Courts likely to see more vets with PTSD

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When the state Supreme Court denied earlier this year an Iraq War veteran's plea to allow an insanity defense in his Altoona murder trial, Justice Seamus P. McCaffery promised a dissenting statement would follow.

He delivered late last month, with a commentary on how the court should recognize a likely increase in veterans with post-traumatic stress disorder, or PTSD, coming through the courts, while acknowledging that it's unusual for the court to be asked to weigh in on the appropriateness and legality of a "particular defense to capital murder charges."

"There is ample reason to anticipate that when members of our armed forces return from combat duty and are charged with the commission of criminal offenses, there will be an increased incidence of an accused's seeking to present an insanity defense based upon mental infirmities related to his or her military service," Justice McCaffery said in his five-page dissent in Commonwealth v. Horner.

Justice McCaffery added that there is a growing number of people returning from military service who suffer from post-traumatic stress disorder and other mental illnesses that are a direct result of their military service, and who commit crimes directly attributable to the "deleterious effects of combat service."

"The diagnosis of PTSD often leads to the veteran's being treated with prescription medication, which may itself have an adverse impact upon the veteran's mental health," Justice McCaffery said. "Such appears to have been the case here. Therefore, in my view, the instant issue presented a matter of great potential importance to many persons other than just the parties involved here."

Nicholas Horner did three tours of combat duty in Iraq. In 2009, after returning home from duty, he shot and killed two people in an Altoona fast-food restaurant. His defense attorneys sought to introduce an insanity defense based on Horner's alleged "substance-induced delirium."

He was on anxiety medicine benzodiazepine, according to Horner's defense attorney, Tom Dickey of Altoona.

The Blair County trial judge prohibited the use of the defense and refused to certify the issue for appeal, so Mr. Dickey filed a King's Bench petition with the Supreme Court. The court halted the trial scheduled for February 2012 in order to consider the issue, but about a month later denied Horner's petition.

Justice McCaffery, at the time, dissented and promised a dissenting statement would follow.

Horner's trial proceeded in March, and he was convicted of two counts of first-degree murder. He was sentenced to life in prison plus additional time for the lesser, related charges.

Justice McCaffery said in his June 27 dissent that the Supreme Court should exercise plenary jurisdiction in criminal cases when it is of the opinion that a lower court significantly diverged from protecting a defendant's right to a fair trial.

"I believe that the record in this case provided an adequate basis for this court to have assumed plenary jurisdiction in a matter of immediate public importance and for the purpose of causing right and justice to be done," Justice McCaffery said.

The justice said the trial court relied upon Section 308 of the Pennsylvania Crimes Code to deny Horner's defense. That section provides that a voluntary intoxication or a voluntary drugged condition cannot be a defense to a criminal charge.

But Justice McCaffery said the record supported Horner's right to an insanity defense in this case. Justice McCaffery pointed to Horner's diagnosis of substance-induced delirium, the fact that substance-induced delirium is "decidedly" different than intoxication and that Horner's admitted consumption of alcohol did not play a critical role in the development of his delirium.

The fact that Horner's expert could not unequivocally rule out the consumption of alcohol as playing some role in Horner's mental state should not have been enough to preclude the insanity defense, Justice McCaffery said.

Mr. Dickey said he would use Justice McCaffery's dissent in his post-trial motions with the trial judge in an effort to get Horner a new trial.

He also noted that Horner had no prior record and blacked out from a substance-induced delirium before shooting the two men.

Justice McCaffery's dissent does not mark the first time he has voiced concern for veterans' issues. A former Marine, he was a proponent of the 2010 opening of a Veterans Court in the Philadelphia Municipal Court.

He said at the time that veterans courts are important to give opportunities to veterans to avoid criminal records. The problem-solving court is geared toward dealing with veterans who find themselves in the legal system, often because of PTSD or other brain injuries.

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Gina Passarella: gpassarella@alm.com or 215-557-2494. To read more articles like this, visit www.thelegalintelligencer.com.


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