ensure that detrimental effects of military service will be considered and ameliorated rather than ignored or exacerbated throughout legal proceedings.

During the testimony, discussion arose about the need to provide training on issues relating to military experience and subsequent involvement in the justice system. The Military and Veterans Defense Project, if established, would:

  • raise awareness of the problem among defense lawyers, other justice system stakeholders, local and state officials, and the public;
  • develop, and train lawyers on, best practices for the legal representation of clients whose military experiences may be relevant to their cases; and
  • develop, evaluate, and then educate others about proposals for justice system reforms to appropriately address these issues.

Experiences and capabilities of NYSDA and its Public Defense Backup Center that will make this Project work were also discussed.

Raising Awareness of Issues Relating to Veterans in the Justice System

Raising Awareness Among Defense Lawyers

In our testimony we briefly described New York State’s broken, underfunded, and understaffed public defense system, alluding to the fact that attorneys who lack time and even minimal investigative resources may be unaware that their client served in the military. Lawyers fighting in the trenches of that broken system may not even realize there are many ways in which a client’s military experience can be important to the case.

Therefore, training lawyers to properly represent clients whose combat experience is relevant to the case at hand begins with raising awareness that a combat history can matter. And it can matter at every step of representation.

The harmful effects of combat, such as Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), can be powerful mitigating factors. This is true not only at sentencing but throughout a case, beginning at the charging stage. For example, advocating at this stage of a domestic violence case is often considered a futile task in the face of current policies intended to hold batterers accountable from the instant they are accused. But arguing for an exercise of prosecutorial charging discretion might take on new life when the argument is “the client was not violent toward his partner until he fell victim to PTSD after serving in Iraq; treating his disorder, not prosecuting him for a felony, is the way to keep others safe.”

Lawyers also need to be aware that combat-related problems may intersect with developing issues regarding police interrogation. As the number of recognized wrongful convictions has grown, so has the realization that individuals with mental disorders may be more susceptible to police interrogation techniques and so more prone to making false confessions. Even knowledgeable lawyers who have challenged the confessions of juveniles, individuals with developmental disabilities, and those diagnosed with classic mental illnesses may be unaware that clients who do not present obvious symptoms may be suffering from combat-related conditions that would cast doubt on the accuracy or voluntariness of their admissions to police.

As one last example, lawyers who know and have argued that sending people with mental illness to prison is both unfair and generally counterproductive may not know that specific arguments exist for the soldier with PTSD. As noted in our written testimony, the prison environment reinforces this disorder, encouraging the hypervigilance, paranoia, aggression, and emotional numbness that are its hallmarks.

NYSDA already has the infrastructure for disseminating information to public defense lawyers and programs statewide. Information collected or developed by the Military and Veterans Defense Project can be published in NYSDA’s newsletter and made available on the Web at www.nysda.org. Presentations by Project staff can be made and discussed at statewide and regional convenings of Chief Defenders, providing information to the field and in turn giving the Project insight into what further information public defense providers need.

Raising Awareness Among Other Justice System Stakeholders

Defense advocacy relating to combat-related conditions, in specific cases and in support of appropriate procedures and programs to address such cases, depends in part on the receptivity of those to whom advocacy is directed. Educating prosecutors, judges, and probation and parole officers generally about the problems faced by many veterans would equip them to appreciate and more accurately evaluate case-specific arguments. But public defense lawyers and programs lack the time and resources to collect and pass along data and information from the large and growing body of medical and social science literature describing these issues. And especially in those numerous localities where public defense programs are not considered full partners in the public safety/justice system, the information they do provide may fall on deaf ears.

The Military and Veterans Defense Project can provide local public defense providers and bar associations with the materials they need to respond to the concerns of their local justice system stakeholders. NYSDA can call on the collaborative partnerships developed in the course of the 2007 planning grant described in our initial written testimony (and build additional partnerships) to demonstrate the credibility of proposals for addressing the problems of returning military personnel ensnared in the justice system.

Raising Awareness Among Local and State Officials and the Public

NYSDA’s contract with the State to run the Public Defense Backup Center requires us to “conduct training programs, conferences and seminars for public defense attorneys and the public, including a public education effort concerning the criminal justice system.” The Military and Veterans Defense Project will broaden our existing efforts.

Raising Awareness in the Business Community

In many respects the business community and financial industry have a special obligation for seeing to the needs of our returning veterans. This is especially true when it comes to protecting the liberty interests of the men and woman who put their lives on the line to defend our freedom, returning veterans, whose combat related post-traumatic stress disorder and brain injuries lead to violence and crime and result in their arrest, prosecution, and imprisonment.

