Orange County Criminal Defense Lawyer Blog

Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) is a real problem in our veterans returning from combat deployments. Many times the conditions are not diagnosed until the veteran becomes a defendant in the criminal justice system. How the criminal justice system deals with these defendants is a great challenge in the future.

The Veteran's Court has been instituted in some courts in California in an effort to acknowledge the veteran's service and deal with it in an organized, comprehensive fashion complete with Veteran's Administration participation. Yet, what happens to the veteran who doesn't qualify for Veteran's Court? While Veteran's Court is a great alternative when available, in some jurisdictions, Veteran's Court doesn't even exist. Now Veteran's Court funding, as all the system's funding, is at risk.

The prosecutor who is willing to consider the defendant's service in a meaningful way has many options at his disposal, short of entry into Veteran's Court. A criminal defense attorney needs to present a creative alternative to a conviction or a jail sentence to the prosecutor. For example, a criminal case could be delayed with the requirement that the defendant attend counseling, job training, and medical evaluation. Community service is an option that could be added to any delay or continuance of the proceedings. The goal of the delay would be to show the prosecutor that the defendant deserves a second chance. The defendant must be willing to meet his obligation to overcome the issues that brought him to the criminal justice system's attention. If drugs or alcohol are the cause of criminal conduct, the defendant has to meet the challenges that addiction brings. In-house residential treatment instead of jail time should be considered as an option. Out-patient follow up with vocational training showing the prosecutor that this defendant is not likely to re-offend is a must.

The prosecutor must be convinced that society will be protected and better served, not by just punishment, but by trying to make the defendant whole again. Continuances to show acceptance of responsibility, treatment to establish a drug free life, alternative sentencing if conviction is mandated are a few solutions available to the defense attorney. Every manner of alternative thinking must be on the table in the representation of the defendant who is a veteran. In order to do that, the defense attorney must be specially aware of the unique problems and solutions available to our military.

Veteran's Day is celebrated once every year by the country. Yet the sacrifice by our veterans is not always so easily recognized any day in the current criminal court system.

Often times I represent men and women who have served our country both in actual combat and in supporting roles. These individuals find themselves traumatized by their service experience to the United States of America. When they come home, all too often there are difficulties coping with day to day life. Sometimes hurdles seem too high to overcome. Depression can set in. Self-medication with drugs and alcohol can become an unhealthy and illegal fix to problems that seem overwhelming.

Once the veteran turns to drugs and alcohol he encounters the criminal justice system. When that happens, what role should the veteran's military service play in the disposition of the case? I think that the veteran deserves every consideration possible under the law. The prosecutor should evaluate the case understanding that the veteran's (defendant's) service has helped protect the very system he now finds himself in.

Too often the prosecutor has the attitude that this veteran (defendant) isn't any different than anyone else. The common mantra of the prosecutor is, "Everyone should be treated the same no matter what their personal story or background is. Justice is blind".

To that, I respond, justice has to open it's eyes to who people are, what caused them to come into contact with law enforcement, and if they are veterans to appreciate the trauma they have suffered in the defense of our country. True justice cannot afford to be blind. The veteran deserves to have his service recognized as a cause of his criminal conduct and every effort needs to be made to recognize this in fashioning a resolution of the criminal case. Rehabilitation and not punishment must be the goal. To do anything else is just criminal.

The basic rule of entrapment (California Penal Code 647a) is that to qualify as a defense, the police have to actually plant the idea of the crime in your head. They must do this by engaging in some type of enticement. One of the ways this is done is to make the reward so lucrative the police essentially overcome your free will. This can also be accomplished if the defendant is in an especially vulnerable position. Entrapment can be a complete defense to charges of wrongdoing.

This will be easier to understand by looking at an example. In the early 1980's, James DeLorean, the man who invented the DeLorean car was in danger of losing his automobile company because he was in deep financial trouble. The FBI and Drug Enforcement officials devised a sting operation in which informants and undercover FBI agents came to DeLorean and wanted him to sell 55 pounds of cocaine. DeLorean had no prior record and no history of drug sales.

Lawyers for DeLorean argued that he was in an especially vulnerable position in that his company was on the brink of disaster. In addition, they argued, the agents offered an amount of money that was so huge that no reasonable person would be able to turn it down. DeLorean, they argued, never had any intention of selling drugs until the FBI agents planted the idea in his head. A jury agreed with the defense and acquitted DeLorean of the charges. This was reported in Time Magazine.

Because the laws of entrapment can be especially tricky, it is more important than ever to seek the help of a criminal law specialist if you are planning on using this as a defense.