IN THE SUPREME COURT OF OHIO

STATE OF OHIO

V.

Appellee,

JEFFREY D. BELEW

Appellant

Case No. 3013-0711

On Appeal from the Court ofAppeals, Sixth Appellate District

Court of Appeals CaseNo. L-11-1279

BRIEF OF AMICI CURAE THE VETERAN'S DEFENSE PROJECT, IN SUPPORT OFAPPELLANT'S MOTION TO RECONSIDER

Brockton D. Hunter (PHV # 5439-2014)(Counsel of Record)Brockton D. Hunter P.A.3033 Excelsior Blvd.Suite 550Minneapolis, MN 55416(612) 874-1625(612)824-0311 (fax)

Karin L. Coble (0078571)Law Office of Karin L. Coble

3409 N. Holland-Sylvania Road, Suite 7Toledo, OH 43615Phone (888) 268-3625Fax (888) 268-6995email karinlcoble cr gmail.com

Attorneys for Amicus CuriaeVeterans Defense Project

Stephen P. Hardwick (0662932Assistant Public Defender(Counsel of Record)Willianl J. Mooney (0002729)Assistant Public DefenderOhio Public Defender's Office259 E. Broad St. Suite 1400Columbus, OH 42315(614) 466-5394(614) 752-5167 (fax)Stephen.hardwick@opd.ohio.govAttorney for Appellant

Julia R. Bates (0013426)Lucas County Prosecuting AttorneyDavid Cooper (0006176)Assistant Prosecuting AttorneyLucas County Courthouse700 Adams Street, Suite 250Toledo, OH 43604(419) 213-4700(419) 213-4595 (fax)AttoNney. foN .4ppellee

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ... .................................................................................................... ii

INTEREST OF THE AMICUS .........................................................................................1

STATEMENT OF FACTS ................................................................................................1

ARGUME NT .. ......................................................................................................................2

1. CRIMINAL JUSTICE TRENDS AND PRECEDENT DEMONSTRATEPUBLIC AND GREAT GENERAL INTEREST ...........................................................3A. U.S. Supreme Court Recognizes Service-Related Disorder Relevant in

S entencing . . . .. . . . . .. . . . . . . ... . . . . .. ... . .. . . . . .. . . . .. . .. . . .. . .. .. . . . . .. .. . . .. .. .. . .. . . . . . . .. . . . .. .. .. . .. ... . . .. . . .. . . . . . . .4B. Minnesota, California and Federal Courts Recognize Service-Related

Disorders Relevant in Sentencing ............................................................................5C. The Popularity of Veterans Treatment Courts Suggests Public Interest.................. 7

II. THE HISTORY OF CRIMINALLY INVOLVED VETERANS REVEALSTHE INJUSTICE THAT OCCURS WHEN SERVICE-RELATEDDISORDERS ARE NOT CONSIDERED IN CRIMINAL PROCEEDINGS .. ............9A. Post-War Crinie Waves Involving Combat Veterans Following Every

Major Conflict Evidence the Inherent Link between Combat Trauma andCriminal Behavior ..................................................................................................11

B. PTSD's Stigma Has Led to Aggressive Punishnient of Veterans withService-Related Disorders .....................................................................................15

C. Iraq and Afghan Veterans Present an Opportunity to Correct Past Mistakes........20

CONCLUSION .............................................................................................................................22

TABLE OF AUTHORITIES

CASES

Porter v. McCollum, 130 S.Ct. 447 (2009) .................................................................................4State v. Belew, Slip Opinion No. 2014-Ohio-2964 .....................................................................2Strickland v. Washington, 446 U.S. 668 (1984) ..........................................................................4

LAWS

Cal. Penal Code § 1170.9 (2010) ................................................................................................8

Col. Revised Stat. §§ I3-3-101, 13-5-144 (2010) .......................................................................8

730 Ill.. Comp. Stat. Ann. 167 (2010) ..........................................................................................8

Minn. Stat. § 609.115 subd. 10 ...................................................................................................5

Ohio S.Ct.Prac.R. 7.10 ................................................................................................................3

Ohio Rev. Code Ann. §2929.12(F) (2013) .................................................................................2

Or. Rev. Stat. § 135.886(2)0)(3) (2010) ......................................................................................8

Tex. Health and Safety Code §617 (2010) ..................................................................................8

Va. Code §2.2-2001.1 (2010) ......................................................................................................8

OTHER AUTHORITIES

Adam Caine, Fallen ftom Grace: Wh,) Treatanent Should Be Considered foN ConvictedCombat Veterans Suffering fr^om Post Traumatic Stress DisoNder,78 U.M.K.C.L.Rev. 215 (2009) ..................................................................................................................6

ALLAN NTEVINS; THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 1775-

1789 454 (1924) ...................................................................................................................11

B. SHEPARD, A WAR OF NERVES: SOLDIERS AND PSYCHIATRISTS IN THE TWENTIETH

CENTURY, 77 (Harvard University Press, 2001) ..................................................................17Betty Rosenbauin, The Relationship Between War and Crime in the United States, 30 J.

CRIM. L. & CRIMINOLOGY 722, 730 (1940) ..........................................................................13

BUREAU OF JUSTICE STATISTICS, VETERANS IN PRISON OR JAIL 1(2000) .................................13

BUREAU OF JUSTICE STATISTICS, NCJ 217199, VETERANS IN STATE AND FEDERAL

PRISON, 2004 6 (2007) ..........................................................................................................13Charles Hoge, Et Al., Combat Duty in Iraq and Afghanistan, Mental Health Problems,

and Barriers to Care, 35 NEw ENG. J. OF MED. 13-22 (2004) .............................................20Charles M. Sennott, Told to Wait, A IUIaNine Dies: VA Care in Spotlight after Iraq War

Veteran's Suicide, BOSTON GLOBE, Feb. 11, 2007 ..............................................................21COMM. ON THE ASSESSMENT OF ONGOING EFFORTS IN THE TREATMENT OF POSTTRAUMATIC

S"['KESS DISORDER, INST. OF MED. OF THE NAT L ACADEMIES, TREATMENT FOR

POSTTRAUMATIC STRESS DISORDER IN MILITARY AND VETERAN POPIJLATIONS: INITIAL

ASSESSMENT 39 (2012) ............................................................................................................10

Dan Ephron and Sarah Childress, How the U.S. Is Failing 7ts Wctr Veterans, NEWSWEEK,

il

Mar. 5, 2007 .........................................................................................................................21Daniel Zwerdling, Gaps in Mental Care Persist for Fort Carson Soldiers, NAT''L PUB.

