This specialty court has been in existence for about a year, and MoCo prosecutors share how they built it from the ground up.
It is not Justin Frost’s best day. He’s drinking again. The point where he should have stopped has come and gone. Now he’s driving. Drifting from street to street in his ex-wife’s white Saturn sedan, Justin wanders through a maze of residential streets in Montgomery, Texas. It is 1:00 a.m., late May. Justin is disoriented, upset, and highly intoxicated. He stops in front of a stranger’s house not sure what to do next. Suddenly the lights of a private security guard appear in his mirror. The guard, thinking Justin might be lost, approaches. Justin pulls forward, rolling over the curb. They speak briefly. There is anger in Justin, drunken anger and confusion. The guard is alarmed. He un-holsters a can of OC spray, threatens to use it, and does. Justin’s anger erupts into rage and now the security guard and two deputies who have just arrived are in a struggle. Justin, 6-foot-2 and 275 pounds, fractures the hand of one deputy as they roll around on the ground together. He kicks at another deputy, piling up two felonies in as many minutes. The day ends with Justin bruised, tired, sick to his stomach, and lying on the cold concrete floor of the Montgomery County Jail.
That was a bad day, but for Justin Frost (not his real name) it’s been worse.
A few short years before his arrest, Justin was working as an Army medic in Afghanistan. Much to his surprise, Justin found himself not treating soldiers but stitching Afghani children back together after an errant bombing raid hit a wedding party. Justin dealt with multiple child victims on that day, some as young as 4 years old. One child had part of his skull missing, and more children were missing limbs. Justin attempted desperately to apply tourniquets to stop the flow of arterial blood among tears, chaos, and confusion. He saw some of these children die. It was not what he expected to do, it was not what he wanted to do, but he did it because he was sworn to do so. It was a bad day. There were many others like it in Afghanistan.
More bad days followed when he returned to the States. Justin struggled to deal with his own wounds, the deep emotional kind, sustained from his difficult service 8,000 miles from his home.
I met Justin in my capacity as an assistant district attorney in Montgomery County. I began work there in August 2012 after 13 years of military service and six years as a plaintiff’s lawyer at a civil firm in Houston. Unknown to me at the time, Brett Ligon, the Montgomery County District Attorney, had been actively pursuing a veterans’ court for this county. Brett and others were concerned about the alarming number of veterans entering the criminal justice system. The reasons for the increase in these cases remain a point of debate; regardless, the mental health and substance abuse issues that often result from combat service were contributing factors. (Some studies have indicated that around one in five veterans has symptoms of a mental health disorder or cognitive impairment1 and that as many as one in six veterans of the campaigns in Iraq and Afghanistan suffer from a substance abuse issue.2) Significantly, Brett had taken the time to talk to veterans and their families, and he understood the problem in flesh-and-blood terms, not just dry statistics. Brett wanted to do what he could to help, and he wanted to do it the right way.
Flowing from his interest in setting up a veterans’ court, Brett asked me and several others to assist him with this goal. Brett thought I might be helpful in this regard because of my past military service.3 Our first assistant, Phil Grant, a graduate of the Virginia Military Institute, took the lead on the program, and he and I received Brett’s orders to move forward with the program.
Phil and I started our efforts with a series of committee meetings in the county. We also began speaking to a wide assortment of dedicated people who have made the program work in other parts of the state. Two of those individuals were Loretta Coonan and Henry Molden, both of the Veterans Administration (VA) and both deeply committed to the veterans’ court program.4 After several months of staffing and researching the issues, we initiated our program. Justin Frost was our first participant.
One of the more challenging aspects of initiating the program was answering the question of who would be allowed to participate. Many of our defendants had some military service in their past, but not all of these defendants were appropriate candidates for the program.
The veterans’ court program is sometimes misunderstood as a “get out of jail free card” for veterans. That is not the case. We do not believe that military service, in and of itself, means that a defendant in the criminal justice system deserves a pass. It does not honor veterans to treat them this way. Instead, in this program, we are trying to identify those veterans whose military service has created conditions that led them into the criminal justice system when they would likely not otherwise have gone down that path. In particular, we are attempting to identify veterans who have experienced combat and as a consequence of their service need assistance that can be provided in the context of the criminal justice system. The assistance we provide is very costly in terms of resources and time, and frankly it requires some risk on our part and on the part of the community. If not every veteran is a suitable candidate (and not every veteran is a suitable candidate), then how to go about identifying who is? Our response was to consider veterans in terms of eligibility and suitability.