The life force of our free enterprise and market system is the vigilant maintenance of our cherished democratic institutions. Almost fifty-three years ago, President John F. Kennedy, himself a decorated veteran of World War II told us that “the cost of freedom is always high, but Americans have always paid it.” We must never forget that the price has been paid with the lives of our service men and women and the cost is not limited to those who have died, but includes those who have survived and are continuously burdened by severe, sometimes unbearable, service-related physical and mental disorders. But not for the service of our returning veterans, the vast wealth and endless opportunities present in the American economy would not exist. Entrepreneurs, business men and women, bankers, investors, and financiers could not transact and prosper without the guarantees of liberty secured for us by our fighting men and women.

Every time a veteran is arrested and prosecuted for a crime involving service-related PTSD or TBI and made to confront our criminal justice system without a good defense lawyer who is well versed on the special defenses available to veterans, we as a people are denying that service member the guaranty of the same rights and protections he or she fought to preserve for us. And each time we ignore the deep psychological trauma and injury caused by combat conditions and fail to balance loyalty and mercy with justice, we turn our backs on those who paid the steep price of liberty for us and made it possible for us to live prosperous and free American lives.

At NYSDA we plan to partner with the business and financial community to ensure that there is ample funding for the work we do for justice and for our veterans. We ask our colleagues in the business community to consider making a tax- deductible donation to the New York State Defenders Association.

Training Lawyers on Best Practices for Cases of Military and Veteran Clients

As already noted, training public defense attorneys is a part of NYSDA’s contractual duty to the State. The Association is designated an “Accredited Provider” by the New York State Continuing Legal Education Board, and provides a variety of CLE programs. Using information obtained during its earlier planning grant and many additional materials obtained and stored as part of the Backup Center’s clearinghouse function, the Military and Veterans Defense Project could quickly begin training lawyers on some of the basic issues discussed here. But because defense of returning military personnel and veterans in state courts is very much a developing field, the Project would also develop best practices based on field experience gained by working with local and national defense lawyers and clients on difficult cases involving these issues.

Providing Training on the Representation of Military and Veteran Clients

The awareness campaign discussed above and NYSDA’s reputation for providing relevant, high-quality training will generate initial audiences for CLE training on the representation of clients whose military experiences may be germane to their cases. Venues for such CLEs will include NYSDA’s statewide annual conference, other annual regional training events including those held in Rochester and New York City, as well as regional and local trainings addressing topics central to representing veterans.[1] Initial training could include PTSD and TBI, obtaining and interpreting military records (including determining tour length and redeployment), and existing programs such as veterans courts and veterans diversion projects.

Military and Veterans Defense Project staff will identify increasingly specific topics and develop curricula for addressing them. Such topics might include:

  • how military culture can create social and emotional barriers to reporting symptoms and affect the way clients react to the accusations against them, to their civilian lawyers, and to other facets of their cases;
  • the use of veteran “mentors” to increase the willingness of veteran clients to agree to, and to improve their ability to successfully complete, programs as a part of plea bargains or supervision conditions;
  • the effect of criminal convictions on eligibility for veterans benefits and services and other collateral consequences affecting military or veteran clients;
  • the distinctive challenges faced by Guard and Reserve soldiers; and
  • family law, immigration law, or other legal issues related to or affecting military or veteran clients.

Additionally, the backup support services offered by the Military and Veterans Defense Project will identify other topics on which CLE training is needed, including “best practices” as those are identified and developed as described below.

Identifying and Developing Best Practices

Six years have passed since NYSDA obtained and used a planning grant to, among other things, routinely collect information on existing programs and practices relating to defense of veterans. The Military and Veterans Defense Project will update that information and materials sporadically collected since then, drawing on the experience and insights from existing veterans courts and other programs and state and nationwide research. The Project will continue to identify new practices and information as these arise.[2]

The Project will retain on staff, and partner with, individuals who will serve as attorneys and consultants in cases where military and veteran clients face serious prosecutions and cases that present consequences unique to such clients. Staff and partners will include attorneys with military experience and people with detailed historical knowledge of recent American conflicts and their effects on combatants. Clinicians capable of assessing and diagnosing clients will also be involved. These services will provide public defense lawyers and clients statewide with resources unavailable or unaffordable locally. In turn, this work will help the Project identify and develop best practices.