RADIO, May 24, 2007 ...........................................................................................................18Daniel Zwerdling, Pentagon Report Cites Mental Health Concerns, NAT'L PUB. RADIO,

June 15, 2007......... ................................................................................................................18

DAVID H MARLOWE, RAND CORP., PSYCHOLOGICAL AND PSYCHOSOCIAL

CONSEQUENCES OF COMBAT AND DEPLOYMENT 48 (2001) .................................................

DEP'T OF VETERANS AFFAIRS, MENTAL HEALTH RESIDENTIAL REHABILITATION

TREATMENT PROGRAM (MH RR'TP), Veterans Health Administration Handbook1162.02, 4 (Dec. 22, 20 ]. 0) ...................................................................................................22

Department of Veterans Affairs, Office of Facilities Management, 70 Years of VAHistory (Apr. 2001) ..............................................................................................................17

DR. CHRISANNE GORDON, M.D., AND DR. RONALD GLASSER, M.D., THEATTORNEY'SGUIDE TO DEFEvDING VETERANS IN CRIMINAL C'OURT.' TRAUMATIC BRAININJURIES

(7'BI^: THEI_NVIS7BLEINJURY201 (BROCKTON D. HUNTER, ESQ. AND RYAN C. ELSE,

ESQ., 2014) ...........................................................................................................................10E. C. Wines & Theodore Dwight, The Reformation of Prison Discipline, N. AM. REv.,

VOL. CV, 580-81 (1876) .......................................................................................................12Edith Abbot, Crime and the War, 9 J. AM. INST. CRiM. L. & CRIMINOLOGY 33, 41

(1918) ...................................................................................................................................11Edith Abbot, The C'ivil War and the Crime Wave of 1865-70, 1 SoC. SERV. REv. 212,

212 (1927) ............................................................................................................................12

EDWARD TICK, WAR AND THE SHOULD, HEALING OUR NATION'S VETERANS FROM

POSTTRAUMATIC STRESS DISORDER, 209-216 (Quest Books, 2005) ....................................16

Gen. Patton Slap Haunts Former GI, CHARLESTON DAILY MAIL, 12 (Mar. 27 1970) .............16GI Slapped by Ge. Patton in Sicily Is Dead, CEDAR RAPIDS GAZETTE, 7

(Feb. 2, 1971) .......................................................................................................................16Greg Zoroya, Findings of'Army Healtlz Study, Fifth of Soldiers at PTSD Risk, USA

TODAY, Mar. 6 2008 .............................................................................................................20Judge Michael Daly Hawkins, Coming home: Accommodating The Special Needs of

Military Veterans to the Criminal Justice System, 7 OHIO ST. J. CRtM. L. 563, Spring,570 (2010) .................................................... ...9

MARGARETN NOONAN & CHRISTOPHER MUMOLA, VETERANS IN STATE AND FEDERAL

PRISON, 2004, Bureau of Justice Statistics Special Report 1(2004) ......................................4Kristina Shevory, tif'hy Veterans Should Get 7'heir Own Courts: As Troops Surge Back

Into Donzestic Live, Incarceration Isn'tAlways the Answer, Atlantic, Dec. 2011 ..............11Kevin Giles, This Marine's Death Came After He Served in Iraq: When Jonathan

Schulze Came Home From Iraq, He Tried to Live a Normal Life, But the War KepstThat From Happening, Minneapolis Star Tribune, Jan. 26, 2007 .........................................8

National Association of Drug Court Professionals, "Justice for Vets: The NationalClearinghouse for Veterans Treatment Courts," accessed on Jun. 1 2011,http://www.nadcp.org/JusticeForVets ....................................................................................8

National Association of Drug Court Professionals, "Veterans Treatment CourtLegislation," last visited on Jun. 1 2011, http://www.nadcp.org/JusticeForVets-Legislation ..............................................................................................................................8

iii

Patton Regrets Slapping Soldier, SAN ANTONIO LIGHT, 1(Nov. 23 1943) ..............................16

Private PVrote Family About Being Cuffed, PoRT ARTHUR NEWS, 6 (Nov. 24, 1943) ..............16

Reprimandfor Patton is Denied, FRESNO BEE, 1(Nov. 22 1943) ............................................16

Richard Norton-Taylor, Executed WYVI Soldiers to be Given Pardons, GUARDIAN, Aug,16,2006at1 ..........................................................................................................................16

RICHARK KULKA ET AL., THE NATIONAL VIETNAM VETERANS READJUSTMENT STUDY

(1990) .....................................................................................................................................9

U.S. ARMY CENTER FOR HEALTH PROMOTION AND PREVENTITVE MEDICINE,EPIDEMIOLOGIC CONSULTATION No. 14HK-OB 1U-09: INVESTIGATION oF HoMICIDES

AT FORT CARSON, COLORADO NOVEMBER 2008-MAY2009, ES-1 (July 2009) ....................15

Walter A. Lunden, Military Service and Criminality, 42 J. CRIM. L. CRIMINOLOGY &POLICE Sci. 766, 766 (1952) ..................................................................................................13

iv

INTEREST OF THE AMICUS

The Amicus, Veterans Defense Project (VDP), Nvas founded to educate the criminal justice

system on the very unique issues veterans face when they become involved in our criminal

justice system. VDP seeks to contribute to and expand upon the work of the National Veterans

Foundation (NVF) a non-profit, 501-C(3) human service organization at the forefront of assisting

veterans from past and current conflicts with reintegration, chemical dependency, homelessness,

service-related mental health disorders, and criminal justice matters, including the establishment

of a trial team and the ptiblication of Def'ending the Vietnam Combat Veteran in 1989.

In February of 2014 the VDP, with the NVF's collaboration, published The Attorney's Guide

to Defending Veterans in Criminal CouNt, which brings together medical expertise on service-

related mental and physical illness, cultural considerations in dealing with veteran-clients, and

legal expertise on techniques to most effectively advocate for the veteran-defendant. The authors

of this Brief are also authors and editors of that book, and thus have a distinct interest in the

treatment of military personnel in the criminal justice system.

STATEMENT OF FACTS

Amici adopt the Statement of Facts set forth in Defendant-Appellant's Merit Brief.

1

ARGUMENT

Proposition Of Law: The Issues and Questions Raised by State v. Belew are of Public orGreat General Interest and so this Court Should Reconsider its Motion to Dismiss asImprovidently Accepted and Decide the Case on its Merits.