Eligibility and suitability
To be eligible, a candidate for our program would need to meet several requirements. With respect to the nature of the charge, the veteran must have a felony charge currently pending (and by rare exception a misdemeanor charge).5 Generally, all but the most serious offenses make a veteran eligible. For example, defendants charged with murder, indecency with a child, and sexual assault would not be eligible for the program.6 With regard to criminal history, the general rule is that the veteran not have a prior felony conviction of the type that, if the charge were currently pending, would make them ineligible. With regard to military status, we require that the veteran have either an “Honorable” or “General, Under Honorable Conditions” discharge.7
Assuming the veteran meets these requirements, we would then have the candidate evaluated by a trained psychiatrist. We are very fortunate to have a particularly gifted psychiatrist, Dr. Andrea Stolar, who screens our veterans.8 Dr. Stolar usually meets with the veterans at her office; however, she has on occasion very graciously travelled to the Montgomery County Jail to conduct her interviews there when necessary. Among other issues, Dr. Stolar attempts to determine whether the veteran is suffering from a brain injury, mental illness, or mental disorder that resulted from service in a combat zone or other similar hazardous duty area. Dr. Stolar also attempts to determine whether the previously mentioned conditions materially affected any criminal conduct at issue in the case.9 Following the interview, Dr. Stolar provides a recommendation as to eligibility.10
If the veteran is eligible, the next question is whether he is suitable for the program. Whether a veteran is suitable is a judgment call that our office makes as part of team staffing effort. This part of the process begins with a meeting with the veteran, his attorney, and myself as the program manager. We discuss the program in frank terms, and I try to answer questions and get a sense of the veteran’s real interest in the program. Following this meeting, I will then discuss the case at length with our Veterans Justice Outreach Specialist (VJO), Wade Cooper. Wade, who is an employee of the VA and himself a skilled counselor, works with the veterans from the beginning of the process. Wade provides excellent insight into both the suitability and eligibility of the candidate. After Wade and I reach agreement on a candidate, I then discuss the case with the felony division chief and any victims. With this input, I then submit the veterans’ packet to the first assistant for approval. When appropriate, the first assistant discusses the case with the district attorney and together they consider all the circumstances and the interests of the victim and the community. The process is intended to be careful, deliberate, and informed.
Justin Frost met all the eligibility requirements, and he was certainly suitable for the program. Justin ’s service in the Army began in 1996 and ended in 2004. At the time he was arrested he was 37, divorced, and a father of three. He was working as an x-ray technician at a Conroe Hospital. Justin had no criminal history. He was, however, suffering from PTSD and struggling with substance abuse. He needed help, but it’s very likely he would not have sought that help without the shadow of felony charges looming over him. After a careful review of his case, he was determined to be both eligible and suitable. The next step in his application and in our process was to have the veteran sign a pretrial diversion contract with our office. The pretrial diversion contract is an agreement where the district attorney agrees to hold any prosecution while the veteran is in the program and to dismiss the pending case when the veteran successfully completes the program. In return, the veteran agrees to comply with the normal conditions of probation and to cooperate fully with the veterans’ court program. We have found that this arrangement with veterans works extremely well, as it allows us to tailor a contract to a particular individual and his situation. Additionally, the prospect of a dismissal at the end of the program provides a great incentive for a struggling veteran.
Since Justin’s enrollment in August 2013, another six candidates have been accepted into it. At the time of this writing, roughly twice that number of candidates have been considered and determined to be either not eligible or not suitable or both. Some candidates were rejected because they had significant criminal history that pre-dated their military service. One candidate was rejected when he seriously misrepresented his combat service and resulting injuries. Most candidates who are rejected do not meet the basic eligibility requirements or are not deemed suitable candidates given the nature of the offense.
How it works
For those veterans admitted into the program, these individuals have found that their challenges are just beginning. In our county, the participant has to report to community supervision personnel and do everything that a normal probationer would do. This includes random urinalysis, paying restitution, maintaining an ignition interlock device, reporting to an officer, etc. On top of those requirements, the candidate begins a series of phases with the veterans’ court program. The phases are designated as Stabilization, Treatment, Transitional, Maintenance, and Aftercare. The first four phases are generally 90 days in length with the Aftercare phase lasting 180 days. The length of each phase is a guideline and can change depending on the needs of the veteran and his compliance with the program. If the participant is not fully compliant, the time in a particular phase can be extended.