The “feedback” technique of both sharing and gaining knowledge and insight while working with attorneys who request assistance is already widely used at the Backup Center, where research for and information from consultations with attorneys who request assistance then becomes part of the clearinghouse of information staff lawyers can draw upon in responding to future requests. Such recycling and refining of experience is particularly productive when – as here –  a specific area of law or representation is involved.[3]

Training Lawyers on Best Practices

As best practices are identified, developed, and refined, the Military and Veterans Defense Project will offer CLE trainings, produce written guidelines and advisories, and disseminate this information. NYSDA’s existing information-sharing avenues (newsletter, website, etc.) will be employed.

In addition, the Project will collaborate with other partners, including state and local bar associations and veterans services providers. NYSDA, the only statewide entity that focuses on improving public defense services and training public defense lawyers, is the logical choice to spearhead these partnerships. Because the same trauma-related conditions that result in some combat veterans’ involvement in the justice system also result in unemployment, poverty, and homelessness, public defense lawyers represent a large portion of such individuals. At the same time, the Military and Veterans Defense Project will seek to work with all others who represent or otherwise serve veterans to ensure that all veterans who become enmeshed in the justice system receive the expert, respectful representation they deserve.

Changing the law to help veterans in trouble

At NYSDA we are deeply alarmed by the number of veterans who return home from war suffering service-related combat injuries after receiving no transitional counseling or deprogramming. Many face suicide; others often find themselves repeating the violence and unrestrained aggressive behaviors for which they were combat trained. All this is exacerbated by the current practice of multiple deployments of both active duty and reserve personnel.

Reintegration is an endemic problem for nearly all veterans, but for those with physical and mental disorders the return home can be strewn with obstacles and legal turmoil. Veterans face difficulty obtaining training and education, and often face unemployment and homelessness. These are aggravated by the signature injuries of our recent conflicts, PTSD and TBI, the behavioral symptoms of which can result in assaultive behavior, domestic violence, and substance abuse from self-medication. 

To address this serious problem facing veterans in our state justice system, NYSDA has worked with sponsors in both houses in the New York State Legislature on a bill (A.7529/S.5624) which would create Article 217 of the Criminal Procedure Law to allow for mandatory alternative resolution of criminal proceedings involving veterans. The bill provides for a series of diversionary methods for pre-trial diagnosis of veterans to ascertain whether or not − and to what extent – service-related PTSD, TBI, or other injuries played a role in the conduct leading to the veteran’s arrest and prosecution. Once it is determined that a demonstrable connection exists, various procedures are employed to divert the case from the criminal justice system into therapy and counseling.

 Crime and violence against neighbors and family members deprive surviving veterans of a sense of self, and the honor that was so much a part of their lives in the service of our country.

We are hopeful that the bill which follows will advance through the legislative process and we ask you to contact your Assemblymember and State Senator and urge them to support NYSDA’s efforts to restore the returning veteran whose service-related PTSD, TBI, or other injuries have led him or her to the courthouse door.

The following is the bill: 

S T A T E   O F   N E W   Y O R K

       ________________________________________________________________________

                                          7529

                               2013-2014 Regular Sessions

                                  I N  A S S E M B L Y

                                      May 23, 2013

                                      ___________

 Introduced by M. of A. BRINDISI — read once and referred to the Committee on Codes

 AN  ACT to amend the criminal procedure law, in relation to establishing an alternative resolution program for veterans  accused  of  certain felonies

          THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Title I of the criminal procedure law is amended by adding a new article 217 to read as follows:

                                   ARTICLE 217

 ALTERNATIVE RESOLUTION OF CRIMINAL PROCEEDINGS                            INVOLVING VETERANS

 SECTION 217.00 DEFINITIONS.

 217.05 ALTERNATIVE RESOLUTION PROGRAM; COURT PROCEDURES.

 S 217.00 DEFINITIONS.

THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:

1.  “VETERAN”  MEANS  A  CURRENT OR FORMER MEMBER OF THE UNITED STATES MILITARY, INCLUDING THE MILITARY RESERVES OR A STATE’S  NATIONAL  GUARD, WHO:

 (A) SERVED IN A COMBAT THEATRE OR COMBAT ZONE; OR

 (B) EXPERIENCED A TRAUMATIC EVENT DURING MILITARY SERVICE; OR

 (C) WAS PHYSICALLY OR MENTALLY INJURED DURING MILITARY SERVICE.