The question of how to treat veterans with service-related disorders at the time of sentencing

is indeed a question. of public and great general interest.l Two separate amicus briefs were filed

in this matter, representing a wide array of concerned Ohio citizens who are passionate about this

cause. In fact, the Ohio Legislature recently amended Ohio's felony sentencing law to include

the consideration of service-related disorders, putting the issue at least at the forefront of

legislator's minds.2 More tellingly perhaps, is the fact that this very Court was divided 4-3 in its

decision to dismiss.3

As Justice O'Neil so eloquently put it "this court has the rare opportunity to lead with

clarity."4 This Court should reconsider its dismissal of Mr. Bewel's case and provide that clarity

to trial and appeals judges who are seeking to understand and properly consider a veterans

service-related disorder at the sentencing stage. There are two reasons for this; first, national

legal trends that recognize and support veterans with service-related disorders show that the

issues presented by Mr. Bewel's case are of great interest, and second, this Court should take the

1 "When a case has been accepted for determination on the merits pursuant to S.Ct.Prac.r. 7.08,the Supreme Court may later find that there is no substantial constitutional question or questionof public or great general interest, that leave to appeal in a felony case was not warranted, or thatthe saine question has been raised and passed upon in a prior appeal. Accordingly, SupremeCourt may sua sponte dismiss the case as having been improvidently accepted or summarilyrevers or affirm on the basis precedent." Ohio S.Ct.Prac.R. 7.10.2 OHto REv. CODE ANN. §2929.12(F) (2013) "The sentencing court shall consider the offender's

military service record and whether the offender has an emotional, mental, or physicalcondition that is traceable to the offender's service in the armed forces of the United Statesand that was a contributing factor in the offender's commission of the offense or offenses."

3State v. Belew, Slip Opinion No. 2014-Ohio-2964, ¶ l..

4Ia'. at¶35.2

opportunity to correct injustices of the past by clarifying Ohio's standards of review and

sentencing guidelines.

1. CRIMINAL JUSTICE TRENDS AND PRECEDENT DEMONSTRATE PUBLIC ORGREAT GENERAL INTEREST IN VETERNS AND THEIR SERVICE

RELATED DISORDERS

The American criminal justice system is coming to the understanding that we cannot discard

this generation of criminally-involved veterans in the same way we did in the past. Evidence

abounds that there is a definite legal trend that favors treatment and reintegration over

incarceration. This is largely based on a wide recognition that we failed our veterans in past

generations by focusing too narrowly on punishment as discussed in Section II. Further, given

the advanced medical knowledge of seivice-related disorders, these disorders are increasingly

relevant to the veteran-defendant's mental capacity at every stage of a criminal proceeding, and

not because they excuse the veteran-defendant's conduct.

Service-related disorders are particularly important in the sentencing context. A report by the

Bureau of Justice Statistics analyzing data as of 2004 stated "veterans had shorter criminal

records that nonveterans in State prison but reported prison sentences and expected to serve more

time in prison than nonveterans... On average veterans expected to serve 22 months longer than

nonveterans."5 Fortunately, federal, state, and local governments are beginning to recognize the

unique situation of combat veterans in criminal courts. A few states have passed legislation to

expressly allow the Court to consider the Defendant's service and service-related mental illness

at sentencing; and many counties across the country have created veterans specialty courts to

3

directly address veterans' unique situations and to supervise the veterans rehabilitation. These

are all evidence of a popular-public interest in providing veteran-defendants special

consideration.

A. U.S. Supreme Court Recognizes Service-Related Disorder Relevant inSentencing

In Porter v. McCollum,6 The United States Supreme Court reversed both the Florida

Supreme Court and the Ilth Circuit Court to save Mr. Porter's life, holding that a defense

attorney's failure to present a Defendant's combat service and related trauma as a mitigating

factor at sentencing in a capital case is proper grounds for a Strickland claim of prejudicially

ineffective assistance of counsel.8 In that opinion, the Court stated that,

It is ... unreasonable to conclude that Porter's military service would be reducedto "inconsequential proportions," simply because the jury would also have learnedthat Porter went AWOL on more than one occasion. Our Nation has a longtradition of according leniency to veterans in recognition of their service,especially for those who fought on the front lines as Porter did. Moreover, therelevance of Porter's extensive combat experience is not only that he servedhonorably under extreme hardship and gruesome conditions, but also that the jurymight find mitigating the intense stress and mental and emotional toll that combattook on Porter. The evidence that he was AWOL is consistent with this theory ofmitigation and does not impeach or diminish the evidence of his service. To

5 MARGARET NOONAN & CHRIST'OPHER MUMOLA, VETERANS IN STATE AND FEDERAL PRISON,2004, Bureau of Justice Statistics Special Report 1 (2004).

6 Porter v. McCollum, 130 S. Ct. 447 (2009).7 The Supreme Court in Stricklana'v. Washington, 466 U.S. 668, 687 (1984), created a two-parttest to determine whether a "convicted defendant's claim that counsel's assistance was sodefective as to require reversal of a conviction ... First, the defendant must showthat counsel's performance was deficient. This requires showing that counsel made errors soserious that counsel was not functioning as the `counsel' guaranteed the defendant by the SixthAmendment. Second, the defendant must show that the deficient performance prejudiced thedefense. This requires showing that counsel's errors were so serious as to deprive the defendantof a fair trial, a trial whose result is reliabl.e. Unless a defendant makes both showings, it cannotbe said that the conviction or death sentence resulted from a breakdown in the adversary processthat renders the result unreliable."8 Porter v. McCollum, 130 S.Ct. at 455.

4

conclude otherwise reflects a failure to engage with what Porter actually wenttlirough in Korea.9

Similar to the defendant in Porter, the fact that Mr. Bewel had a less than stellar service record

does not impeach or diminish the evidence of Mr. Bewel's service. Regardless, the U.S. Supreme

Court found service-related disorders of great enough interest to grant certiorari. Prior to this

landmark decision, other courts around the Country were also interested, and finding ways to use

the criminal justice system to promote rehabilitation and reintegration of these veterans.

B. Minnesota, California and the Federal Courts Recognize Service-RelatedDisorders Relevant in Sentencing

In 2007 and 2008, along with other Minnesota veterans advocates, Brockton Hunter led an

effort to draft and pass legislation that addresses deficiencies in the way the Minnesota's criminal

courts deal with psychologically-injured veterans.10 The law is designed to ensure that mental

health diagnoses and available treatment options are taken into account in sentencing a veteran

whose combat trauma played a role in his or her criminal offense. The law gives the judge the

tools to make an informed decision, recognizing that probationary treatment is often preferable to

a single stint of incarceration in getting to the root of the problem and ensuring long-term public

safety. Completion of treatment is a condition of probation and failure to follow through can

result in execution of a jail or prison sentence. The language of the Minnesota law reads as

follows:

(a) When a defendant appears in court and is convicted of a crime, the court shall inquirewhether the defendant is currently serving in or is a veteran of the armed forces of the UnitedStates.