The requirements in each phase depend upon each veteran’s needs. Generally, though, the treatment “modalities” consist of substance abuse treatment (which may require psychosocial assessment), emotional behavioral assessment, a health screen, weekly case management, medications as required, and residential treatment or hospitalization in certain cases. With respect to mental health treatment, candidates may receive biopsychosocial assessment, “Seeking Safety,”11 anger management, cognitive processing therapy, psychosocial rehabilitation, family therapy, psychodrama, OEF/OIF coping skills, Combat Nightmare Group, women’s groups, and other treatments as required. In addition, the candidate must make two court appearances a month along with residential court case management visits. It is a very difficult, demanding program. As one respected Texas judge stated on the program 60 Minutes, the veterans “do more programs on this probation than any other program in the state.”12
In Montgomery County, our compliance hearings are overseen by Judge Marc Carter, the presiding judge of the 228th District Court in Harris County. Judge Carter is a veteran himself, and he oversees the Harris County Veterans’ Court. We chose to team up with Judge Carter for several reasons including his leadership, resources, and “mass.” (“Mass” is one of the nine “principles of war” and refers to collecting combat power at a time or place to obtain the desired results. In this context, we are referring to collecting enough veterans at a particular time and place to accomplish our objectives.)
As we began to study the problem of creating a veterans’ court in our county, we spent time with the very successful veterans’ court program in neighboring Harris County. We were impressed by a number of talented and passionate people in that program, people like the previously mentioned Loretta Coonan, who was so instrumental in starting the program in Harris County and ours as well. There were many other talented people in the Harris County program, and Judge Carter was its clear leader. We noted how expertly he handled his veterans and how well he worked with all the team members. Judge Carter demonstrates the perfect balance of firmness and patience that these struggling veterans need. We witnessed multiple examples of encouragement from Judge Carter, encouragement that clearly made an impact on the men and women in his court. We also saw him sanction veterans when necessary, sanctions that could range from a verbal reprimand to short terms of confinement. In short, we saw that Judge Carter was both perfectly positioned and well equipped to provide leadership to men and women who desperately needed it.
In addition to Judge Carter’s leadership, we saw that he had marshaled resources that, frankly, were beyond our ability to field in our county. Dr. Stolar, whom we previously mentioned, attended staffing meetings before each compliance hearing, and her input was invaluable. And she was not alone. Judge Carter enlisted the help of a number of people in various fields of expertise and with considerable experience in dealing with important issues such as mental health and substance abuse. In addition, a wide variety of volunteers and non-profit agencies from the greater Harris County area routinely attend these hearings. These individuals provided a number of extremely helpful services such as employment assistance as well as informing veterans of other benefits that were available to them.
We also noticed something else we thought very important with regard to “mass.” We began to see that the participants had essentially created a de facto military unit, with Judge Carter as the commanding officer and various court personnel and VA staff as subordinate leaders. We saw that the veterans policed themselves, so to speak, with the more senior, experienced veterans mentoring the junior and new participants. We saw that a great motivator for the veterans was to not be embarrassed in front of this large group of their brothers- and sisters-in-arms. It occurred to us, however, that to create this kind of de facto unit would require a fairly large number of participants (the Harris County program runs at around 100 participants). Our county is much smaller than Harris County, with roughly 500,000 people, and we estimated that our veterans’ court program would probably never exceed more than 20 veterans at a time, and 20 veterans was simply an insufficient number to create the “mass” needed for the group to become the functioning unit we witnessed in Harris County. We wanted our veterans to join this thriving unit in Harris County with Judge Carter as their commander, at least with respect to the compliance hearings. For these reasons and several others we opted to send our veterans to Harris County for the compliance hearings, and this has worked extremely well. Our hope is that for mid-size and small counties, this model of what amounts to a regional veterans’ court might pave the way for more Texas veterans to gain access to this great program.13
Why we do this
Overall, this is hands-down one of the most rewarding aspects of my job as a prosecutor for the State of Texas. Although I am no longer a member of the Armed Forces, I continue to have great admiration, affection, and appreciation for those men and women who have served. This program allows me to serve them. Our district attorney and first assistant feel as strongly about these men and women as I do. Although we realize that we cannot help every veteran who crosses our path, we can help some of them.