2. “ELIGIBLE VETERAN” MEANS:

(A)  A  VETERAN  WHO IS ACCUSED OF ONE OR MORE OFFENSES, AS DEFINED IN  SUBDIVISION ONE OF SECTION 10.00 OF THE PENAL LAW;

(B) A VETERAN WHO SUFFERS FROM POSTTRAUMATIC  STRESS  DISORDER,  OTHER MENTAL  ILLNESS  OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURY, ALCOHOL OR SUBSTANCE ABUSE OR  ADDICTION  OR  COMBINATION THEREOF,  THAT  WAS,  AT  LEAST  IN  PART,  CAUSED BY, EXACERBATED BY OR  RESULTED FROM THE VETERAN’S SERVICE IN A COMBAT THEATRE OR  ZONE,  OR  A  TRAUMATIC  EVENT OR A PHYSICAL OR MENTAL INJURY DURING MILITARY SERVICE; AND 

(C)  A  VETERAN WHOSE SPECIFIED ILLNESS, INJURY OR OTHER CONDITION MAY HAVE PLAYED A ROLE IN THE COMMISSION OF  ONE  OR  MORE  OF  THE  CHARGED OFFENSES.

 3. “ELIGIBLE VETERAN EVALUATION” MEANS A WRITTEN ASSESSMENT AND REPORT BY  A COURT-APPROVED ENTITY OR LICENSED HEALTH CARE PROFESSIONAL EXPERIENCED IN THE  TREATMENT OF INDIVIDUALS  SUFFERING  FROM POSTTRAUMATIC STRESS  DISORDER, OTHER MENTAL ILLNESSES OR CONDITIONS, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURIES, ALCOHOL OR SUBSTANCE ABUSE OR ADDICTION, OR A COMBINATION THEREOF, OR BY AN ENTITY CERTIFIED BY THE STATE DEPARTMENT OF HEALTH, THE STATE OFFICE OF MENTAL HEALTH, THE STATE OFFICE  OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES, OR THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS AS EXPERIENCED IN THE TREATMENT OF SUCH ILLNESSES, INJURIES, OR CONDITIONS, WHICH SHALL INCLUDE:

(A)  AN EVALUATION AS TO WHETHER THE DEFENDANT IS SUFFERING FROM POST-TRAUMATIC STRESS DISORDER, OTHER MENTAL ILLNESSES OR  CONDITIONS,  TRAUMATIC  BRAIN  INJURY,  OTHER  PHYSICAL  OR  MENTAL  INJURIES, ALCOHOL OR  SUBSTANCE ABUSE OR ADDICTION OR A COMBINATION THEREOF; 

(B) WHETHER  THE  DEFENDANT’S  POSTTRAUMATIC  STRESS  DISORDER,  OTHER MENTAL  ILLNESS  OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURY, ALCOHOL OR SUBSTANCE ABUSE OR ADDICTION OR A COMBINATION THEREOF  WAS,  AT  LEAST  IN PART, CAUSED BY, EXACERBATED BY OR RESULTED FROM THE VETERAN’S SERVICE IN A COMBAT THEATRE OR ZONE  OR  A  TRAUMATIC EVENT OR A PHYSICAL INJURY DURING MILITARY SERVICE;

(C)  AN ASSESSMENT OF WHETHER THE DEFENDANT’S ILLNESS, INJURY OR OTHER CONDITION, IF ANY, MAY HAVE PLAYED A ROLE IN THE COMMISSION  OF  ONE  OR MORE OF THE CHARGED OFFENSES;

(D)  A RECOMMENDATION AS TO WHETHER THE DEFENDANT’S ILLNESS, INJURY OR OTHER CONDITION, IF ANY, COULD BE EFFECTIVELY ADDRESSED BY THE  ALTERNATIVE RESOLUTION PROGRAM IN ACCORDANCE WITH THIS ARTICLE; AND

(E)  ANY  OTHER  INFORMATION,  FACTOR, CIRCUMSTANCE, OR RECOMMENDATION DEEMED RELEVANT BY THE ASSESSING ENTITY OR SPECIFICALLY REQUESTED BY THE COURT.

