Veterans of the wars in Afghanistan and Iraq are increasingly using post-traumatic stress disorder (PTSD) and brain injury as a defense in criminal trials. And that strategy has prompted a debate in legal circles, as to whether that defense is legitimate, or an insult to vets who weather PTSD and brain injury without committing criminal acts.
There are two recent cases where the PTSD defense has been used and drawn media attention. In one of the cases, Joshua Stepp, 28, a former Army soldier who was in combat in Iraq, was charged with first-degree murder in the death of his 10-month-old stepdaughter in North Carolina. The Los Angeles Times wrote about the case in detail earlier this month.
The charges were gruesome. Stepp was accused of banging his infant stepdaughter’s head on a carpeted floor, putting toilet paper down her throat and sexually molesting her in November 2009.
Stepp’s defense attorney argued that because of PTSD, Stepp could not have premeditated the killing, as is required in first-degree murder, which potentially carries the death penalty, according to The Times. The lawyer asked the jury to convict Stepp of second-degree murder, which is not a capital-punishment crime.
Stepp testified that he didn’t remember much about the night of the killing, and that the slaying “just like happened.” Stepp also talked about his duty in Iraq, which included seeing his fellow soldiers being blown up and once having to put body parts in a pizza box.
The PTSD defense didn’t work. On Sept. 8 a jury convicted Stepp of first-degree murder and sexual assault. But the panel deadlocked on whether to impose the death penalty, and the judge sent Stepp to prison for life with no parole.
The second PTSD-defense case is in Tampa, Fla., where ex-Marine captain Scott Sciple is charged with DUI manslaughter, according to the Associated Press. In April 2010 Sciple was driving down an interstate the wrong way when he hit another car head-on and killed its driver. He is awaiting trial on the charges.
Sciple had a hero’s background, receiving three Purple Hearts and a Bronze Star in Afghanistan and Iraq. But in combat he was physically and mentally wounded, his lawyers contended. Sciple had sustained traumatic brain injury and once almost died from blood loss.
Sciple’s lawyer is mounting an insanity defense, arguing that because of his TBI and PTSD, Stiple blacked out the night of the fatal accident.
According to AP, the wife of the victim, Pedro Rivera, is holding the military at least partially to blame for her husband’s death, maintaining that it should have given Sciple help for his PTSD. And as AP noted, ”remarkably,” in a 860-page report on the case the Marine Corps agreed that veterans need more help.
In a letter regarding that investigation, AP reported, one Marine investigator wrote, “It is folly to expect a wounded mind to diagnose itself, yet our Marines still depend on an anemic system of self-diagnosis and self-reporting.”
The Los Angeles Times, based on Joshua Stepp’s trial, wrote an editorial Thurday headlined “Perils of the PTSD Defense.” In a nutshell, The Times came down on this defense.
“Like other defendants, veterans deserve to have mitigating factors taken into account by the criminal justice system,” the newspaper wrote. “But there is the danger that post-traumatic stress disorder will become a talisman for leniency where none is justified – and a synonym for criminal tendencies. That would be unfair to other defendants and demeaning to the military.”
I’d agree that TBI and PTSD shouldn’t be used with reckless abandon as a defense. They both can have a devastatingly negative impact on behavior, and that fact should never be dismissed or downplayed, especially when talking about combat vets. Each criminal act has to be looked at on a case-by-case basis. But the impact of TBI and PTSD should never be underestimated.
Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
firstname.lastname@example.org :: 800-992-9447 :: Attorney Gordon S. Johnson, Jr.