9 Id. (emphasis added) (internal citations omitted).10 Minn. Stat § 609.115 Subd 10.

5

(b) If the defendant is currently serving in the military or is a veteran and has been diagnosed ashaving a mental illness by a qualified psychiatrist or clinical psychologist or physician, thecourt may:

(1) order that the officer preparing the report under subdivision I consult with the UnitedStates Department of Veterans Affairs, Miimesota Department of Veterans Affairs, oranother agency or person with suitable knowledge or experience, for the purpose ofproviding the court with information regarding treatment options available to thedefendant, including federal, state, and local programming; and

(2) consider the treatment recommendations of any diagnosing or treating mental healthprofessionals together with the treatment options available to the defendant inimposing sentence.ti

In 2007, California also updated past legislation that had been found ineffective at

dealing with the veterans returning from wars in Afghanistan and Iraq.12 California Penal Code,

§ 1170.9 states that:

(a) In the case of any person convicted of a criminal offense who could otherwise be sentencedto county jail or state prison and who alleges that he or she committed the offense as a resultof sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, ormental health problems stemming from service in the United States military, the court shall,prior to sentencing, make a determination as to whether the defendant was, or currently is, amember of the United States military and whether the defendant may be suffering fromsexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, ormental health problems as a result of that service. The court may request, through existingresources, an assessment to aid in that determination.

(b) If the court concludes that a defendant convicted of a criminal offense is a person describedin subdivision (a), and if the defendant is otherwise eligible for probation and the court placesthe defendant on probation, the court may order the defendant into a local, state, federal, orprivate nonprofit treatment program for a period not to exceed that which the defendantwould have served in state prison or county jail, provided the defendant agrees to participatein the program and the court determines that an appropriate treatment program exists.

1 i Minn. Stat § 609.115 Subd 10.12 Adam Caine, Fallen fNom Grace: Why Treatment Should Be Considered for Convicted CotrabatVeterans Suffering fi^om Post Traumatic Stress Disorder, 78 U.M.K.C. L. Rev. 215, 225-29(2009).

6

Like the Minnesota statute cited above, California has given judges the express authority to

utilize treatment over incarceration while not mandating that the Courts follow any particular

type of sentence.

What the Minnesota and California statutes do, in effect, is make the veteran's service a

relevant sentencing consideration, just as the new version of United States Sentencing Guidelines

§ 5H1.11 did in 2010 in stating that "_Military service may be relevant in determining whether a

departure is warranted, if the military service, individually or in combination with other offender

characteristics, is present to an unusual degree and distinguishes the case from the typical cases

covered by the guidelines."

This multi-state and federal push for such sentencing mitigation guidelines shows that the

public's interests have shifted towards placing a higher priority on the treatment of a veteran's

service-related impairment and less of a priority on a strictly punitive approach to veteran-

defendants. It seems that, amidst the recent wars in Iraq and Afghanistan, the American public

and the policy makers working on their behalf have made an affirmative decision not to relive

the mistakes made when the Vietnam generation of veterans first came in contact with the

criminal justice system, as discussed in Section II.

C. The Popularity of Veterans Treatment Courts Suggests Public Interest

Veterans treatment courts are further evidence of this trend in changing policy interests and

show that this trend is not limited to the legislative branch. As of June 2, 2011, there were at

least 62 county veterans courts in 26 different states.13 By December 2011, The Atlantic,

reported that "Nearly 80 veterans courts have sprung up across the country over the past four

7

years, and 20 more are expected to open by the end of this year," 14 showing a rapid. growth of

these courts across the country that signals a national acceptance of their underlying principles.

Texas, California, Colorado, Illinois, Oregon and Virginia have passed legislation specifically

permitting the establishment of county veterans treatment courts.l' Other states have done so

directly through county court systems.

These courts follow a variety of models, but all offer diversion to judicially supervised

rehabilitation programs if the veteran is willing to accept responsibility for his or her actions and

get help for any underlying conditions, usually PTSD and/or substance abuse. This structure is

quite similar to long-used drug and mental health specialty court models, but, by using the

existing structure and resources of the VA, these courts are an attractive option to districts that

are under budget strains. Even in districts where there is not a veterans problem-solving court,

this fiscal reasoning is a strong argument in favor of probationary treatment that is unique to

veteran-defendants. These courts are not "get out of jail free" courts that are showing veterans a

preferred status. Rather, these courts often use longer terms of probation than the defendant

would be exposed to in a standard criminal court in order to provide the court with the proper

leverage to ensure the veteran stays committed to the treatment program until rehabilitated. The

level of oversight and accountability is often very demanding. By having other veterans hold

13 National Association of Drug Court Professionals, "Justice for Vets: The NationalClearinghouse for Veterans Treatment Courts," accessed on Jun. 1 (2011),http://www.nadep.org/JusticeForVets.14 Kristina Shevory, Why Veterans Should Get Their Own CouNts: As Troops Surge Back IntoDomestic. Life, Incarceration Isn't Always the Answer, ATLANTIC, Dec. 2011.15 National Association of Drug Court Professionals, "Veterans Treatment Court Legislation,"last visited on Jun. 1 (2011), http://www.nadcp.org/JustieeForVets-Legislation; Tex. Health andSafety Code, §617 (2010); Cal. Penal Code, § 1170.9 (2010); Col. Revised Stat., §§ 13-3-101and 1'l-5-144 (2010); 730111. Compiled Statutes Ann. 167 (2010); Or. Rev. Stat§ 135.886(2)(j)(3) (2010); and Code of Va., § 2.2-2001.1 (2010).

8

the veteran-client accoluitable, these courts "offer the most easily accepted `tough love'

support."16

The Supreme Court decision in Porter, sentencing statutes and veterans courts have arisen

out of the public's recognition that when our Nation is sending young men and women to prepare

for and fight wars, as San Diego Prosecutor William C. Gentry so perfectly stated, "you are

unleashing certain things in a human being we don't allow in civic society, and getting it all back

in the box can be difficult for some people."17 The nationwide recognition for the need to

properly consider a veteran's service-related disorder, makes the questions raised by Mr. Bewel's

case of public and great general interest. As such, the Court. should reconsider its motion to

dismiss.