S 217.05 ALTERNATIVE RESOLUTION PROGRAM; COURT PROCEDURES. DETERMINATION OF VETERAN STATUS. NOTWITHSTANDING  ANY  LAW  TO  THE     CONTRARY, AT ANY TIME AFTER THE ARRAIGNMENT OF A DEFENDANT, BUT PRIOR TO THE  ENTRY OF A PLEA OF GUILTY OR THE COMMENCEMENT OF TRIAL, THE DEFENDANT CLAIMS TO BE A VETERAN, AS DEFINED IN  SUBDIVISION  ONE  OF  SECTION 217.00  OF  THIS ARTICLE, THE COURT SHALL ORDER THE DEFENDANT TO PROVIDE WRITTEN EVIDENCE THAT THE DEFENDANT IS  A  VETERAN.  SUCH EVIDENCE MAY INCLUDE,  BUT IS NOT LIMITED TO, RECORDS OF THE UNITED STATES DEPARTMENT DEFENSE, THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS OR A  STATE VETERANS AGENCY.

2.  THE COURT, UPON REVIEW OF THE EVIDENCE PRESENTED AND ANY TESTIMONY OFFERED BY THE DEFENDANT, SHALL DETERMINE  BY  A  PREPONDERANCE  OF  THE EVIDENCE  WHETHER  THE DEFENDANT IS A VETERAN, AS DEFINED IN SUBDIVISION ONE OF SECTION 217.00 OF THIS ARTICLE.

3. DETERMINATION OF ELIGIBLE VETERAN STATUS.

(A) IF THE COURT DETERMINES THAT THE DEFENDANT IS A VETERAN, THE COURT SHALL ORDER AN EXAMINATION OF THE DEFENDANT BY AN ELIGIBLE VETERAN EXAMINER, AS DEFINED IN SUBDIVISION THREE OF SECTION 217.00 OF THIS ARTICLE, TO EVALUATE WHETHER THE DEFENDANT IS AN ELIGIBLE VETERAN, AS DEFINED IN SUBDIVISION  TWO  OF SECTION 217.00 OF THIS ARTICLE. THE DEFENDANT SHALL PROVIDE A WRITTEN AUTHORIZATION, IN COMPLIANCE WITH THE REQUIREMENTS  OF ANY  APPLICABLE  STATE OR FEDERAL LAWS, RULES OR REGULATIONS AUTHORIZING DISCLOSURE OF THE RESULTS OF THE ASSESSMENT TO THE DEFENDANT’S ATTORNEY, THE PROSECUTOR, THE COURT, AUTHORIZED COURT PERSONNEL AND OTHER INDIVIDUALS SPECIFIED IN SUCH AUTHORIZATION FOR THE SOLE PURPOSE OF DETERMINING WHETHER THE DEFENDANT IS AN ELIGIBLE VETERAN.

(B)  UPON RECEIPT OF THE ELIGIBLE VETERAN EVALUATION REPORT, THE COURT SHALL PROVIDE A COPY TO THE DEFENDANT AND THE PROSECUTOR.

(C) THE COURT SHALL, UPON THE REQUEST OF EITHER  PARTY  OR  WHERE  THE ELIGIBLE  VETERAN  EVALUATION  INDICATES THAT THE DEFENDANT MAY NOT MEET THE DEFINITION OF AN ELIGIBLE VETERAN, ORDER A HEARING ON THE  ISSUE  OF WHETHER  THE  DEFENDANT  IS  AN  ELIGIBLE VETERAN. IF THE COURT ORDERS A  HEARING, THE HEARING MUST BE HELD AS SOON AS PRACTICABLE SO AS TO FACILITATE EARLY INTERVENTION IN THE EVENT THE DEFENDANT IS FOUND  TO  BE  AN ELIGIBLE VETERAN. AT THE HEARING, THE COURT MAY CONSIDER ORAL OR WRITTEN ARGUMENTS,  TAKE  TESTIMONY  FROM WITNESSES OFFERED BY EITHER PARTY, AND CONSIDER ANY RELEVANT EVIDENCE INCLUDING, BUT NOT LIMITED  TO,  EVIDENCE THAT:

(I)  THE  DEFENDANT  SUFFERS FROM POSTTRAUMATIC STRESS DISORDER, OTHER MENTAL ILLNESS OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER  PHYSICAL OR MENTAL  INJURY,  ALCOHOL  OR SUBSTANCE ABUSE OR ADDICTION OR COMBINATION THEREOF;

(II) SUCH ILLNESS, INJURY OR OTHER CONDITION WAS, AT  LEAST  IN  PART,   CAUSED  BY, EXACERBATED BY OR RESULTED FROM THE DEFENDANT’S SERVICE IN A COMBAT THEATRE OR ZONE OR A TRAUMATIC EVENT  OR  A  PHYSICAL  OR  MENTAL INJURY DURING MILITARY SERVICE; AND

(III)  SUCH  ILLNESS, INJURY OR OTHER CONDITION MAY HAVE PLAYED A ROLE IN THE COMMISSION OF ONE OR MORE OF THE CHARGED OFFENSES.