As for Justin Frost, his bad days—or at least his really bad days—are, we hope, a thing of the past. Justin is nearing the final phase of the program. He’s sober and his anger issues have greatly improved. He has committed no new offenses. He’s working again and back with his family. He’s helping other veterans in the program. The deputy whose hand he fractured is encouraged by Justin’s progress and glad that Justin is doing so well. Justin Frost is serving his country again, but these days he’s doing so as a good citizen.
That’s a good day for all of us.
1 Tanielian, Terri, et al. “Invisible Wounds of War: Summary and Recommendations.”, A Joint Endeavor or Rand Health and the Rand National Security Research Division. Pages 30-31. Web. http://justiceforvets.org/sites/default/files/files/RAND%20invisible%20wounds%20of%20war.pdf.
2 Seal, K. H., Bertenthal, D., Miner, C. R., Sen, S., & Marmar, C. (2007). Bringing the war back home: Mental health disorders among 103,788 US veterans returning from Iraq and Afghanistan seen at Department of Veterans Affairs facilities. Archives of Internal Medicine, 167, 476-482. Referenced in the National Survey on Drug Use and Heath Report, November 1, 2007 “Serious Psychological Distress and Substance Use Disorder Among Veterans. Found at www.samhsa.gov/data/2k7/veteransDual/veteransDual.htm.
3 My prior military service consisted of time as a Military Police Platoon Leader in the 1st Cavalry Division and as the MP Operations Officer at Fort Hood followed by assignments as a military prosecutor and defense attorney in Korea, Fort Bragg, Fort Hood, and Iraq.
4 Loretta Coonan, perhaps more so than anyone involved in this effort, deserves the credit for navigating the procedural hurdles in setting up a program. She provided a number of documents that were invaluable in starting our program, and I am happy to share those templates with those who are interested in beginning their own programs. I can be reached at [email protected] Henry Molden of the VA’s office was also extremely helpful in setting our program. Additionally, Shannon Davis, my brother veteran and the ADA veterans’ court program manager in Harris County, was incredibly gracious in his help to us, for which I am forever grateful.
5 Some counties have a misdemeanor veterans’ court program, but we rarely admit veterans charged with a misdemeanor. The reason is that the requirements of the program are so onerous and the program so lengthy that only the danger of an impending felony conviction is sufficient to incentivize participation, particularly when things get difficult. We have made some exceptions in the appropriate cases.
6 Charges that would generally make a veteran ineligible would include drug delivery; murder; indecency with a child; aggravated kidnapping; sexual assault; robbery; injury to a child, elderly, or disabled person; and offenses with a finding of a deadly weapon.
7 Military discharges fall within two categories: punitive and administrative. Punitive discharges result from courts-martial. Enlisted and non-commissioned officers may receive a dishonorable discharge or bad-conduct discharge. Warrant and commissioned officers may receive a dismissal as a result of a general court-martial. Administrative discharges are outside of the courts-martial process, and all ranks can receive them. The three characterizations of administrative discharge are Honorable; General, Under Honorable Conditions; and Other than Honorable. Every service-member receives a DD-214 when they are separated from service. This form will explain both the nature and reason for the discharge as well as summarize the veterans service. Unless the veteran has a Honorable or General, Under Honorable Condition discharge, they generally won’t be eligible for VA services and thus ineligible for the program.
8 Dr. Stolar is the Director of Residency Education, Menninger Department of Psychiatry and Behavioral Sciences, Baylor College of Medicine in Houston.
9 Chapter 124 of the Government Code governs veterans’ court programs. Section 124.002 requires a finding of the described mental condition and a link of that condition to the charged offense. The most important result of this requirement is simply that not every veteran who commits an offense is eligible for the program.
10 Dr. Stolar will continue to work with the veteran even after entry into the program. She is an active member of the staffing sessions for each veteran and attends many of the compliance hearings.
11 “Seeking Safety” is a treatment program focused on individuals with PTDS and substance abuse issues. It was developed by Dr. Lisa M. Najavits of the Harvard Medical School. For more information see www.seekingsafety.org/3-03-06/aboutSS.html.
12 You can find the program at www.cbsnews .com/news/coming-home-justice-for-our-veterans/#comments. If you are at all considering beginning a veterans’ court program in your county, watch this show. I promise you that it is worth 12 minutes of your day.
13 Section 124.004 of the Government Code authorizes regional programs.