II. THE HISTORY OF CRIMINALLY INVOLVED VETERANS REVEALS THEINJUSTICE THAT OCCURS WHEN SERVICE-RELATED DISORDERS ARE

NOT CONSIDERED IN CRIMINAL PROCEEDINGS

By reconsidering its motion to dismiss, this Court has an opportunity to correct the wrongs of

the past. Post-Traumatic Stress Disorder ("PTSD") was not formally recognized by the

psychiatric community and, more importantly, the Veterans Administration, until 1980, too late

for many psychologically injured Vietnam veterans. Their lives and their trust in the system

were often shattered by that time and many refused treatment when aiid if it was eventually

16 Judge Michael Daly Hawkins, Conzing Home: Accommodating The Special Needs of MilitaryVeterans to the Criminal Justice S'ystem, 7 OHIO ST. J. CxrM. L. 563, Spring, 570 (2010).17 Id at 569 (quoting Deborah Sontag & Lizette Alvarez, Across America, Deadly Echoes offForeign Battles, N.Y. TIMEs, Jan. 13 (2008) (quoting William C. Gentry, San Diego CountyProsecutor and Iraq Veteran).

9

offered. Ultimately, 31 % of male Vietnam veterans and 27% of female Vietnam veterans have

had PTSD in their lifetime.l s

According to a July 2012 report from the National Academy of Science's Institute of

Medicine, up to 20%, approximately 500,000, of Iraq and Afghanistan war veterans are suffering

from PTSD.19 The report also acknowledges that, because of underreporting and delayed onset of

PTSD, the true numbers are likely higher.20

In addition to PTSD, the wars of the twenty-first century have introduced a new battlefield

injury: traumatic brain injury ("TBI"). TBIs are typically caused by the concussive shock waves

of improvised explosive devices resulting in physical injuries to the brain as opposed to PTSD's

psychological injury of the mind.21 TBIs are more common in modem wars because advances in

body armor and medical procedures have made it possible for the body to survive injuries that

nearly destroy the brain and, thus, the functionality of the person.22 TBIs are particularly

relevant in the criminal justice context because recent studies are suggesting a potential tie

between TBIs and impulsive violence.z3

1$ RICHARD KULKA ET AL., THE NATIONAL VIETNAM VETERANS READJUSTMENT STUDY (1990).

19 COMM. ON THE ASSESSMENT OF ONGOING EFFORTS IN THE TREATMENT OF POSTTRAUMATIC

STRESS DISORDER, INST. OF MED. OF THE NAT'L ACADEMIES, TREATMENT FOR POSTTRAUMATIC

STRESS DISORDER IN MILITARY AND VET'ERAN POPULATIONS: INITIAL ASSESSMENT 39 (2012).

20 Id

21 DR. CHRISANNE GORDON, M.D., AND DR. RONALD GLASSER, M.D., THEATTORNEY'S GUIDE TO

DEPkNDLNG VETERANS IN CRIMINAL COURT.' TRAUMATIC BRAININJURIES (TBl): THE INVISIRLE

IN.IURY201 (BROCKTON D. HUNTER, ESQ. AND RYAN C. ELSE, ESQ., 2014).

22 Id

23 WARREN Lux, A NEUR01'SYCHIATRIC PERSPPECTIV"E ON TRAUMATIC BRAIN INJURY, 44 JOURNAL OFREHABILITATION RESEARCH AND D'EV. 951-961 (2007); SEEALS©, SHERISE FERGUSON &EMIL COCCARO, dIISTORY OF 1^IILD TO 1VDDER.ATE TRA UNIATIC BRAIN I7VJURYAND AGGRESSIONIN PHYSICALLY HEALTHY PARTICIPANTS WITH AND WIT H© UT PERSoNALITY DISORDER, 23 J.PERSONALITY DISORDERS 230-239 (JUN. 2009)(FINDING THAT AGGRESSION SCORES WEREELEVATED AS A FLiNCTION OF TBI).

10

History shows that veterans from every conflict have returned home with ser-vice-related

disorders and that, as a result, they committed disproportionate levels of criminal offenses.

Rather than addressing the underlying disorder, our Nation's past approach has often been to

brutally punish these veterans in hopes of preventing their aberrant behavior. This failed.

Rather, generations of veterans were pushed out of civil society, leading to greater criminal

problems such as motorcycle gangs and unchecked substance abuse. With the current generation

of combat veterans, we have the opportunity to use a criminal offense as an intervention point at

which we can ensure treatment of the underlying service-related disorder and better reintegration

with the civil society on whose behalf the veteran gave so much.

A. Post-War Crime Waves Involving Combat Veterans Following Every MajorConflict Evidence the Inherent Link between Combat Trauma and CriminalBehavior

Historic research reveals a pattern of veteran-committed crime waves following every major

conflict. Though scientific studies have only recently been conducted on this issue, a look back

at history through this lens clearly reveals this pattern. It was, for instance, largely Civil War

veterans who put the "wild" in the "wild west."

Following the American Revolutionary War, a marked increase in crime caused many states

to institute new laws and penalties in response.24 A Revolutionary veteran, describing conditions

in South Carolina after the war, wrote, "highway robbery was a common occurrence, and horse-

stealing so frequent that the Legislature made it a crime punishable with death."25

Studies conducted. after the Civil War, World War I and World War II found a

disproportionate number of veterans in the criminal justice system. Following the Civil War, a

24 ALLAN NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 1775-1789 454(1924).

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great wave in crime and disorder was documented.26 One prison in Pennsylvania reported a

large influx of prisoners in the last three months of 1865, "most in poor physical condition, and

nine-tenths incapacitated and demoralized by the war."27 In 1866 they reported an

unprecedented influx, three-fourths of Nvhom had fought in the war and were "shattered" by their

experiences.z8 Nationwide, in 1866 two-thirds of all commitments to state prisons in northern

states were men who had seen service in the war.Z9

A similar pattern of veteran-committed crimes was noted in Europe following WWI. In

1920, one English writer observed:

The war has destroyed with a hand more desolating than the Black Death or themost terrible plagues of history. But its consequences do not end withdestruction. The people who have taken serious part in it are not the same peopleas those who went into it. . . . They are changed peoples. 'They have passedthrough an experience which has altered habits, temper, outlook, in five year,more than fifty years of ordinary life would have altered them. Some of theconsequences of that experience are obviously bad. The epidemic of crimes ofviolence is the natural sequel of war, for men learn in that school to think little oflife. The same increase of crime of this kind followed the Napoleonic Wars bothhere and in France.30

25 Id. (citing JOSEPH JOHNSON, TRADITIONS AND REMINISCENCES, 400 (1851)).

26 Edith Abbott, Crime and the War, 9 J. AM. INST. CRIM. L. & CRIMINOLOGY 33, 41 (1918).27 Id. at 43.2sld

29 E.C. Wines & Theodore Dwight, The Reformation of Prison Discipline, N. AM. REv., Vol.CV, 580-81 (1867), available athttp://books.google. com/books?id=Kn8FAAAAQAAJ&pg=PP7&1pg=PP 7&dq=Ticknor+and+Fie1ds,+The+North+American+Review,+Boston,+V o1.+C V,+1867&source=bl&ots=5JWYeUkEQ4&sig=01 AOd6Lbo61 dQYVxwFXhEvCXwYc&h1=en&sa=X&ei=_OSDT-S8Boqk8AST6Pj sBw&ved=OCEIQ6AEwBQ#v=onepage&q=Ticknor%20and%o20Fields%2C%20The%20North%o20American%20Review%2C%20Boston% o2C%20Vo1.%20CV%2C%o201867&f=false.30 Edith Abbott, The Civil War and the Crime Wave of 1865-70, 1 SoC. SERV. REv. 212, 212(1927).