(D) THE COURT SHALL CONSIDER AND MAKE FINDINGS OF FACT WITH RESPECT TO WHETHER:

 (I) THE DEFENDANT SUFFERS FROM POSTTRAUMATIC  STRESS  DISORDER,  OTHER MENTAL  ILLNESS  OR CONDITION, TRAUMATIC BRAIN INJURY, OTHER PHYSICAL OR MENTAL INJURY, ALCOHOL OR SUBSTANCE ABUSE OR  ADDICTION  OR  COMBINATION THEREOF;

(II)  SUCH  ILLNESS,  INJURY OR OTHER CONDITION WAS, AT LEAST IN PART,  CAUSED BY, EXACERBATED BY OR RESULTED FROM THE DEFENDANT’S SERVICE IN  A COMBAT THEATRE OR ZONE, OR A TRAUMATIC EVENT OR A PHYSICAL INJURY DURING MILITARY SERVICE;

(III)  SUCH  ILLNESS, INJURY OR OTHER CONDITION MAY HAVE PLAYED A ROLE IN THE COMMISSION OF ONE OR MORE OF THE CHARGED OFFENSE OR OFFENSES; AND

(IV) IF THE DEFENDANT IS CHARGED WITH ONE OR MORE CLASS  A,  B,  OR  C  FELONIES,  INSTITUTIONAL  CONFINEMENT  OF THE DEFENDANT IS OR MAY NOT BE NECESSARY FOR THE PROTECTION OF THE PUBLIC.

 4. NOTWITHSTANDING ANY LAW TO THE CONTRARY, WHEN THE COURT DETERMINES, PURSUANT TO PARAGRAPH (D) OF SUBDIVISION THREE OF THIS SECTION, THAT THE DEFENDANT IS AN ELIGIBLE VETERAN, OR WHEN  THE  PARTIES  AND  THE  COURT AGREE  TO A FINDING THAT THE DEFENDANT IS AN ELIGIBLE VETERAN, THE COURT MUST:

(A) IF THE DEFENDANT IS CHARGED WITH ONE OR  MORE  OFFENSES,  NONE  OF WHICH  IS  A CLASS A, B, OR C FELONY, ALLOW THE DEFENDANT TO PARTICIPATE IN THE ALTERNATIVE RESOLUTION PROGRAM OFFERED BY THIS ARTICLE, WHICH  IS DESIGNED  TO TREAT THE ELIGIBLE VETERAN’S POSTTRAUMATIC STRESS DISORDER, OTHER MENTAL ILLNESS OR CONDITION, TRAUMATIC BRAIN INJURY,  OTHER  PHYSICAL  INJURY,  ALCOHOL  OR  SUBSTANCE ABUSE OR ADDICTION, OR COMBINATION THEREOF, WITHOUT A PLEA OF GUILTY; OR

(B) IF THE DEFENDANT IS CHARGED WITH ONE OR MORE  CLASS  A,  B,  OR  C  FELONY  OFFENSES,  ALLOW THE DEFENDANT TO PARTICIPATE IN THE ALTERNATIVE RESOLUTION PROGRAM OFFERED BY THIS ARTICLE, WHICH IS DESIGNED  TO  TREAT ELIGIBLE  VETERAN’S  POST-TRAUMATIC  STRESS DISORDER,  OTHER MENTAL ILLNESS OR CONDITION, TRAUMATIC BRAIN  INJURY,  OTHER  PHYSICAL  INJURY, ALCOHOL OR SUBSTANCE ABUSE OR ADDICTION, OR COMBINATION THEREOF:

(I) WITHOUT A PLEA OF GUILTY; OR

(II) UPON ENTRY OF A PLEA OF GUILTY TO THE CHARGE OR CHARGES; OR

(III) UPON ENTRY OF A PLEA OF GUILTY TO A LESSER CHARGE.

5. ALTERNATIVE RESOLUTION PROGRAM; TREATMENT PLAN.

(A)  THE  COURT  SHALL  ISSUE  AN  ORDER GRANTING PARTICIPATION IN THE   ALTERNATIVE RESOLUTION PROGRAM THAT SETS FORTH: (I)  THE  TERMS,  CONDITIONS,  AND  LENGTH  OF  THE ELIGIBLE VETERAN’S TREATMENT PLAN; (II) THE FINAL DISPOSITION OF THE PROCEEDING AS SET FORTH IN SUBDIVISION  SIX  OF THIS SECTION; AND (III) THE DISPOSITION OF THE PROCEEDING IF THE DEFENDANT FAILS TO SATISFY THE TERMS AND CONDITIONS OF THE TREATMENT PLAN.

(B)  TERMS  AND CONDITIONS. IN DETERMINING THE TERMS AND CONDITIONS OF  THE TREATMENT PLAN, THE COURT SHALL CONSIDER THE RECOMMENDATIONS IN  THE ELIGIBLE  VETERAN  EVALUATION  REPORT  AND  THE  RECOMMENDATIONS  OF THE DEFENDANT’S HEALTH CARE  PROVIDERS,  IF  ANY.  THE  TREATMENT  PLAN  MAY REQUIRE  THE  DEFENDANT,  WITH THE ASSISTANCE OF TREATMENT PROVIDERS, TO DEVELOP A PLAN FOR ONGOING RECOVERY AFTER DISPOSITION  OF  THE  CRIMINAL CASE.

(C) LENGTH OF TREATMENT PLAN.

(I)  WHERE THE DEFENDANT IS CHARGED WITH ONE OR MORE OFFENSES, NONE OF WHICH IS A CLASS A, B, OR C FELONY, THE TREATMENT PLAN  MAY  NOT  EXTEND BEYOND  TWELVE MONTHS. HOWEVER, UPON CONSENT OF THE DEFENDANT, THE COURT MAY EXTEND A TREATMENT PLAN FOR UP TO TWELVE ADDITIONAL MONTHS.

(II) WHERE THE DEFENDANT IS CHARGED WITH ONE OR MORE CLASS A, B, OR C FELONY  OFFENSES,  THE  TREATMENT  PLAN  MAY  NOT EXTEND BEYOND EIGHTEEN MONTHS. HOWEVER, UPON CONSENT OF THE DEFENDANT, THE COURT MAY  EXTEND  A TREATMENT PLAN FOR UP TO TWELVE ADDITIONAL MONTHS.

(D)  THE DEFENDANT SHALL AGREE ON THE RECORD OR IN WRITING TO ABIDE BY THE TERMS AND CONDITIONS OF THE TREATMENT PLAN ORDERED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION.

6. FINAL DISPOSITION.

(A) ADJOURNMENT IN CONTEMPLATION OF DISMISSAL. NOTWITHSTANDING ANY LAW TO THE CONTRARY, IF THE DEFENDANT  IS  ALLOWED  TO  PARTICIPATE  IN  THE PROGRAM PURSUANT TO PARAGRAPH (A) OF SUBDIVISION FOUR OF THIS SECTION OR SUBPARAGRAPH  (I)  OF PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION, UPON THE DEFENDANT’S WRITTEN AGREEMENT TO ABIDE BY THE TERMS AND  CONDITIONS  OF  THE  TREATMENT  PLAN, THE COURT SHALL GRANT AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL.

(I) IF THE CASE IS NOT RESTORED TO THE CALENDAR DURING THE TIME PERIOD  OF THE TREATMENT PLAN, THE ACCUSATORY INSTRUMENT IS, AT  THE  EXPIRATION OF  SUCH  TERM,  DEEMED  TO  HAVE  BEEN  DISMISSED IN THE FURTHERANCE OF JUSTICE.

(II) UPON DISMISSAL OF THE  ACCUSATORY  INSTRUMENT,  THE  COURT  SHALL  ENTER AN ORDER DIRECTING THAT THE RECORD OF SUCH ACTION OR PROCEEDING BE SEALED AND DIRECTING THE CLERK OF THE COURT WHEREIN SUCH CRIMINAL ACTION OR  PROCEEDING  WAS TERMINATED TO IMMEDIATELY NOTIFY THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES AND THE HEADS OF ALL APPROPRATE POLICE DEPARTMENTS AND  OTHER  LAW  ENFORCEMENT  AGENCIES  THAT  THE ACTION  HAS  BEEN  TERMINATED  AND  THAT  THE  RECORD  OF SUCH ACTION OR PROCEEDING SHALL BE SEALED. UPON RECEIPT OF SUCH NOTIFICATION, THE AGENCY, DIVISION, OR DEPARTMENT SHALL COMPLY WITH THE PROVISIONS OF SUBDIVISION ONE OF SECTION 160.50 OF THIS CHAPTER.