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In the United States, post-WWI veteran-committed crimes were also a cause for graveconcern. The President of the Institute of Criminal Law and Criminology, in his annual addressin 1919, stated:

Last year saw the ending of the War. From England to France, and in our owncountry, statistics have been gathered which show that serious crime, which hadbeen on the decrease during the period of the War was again stalking in theforeground.... The newspapers are filled with accounts of crimes of such daringand boldness as to make the average citizen stand aghast at the manner in whichthe security of life and rights of property are ruthlessly disregarded andimperiled."31

A study entitled Military Service and Criminality,32 published in 1952, a few years after

WWII, tallied the number of men committed to 1.1 prisons in the upper-Midwest during 1947,

1948 and 1949 and found that fully one third of them were veterans.

Similarly, a study of Vietnam veterans receiving care for PTSD in the VA system during the

mid-1980's found that almost half of all Vietnam veterans suffering from PTSD had been

arrested or in jail at least once, 34.2 % more than once, and 11.5 % reported being convicted of a

felony.33

In the case of the Vietnam generation, involvement in the criminal justice system has

lingered for decades. A 1998 Department of Justice study found that more than 20 years after

the war, approximately a quarter million veterans, a large portion from the Vietnam era, were

still housed in our nation's prisons.34 A similar study in 2004 found that Vietnam veterans were

still a majority within the prison system, but the study reported that "despite a median age gap of

31 Betty Rosenbaum, The Relationship Between lVar and Crime in the United States, 30 J. CRIM.L. & CRIMINOLOGY 722, 730 (1940) (citing Hugo Pam, Annual Address of the President of theInstitute of Criminology, 10 J. AM. INST. CRIM. L. & CRIMINOLoGY 327, 327 (1919)).32 Walter A. Lunden, Military Service and Criminality, 42 J. CRIM. L. CRIMINOLOGY & POLICESCi. 766, 766 (1952).33 RICHARD KULKA ET AL., THE NATIONAL VIETNAM VETERANS READJUSTMENT STUDY (1990).

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nearly 20 years, there was little measurable difference between State prisoners who served in the

military during the Vietnam-era and those who enlisted after the close of the Cold War (1990 or

later)."3' Both groups were convicted of the same types of crimes, had similar drug patterns, and

had a majority reporting persisting mental health problems.36

Those who attempt to deny the link between war trauma and crime often cite this same 1998

Department of Justice study cited above, pointing out that veterans are imprisoned in smaller

percentages than the civilian population. What they overlook, however, is that since WWI, the

military has aggressively screened out those it deems psychologically or morally unfit. During

the call-up for World War II, for instance, 1,681,000 men were rejected and excluded from. the

draft for emotional, mental, or educational disorders or deficiencies.37 Another 500,000 were

subsequently separated from the Army during training on psychiatric or behavioral grounds.38

This recruit screening continued through Vietnam and into our current conflicts. Thus, any

direct comparison of incarceration rates between veterans and the civilian population is flawed.

Given the military's screening, the fact that veterans are incarcerated at even close to the same

rates as the civilian population is alai-ming and is prima facie evidence that military service,

itself, played a role.

The most recent and definitive tie between combat trauma and criminal behavior comes from

the military, itsel£ In 2009, following a highly-publicized wave of homicides and other violent

34 BUREAU OF JUSTICE STATISTICS, VETERANS IN PRISON OR JAIL 1 (2000), available at1-ittp://www.ojp.usdoj.gov/bjs/.35 BUREAU OF JUSTICE ST A'TISTICS, NCJ 217199, VETERANS IN STATE AND FEDERAL PRISON,2004 6 (2007), available at http:Ubjs.ojp.usdoj.govlcontent/publpdflvsfp04.pdf.36 Id

37 DAVID H. MARLON'dE, RAND CORP., PSYCHOLOGICAL AND PSYCHOSOCIAL CONSEQUENCES OF

COMBAT AND DEPLOYMENT 48 (2001).38 Id

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crimes committed by recently-returning combat soldiers on and around Fort Carson, Colorado,

the Army commissioned a study called the Epidemiological Consultation, or EPICON for

short.39

The EPICON team found two major factors contributed to post-deployment violent behavior:

(1) repeated deploynlents and (2) the intensity of combat in those deployments. The study

concluded with a carefully-worded assertion that "survey data from this investigation suggest a

possible association between increasing levels of combat exposure and risk for negative

behavioral outcomes."40 In other words, the military finally confirmed what civilian sociologists

had long believed: combat contributes to crime. Soldiers come home different. Mr. Belews

came home different. By sending young men and women to war, a country is unintentionally

bringing violence back on itself.

B. PTSD's Stigma Has Led to Aggressive Punishment of Veterans with Service-Related Disorders

Though PTSD has been informally recognized for millennia, approaches to dealing with it

have varied widely. After battle, many Native American and other tribal societies segregated

their warriors from the rest of the tribe, sometimes for weeks, where they were physically

cleansed of the blood from battle, and spiritually cleansed of their traumatic experiences. Some

of the rituals were intended to transfer to the stain of "bloodguilt" from the warrior to his people

as a whole. This shared responsibility was believed to lift the spiritual weight of combat from

39 U.S. ARMY CENTER FOR HEALTH PROMOTION AND PREVENTIVE MEDICINE, EPIDEMIOLOGIC

CONSULTATION NO. 14-IIK-OBIU-09: INVESTIGATION OF HOMICIDES AT FORT CARSON,

COLORADO NOVEMBER 2008-MAY 2009, ES-1 (July, 2009).40 Id

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the shoulders of the warrior and to ease his transition back into peace. Only when the warrior

was ready to retinite with the tribe, and the tribe with the warrior, did the reunion occur.41

Industrialized nations and their militaries have historically taken a tougher approach with the

psychologically injured. Soldiers suffering psychological injuries have often been stigmatized

and even punished. During WWII, General George Patton famously struck at least two

psychologically injured soldiers he came across in Army hospitals, calling them cowards and

malingerers. The press picked up on the story, causing a swell of anger among the American

people and Patton was nearly relieved of his command.42

Some psychologically injured troops received the ultimate punishment. The British

government recently issued posthumous pardons to 306 of its soldiers from World War I who

were executed without trial at the battle front for cowardice or desertion, recognizing today that

they likely suffered from PTSD.43

Not only were psychological injured soldiers killed during WWI, they were also tortured.