(B) FOR ALL OTHER DEFENDANTS,  UPON  SATISFACTION  OF  THE  TERMS  AND  CONDITIONS OF THE TREATMENT PLAN, THE FINAL DISPOSITION MAY INCLUDE, BUT IS  NOT  LIMITED  TO: (I) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION  SUPERVISION  AND,  UPON  THE  DEFENDANT’S  SUCCESSFUL COMPLETION  OF  THE  INTERIM PROBATION SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA AND DISMISSING THE INDICTMENT; OR (II) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION SUPERVISION AND, UPON SUCCESSFUL  COMPLETION  OF  THE  INTERIM  PROBATION  SUPERVISION   TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA, ENTER A GUILTY PLEA TO A MISDEMEANOR OFFENSE  AND  SENTENCING  THE DEFENDANT IN ACCORDANCE WITH THE TREATMENT  PLAN ORDER, WHICH MAY INCLUDE A PERIOD OF PROBATION SUPERVISION PURSUANT TO SECTION 65.00 OF THE PENAL LAW; OR (III) ALLOWING  THE  DEFENDANT  TO WITHDRAW HIS OR HER GUILTY PLEA AND DISMISSING THE INDICTMENT.

S 2. This act shall take effect immediately.

 

Developing, Evaluating, and Educating Others About Appropriate Justice System Reforms

Quality legal representation is only one aspect of what individuals need when threatened with loss of liberty for behavior stemming from military experiences. As the rise of veterans courts and other specialized programs illustrate, there is a need for system-wide planning and implementation of reforms to ensure appropriate handling and disposition of veterans’ cases. The Military and Veterans Defense Project will therefore not only provide support and technical assistance to fledgling pilot programs being considered by defender offices but will also work for broader reform.

NYSDA’s Backup Center has long been contractually charged with identifying problem areas and proposing solutions “in the form of specific recommendations to the Governor, the Legislature, the Judiciary and other appropriate instrumentalities.” Therefore, in addition to its efforts to raise public awareness of issues involving veterans in the justice system, the Military and Veterans Defense Project will develop reform proposals, evaluate proposals by others, and work to educate appropriate officials about such reforms.

Our testimony before the New York State Senate Committee on Mental Health and Developmental Disabilities was but one example of NYSDA’s many appearances at Legislative and other hearings. We have presented testimony not only on public defense budget issues but on other matters affecting public defense clients and lawyers, from jury pool diversity to the mental health problems associated with confinement of prisoners in Special Housing Units. NYSDA has also produced and published a variety of reports and studies about public defense problems, such as the lack of appropriate, consistent procedures for determining the financial eligibility of potential clients; the lack of state accountability in how state funds for public defense were spent prior to the creation of the Office of Indigent Legal Services; and many technical issues, all available on our website. http://www.nysda.org/Reports&Studies.html. The Backup Center’s research capabilities, experience, and status create a perfect mix for a project to assist government officials and the public in understanding and acting to fix problems in how the justice system currently handles the cases of military personnel and veterans whose service-related experiences underlie those cases.

 

Staffing and Budget for the Military and Veterans Defense Project

A staff of four full-time employees is envisioned: project director, staff attorney, researcher, and support staff. The Project will also bring on as consultants one or more people knowledgeable about military law, custom, and culture and others with mental health and/or social work training. A project budget is attached.

 

Conclusion

Based on the above and on our initial testimony, NYSDA seeks funding for the Military and Veterans Defense Project, including its many training components.


[1] NYSDA frequently co-sponsors local and regional training events with the courts, federal defender programs, local public defense programs, and bar associations.

[2] Among developments may be new medical techniques for identifying heretofore “hidden” physical injuries that may contribute to behavioral changes. See for example, Lauran Neergaard, “Finding unseen damage of traumatic brain injury,” Times Union (Albany, NY), 3/2/2012. http://www.timesunion.com/default/article/Finding-unseen-damage-of-traumatic-brain-injury-3374574.php.

[3] NYSDA’s Criminal Defense Immigration Project (CDIP) provides a prime example of the success this process can lead to; CDIP’s expertise is in great demand not only by attorneys seeking individual assistance in representing foreign national clients but also for formal CLE training. Among many other areas in which Backup Center staff have developed and then shared expertise through a combination of research and attorney consultations that revealed issues arising in the field are the implementation of legislation mandating ignition interlock devices in driving-while-intoxicated cases, implementation of the Drug Law Reform Acts, and implementation of other sentencing law changes.

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