Dr. Lewis Yealland working at a French hospital was taking over treatment of a twenty-four year

old private who had received nine months worth of the following types of treatment for war-

related mental illness: "he had been strapped in a chair for twenty minutes at a time while strong

electricity was applied to his neck and throat; lighted cigarettes had been applied to the top of

41 EDWARD TICK, WAR AND THE SOUL, HEALING OUR NATION'S VETERANS FROM

POSTTRAUMATIC STRESS DISORDER, 209-216 (Quest BOoks, 2005).

42 Pt°ivate Wrote Family About Being Cuff ed, PORT ARTHUR NEws, 6 (Nov. 24, 1943);Reprinzand for Patton is Denied, FRESNO BEE, 1(Nov. 22, 1943); Patton Regrets SlappingSoldier, San Antonio Light, 1(l0iov. 23, 1943); Gen. Patton Slap Haunts Former GI,CHARLESTO1v DAILY MAIL, 12 (Mar. 25, 1970); and GI Slappe.d by Gen. Patton in Sicily Is Dead,CEDAR RAPIDS GAZETTE, 7 (Feb. 2, 1971).43 Richard Norton-Taylor, Executed WWI SoldieNs to be Given Pardons, GUARDIAN, Aug. 16,2006, at 1.

16

this tongue and hot plates had been placed at the back of his mouth."44 The goal of such

treatment was "necessary to supply the disciplinary element which must be invoked if the patient

is one of those who prefer not to recover."45 Dr. Yealland apparently believed that the failures of

this young private's treatment were only the result of too little electro-shock therapy. Speaking

of his oNvri treatment of the private, he said,

After a few more hours of electricity the patient could say ah, then whisper, thenstammer. But just when it seemed to be working, the patient developed a tremorin his left arm. This too was attacked by electricity, but before it disappeared ithad to be chased from the right arm, left leg, and finally the right leg with eachpart similarly treated.46

In the aftermath of WWII, the United States VA was guilty of similar treatment of our

veterans. 'I'he VA had 102,000 hospital beds full and 20,700 patients in waiting, 60% of which

were in need of psychiatric care.47 Maintaining these patients could cost as much as $35,000 per

year, but George Washington University professor Walter Freeman created the ice pick

lobotomy to be able to treat certain psychoses ¢8 Using a hammer, doctors would tap an ice pick

through the patient's eye socket and into the prefrontal lobe, which was then severed from the

rest of the brain.49

World War Il's most decorated soldier, Audie Murphy, is credited with forcing the United

States government to study PTSD and extend benefits to psychologically injured veterans.

Audie returned home an American Hero and went on to become a major Hollywood movie star.

44 B. SHEPARD, A WAR OF NERVES: SOLDIERS AND PSYCHIATRISTS IN THE TWENTIETH CENTURY77 (Harvard University Press, 2001).41 Id. at 76-77.46 Id. at 78 (emphasis added).47 B. SHEPARD, A WAR OF NERVES: SOLDIERS AND PSYCHIATRISTS IN THE TWENTIET'H CENTURY,33 (Harvard University Press, 2001); and Department of Veterans Affairs, Office of FacilitiesManagement, 70 Years of VA History (Apr. 2001).49 ROBERT YOUNGSON AND IAN SCHOTT, MEDICAL BLUNDERS (1\TYU Press, 1996).4 9 ra.

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He also secretly suffered severe PTSD. He became a chronic alcoholic and prescription drug

addict who later admitted he slept with a loaded gun under his pillow every night after the war.

His wife reported many incidents of domestic violence including an instance in which he held a

gun to her head. Audie eventually sought help for his condition and then broke the taboo against

publicly discussing war-related psychological injuries.

Today, the military is making strides in removing the stigma of PTSD among its ranks.

Troops heading into combat are educated about PTSD and encouraged to seek help if they need

it. The military also now deploys "combat stress officers," basically battlefield psychologists, to

the front lines to screen and treat troops as they come out of battle.

'Though the military is making progress in removing the stigma, it still has a long way to go.

The military is under unprecedented strain as it struggles to meet the demands of two extended

conflicts. Military leaders are often caught between a rock and a hard place. Though they are

now trained to recognize and encourage treatment of mental health disorders, they are also under

pressure to field combat-effective units. Sometimes they relegate mental health treatment to a

secondary priority. A series of 2007 media reports found systemic failures in mental health

treatment of psychologically injured troops at Ft. Carson, Colorado.50 The reports foLU1d a

pattern by leadership of denying their troops' requests for treatment, stigmatizing those who

were getting help and even kicking some out of the military. The reports spurred investigations

50 Daniel Zwerdling, Gaps in ltlental Cc.cNe Pef°sist for Fort C'arson Soldiers, NAT'L PUB. RADIO,May 24, 2007.

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by Congress and the Department of Defense which. confirmed remaining flaws in the military

mental health svstem.51

The very culture of the military is also an issue. Military culture, by necessity, puts great

value on strength, both physical and mental. Soldiers sent into combat face the most horrific

experiences imaginable. Only the strong survive. Over the centuries, military training has

become ever-more sophisticated in conditioning troops to operate effectively and complete their

missions, even when faced with imminent death. A soldier's reputation within a combat unit is

largely based on how "cool" they are under fire.

This "warrior" mindset becomes deeply ingrained and many psychologically injured warriors

deny they have a problem, even to themselves. A 2008 RAND Corporation study found that, of

the 1.7 million who had served in the war zones at that time, over 300,000 were suffering from

PTSD, and another 320,000 from Traumatic Brain Injury (TBI).52 Only about half of these

troops, it found, had reported or sought help for their condition.53 According to RAND, those

veterans who declined help did so out of fear that they will lose the respect of their comrades,

jeopardize their security clearance or harm their chances of promotion.54 Many veterans carry

this value system with them even after they leave the military and come home.

51 Daniel Zwerdling, Pentagon Report Cites Mental Health Concerns, NAT'L PUB. RADIO, June15, 2007.52 T. TANIELIAN, L.R. JAycox, T.L. SCHELL, G.N. MARSHALL, M.A. BURNAM, C. EIBNER, B.R.

KARNEY, L.S. MEREDITH, J.S. RINGEL, M.E. VAIANA, AND THE INVISIBLE WOUNDS STUDY TEAM,

RAND CoRP., MG-720/1-CCF, INVISIBLE WOUNDS OF WAR: StrMMARY AND

RECOMMENDAT'IONS FOR ADDRESSING PSYCHOLOGICAL AND COGNITIVE INJURIES 64 (2008)

[hereinafter Invisible Wounds of War].53 id

54 Id.19

C. Iraq and Afghan Veterans Present an Opportunity to Correct Past Mistakes

More than 1.8 million Americans have now served in Iracl or Afghanistan. The RAND study

cited above is so troubling because it shows that the same problems seen in past conflicts are

prevalent in the current generation of veterans.5'

The vast majority of Vietnam veterans served a single twelve month tour in-country while

many veterans of Iraq/Afghanistan will have served two, three, four or more tours. "People

aren't designed to be exposed to the horrors of combat repeatedly. And it wears on them,"

General George Casey, Army chief of Staff, stated in a 2008 press conference.56 General Casey

was announcing the results of a recent Army study which found that levels of PTSD climb

significantly with repeated combat deployments.57

Evidence indicates that combat operations in Iraq are very intense. According to a 2004

study conducted by the Walter Reed Army Institute of Research, which surveyed combat

infantrymen just back from Iraq:

- 94 percent reported receiving small-arms fire;- 86 percent reported knowing someone who was injured or killed;- 68 percent reported seeing dead or seriously injured Americans;- 51 percent reported handling or uricovering human remains;- 77 percent reported shooting or directing fire at the enemy;- 48 percent reported being responsible for the death of an enemy combatants;- 28 percent reported being responsible for the death of a noncombatant.58

ss Id56Greg Zorova, Findings ofArmy Health Study, Fifth of Soldiers at PTSD Risk, USA TODAY,Mar. 6, 2008, available at http://www.usatoday.com/news/world/iraq/2008-03-06-soldier-stress_N.htin?csp=34).57 Id. (citing Mental Health Advisory Team (MHAT) V, supra note 4).58 Charles Hoge, Carl Castro, Stephen Messer, Dennis McGurk, Dave Cotting, & RobertKoffman, Department of Psychiatry and Behavioral Sciences, Walter Reed Army Institute ofResearch, Combat Duty in Iraq and Afghanistan, Hental Health Problems, and Barriers to Care,351 NEw ENG. J.oF MED. 13-22 (2004).

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Note that the above-study was conducted in 2004, early in the war and the troops surveyed in

that study had only completed one combat tour. Many of those same troops have now likely

served two, three, four or more tours and the statistics cited above would certainly be much

higher today.

IJnfortunately, the Department of Veterans Affairs (VA) was not initially provided sufficient

additional funding to handle the large influx of Iraq and Afghan vets seeking PTSD treatment.

Several highly publicized scandals, one of which involved a Minnesota Marine who killed

himself after reportedly being turned away from a VA hospital, have forced the goverrunent to

significantly increase resources toward necessary psychological care.59

Today, care for our psychologically injured veterans is improving. Our offices have

represented many veteran-clients from the current conflicts. What we are seeing is a criminal

justice system that is learning from the lessons of the past and a VA that is adapting its care to

provide substantive treatment to veterans with service-related mental health and chemical

dependency problems. One example of such is the VA's Residential Rehabilitation Treatment

Programs (RRTP). These are a series of intensive inpatient treatment programs aimed directly at

the veteran's specific needs such as P'I'SD through the PTSD-RRTP, chemical dependency

through the Substance Abuse-RRTP, and occupational therapy through the Compensated Work

59 Kevin Giles, This Marine's Death Came After He Served in Iraq: When Jonathan SchulzeCame Home From Iraq, He Tried to Live a Normal Life, But the LVar Kept That FromHappening, MINNEAPOLIS STAR TRIBUNE, Jan. 26, 2007; Charles M. Sennott, Told to Wait, AMarine Dies: VA Care in Spotlight after Iraq War Veteran's Suicide, BOSTON GLOBE, Feb. 11,2007; Dan Ephron and Sarah Childress, How the U.S. Is Failing Its u'ar Veterans, NEWSWEEK,Mar. 5, 2007.

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Therapy - Transitional Residence (CWT-TR).60 These developments show that there has been

recognition that the status quo was unsatisfactory and that our veterans deserve better recognition

and treatment of their service-related disorders.

We urge the Coui-t to continue this trend of giving our veterans the treatment and recognition

they deserve by reconsidering the motion to dismiss. The clarity this Court can provide to trial

and appellate courts will bring us one step closer to correcting past mistakes.

CONCLUSION

This case sets the tone for the future treatment of our veterans at the sentencing stage of their

criminal proceedings. Without guidance from this Court, future trial judges may repeat the

mistakes of the past by considering service-related disorders "excuses" - suggesting that the

veteran offender was not willing to accept the consequences of his actions - while in reality

service-related disorders are a piece of the puzzle that explains the veteran offender's conduct

and entitles him to consideration of a lesser sentence. This Court's deliberation of the questions

presented by Mr. Bewel's case will prevent injustice not only to Mr. Bewel, but also to the other

veterans who will come into Ohio's criminal courts. The Court should reconsider its motion to

dismiss.

60 DEP'T OF VETERANS AFFAIRS, MENTAL HEALTH RESIDENTIAL REHABILITATION TREATMENTPROGRAM (MH RRTP), Veterans Health Administration Handbook 1162.02, 4 (Dec. 22, 2010),available at http:/fwwwl .va.gov/vhapublications/ViewPublication.asp?pub_ID=2354.

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Respectfully submitted,

9BROCKTON D. HUNTER

BROCKTON D HUNTER, PA

3033 EXCELSIOR BLVD.

SUITE 550

MrNNEApOLIS, MN 55416Attorneys for the AmicusVeterans Defense Project

CERTIFICATE OF SERVICE

I, Brock Hunter, cerfify that a copy of the foregoing was sent via electronic mail to Assistant

Prosecuting Attorney David Cooper, dcooper@co.lucas.oh.us, and also Stephen Hardwick,

Assistant Public Defender, Stephen.hardwick@opd.ohio.gov, on this 21st day of July, 2014.

BROCK HUNTER

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