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Military Law,
Law Practice

May 14, 2020

California’s Veterans Treatment Courts during the pandemic

Up and down the state, judges, lawyers, court personnel and justice partners have been dedicating themselves to their mission of trying to keep veterans in their various court programs from slipping backward during this time of crisis. Hats off to their innovations and novel approaches, and dare I say sometimes saintly acts.

Moore eileen web

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

Up and down the state, judges, lawyers, court personnel and justice partners have been dedicating themselves to their mission of trying to keep veterans in their various court programs from slipping backward during this time of crisis. Hats off to their innovations and novel approaches, and dare I say sometimes saintly acts.

Communicating with Veterans

Even without a national emergency, many justice-involved veterans tend to self-isolate in a dangerous way, often plagued with feelings of grief, guilt, confusion and shame. As we are painfully aware, suicide of veterans is a growing concern. Once in a collaborative court program, however, self-isolation is almost impossible since they are required to go to appointments with their probation officer, someone from the Department of Veterans Affairs, various mental health professionals and, of course, the court. Additionally, most regularly meet with court coordinators and mentors.

Normally, court appearances involve a discussion between the judge and the veteran about the vet’s progress because courts and collaborative teams realize that injured veterans heal better when they get personal attention, especially from the judge. That contact between the veteran and the judge when the veteran stands before the court and the judge asks about the veteran’s family, job, education and progress has proven to be invaluable. The veteran’s mental health is largely at the center of whatever set the vet off course.

In the world of isolation from others when the courts are closed and many people are working from home, unable to personally meet with at-risk veterans, the professionals realize the potential for problems, not only with veterans’ mental health, but physical health as well. A UCLA researcher has reported that loneliness can increase inflammation in the body and may be as dangerous to one’s health as smoking and worse than obesity. Vets in distress who are left alone may slide into substance abuse or even suicide.

To keep in contact, courts have been trying various ways to communicate with the veterans. Using some kind of electronic platform seems like an obvious solution. One huge consideration for the courts, however, is the Health Insurance Portability and Accountability Act of 1996. Public Law 104-191 codifies HIPAA. The statute itself does not contain a privacy rule, but required the Secretary of Health and Human Services to publicize standards for the electronic exchange of health information. The Privacy Rule HHS adopted establishes national standards for the protection of certain health information. The Privacy Rule applies to any health care provider who transmits health information in electronic form. To a great extent, collaborative courts these days are health care providers, overseeing the treatment veterans receive. When the courts communicate with veterans by electronic means to discuss mental and physical health progress, HIPAA is implicated.

Some courts try to communicate with veterans over Zoom, but VA personnel have been ordered not to participate on that platform because Zoom is not HIPAA-compliant. The word on the street is that Zoom is becoming more and more security conscious each day as virtual meetings have increased, and that the VA is in the process of reevaluating its position. Other courts have tried BlueJeans, Doxy.me, WebEx, Skype, Skype Business, FaceTime, Splashtop and the old fashioned telephone. Judicial Council staff is working on ascertaining which are HIPAA-compliant. This platform issue seems to be a concern all over the country as the National Judicial College sent out a one-question survey to all judges, inquiring which platform they are using during the present crisis.

Of course, some of the veterans either do not have electronic access or are not digitally savvy. In those instances, some courts are lending out cell phones for communications between the veteran and the court as well as collaborative team members.

Ex Parte Communications

Judges and lawyers are ethically prohibited from speaking with only one side of a court matter under various circumstances. However, without a court date, a therapy session or an appointment with a probation officer, some of these veterans may be wallowing in loneliness and considering self-harm. Someone needs to find them and at least talk to them to make sure they are taking any required medications, have food, shelter and are not bent on harming themselves. That person may be the judge or some member of the court team, the prosecution team or the defense team.

Police officers are obviously part of a prosecution’s team. Nonetheless, in one county a few particularly empathetic officers have been tracking down the veterans and spending some time speaking with them, just letting the vets know that people care about them. These interactions are keeping the veteran from being re-arrested. The judge in that county stresses, “but it has to be the right officer.” In another county, the judge tries to find the veterans over the telephone and talks with them from the empty courtroom. Another judge described his talks with veterans as “basically a tune-up for someone who needs it.” One judge is sending little notes saying, “keep up the good work.”

Trying to find a veteran to make a welfare check during this time of a global pandemic just has to constitute reason to bypass ethical rules involving ex parte communications. In fact, even under non-emergency circumstances, in all of our collaborative courts, there are times when it can amount to cruelty to not engage in an ex parte communication with someone in distress. This virus has underscored the need for both the courts and the bar to consider carving out exceptions to their ex parte communications rules in collaborative court situations.

Testing for Drugs and Alcohol

Veterans who commit crimes often engage in substance abuse. The big concerns of those involved with Veterans Treatment Courts are to keep the veterans out of jail and in treatment. A major way the treatment courts are able to gauge the progress veterans are making is by random drug and alcohol testing.

Some courts have halted drug and alcohol testing during the pandemic, but others have found a way to test from afar, even under the present difficult circumstances. Sometimes the probation officer or a team member delivers a test kit to the veteran’s home, and stands six feet away as the veteran’s throat is swabbed. Other courts mail test kits to the veterans. By way of some virtual and visual contact, the veteran swabs his or her throat as a professional observes. The swab is tested on a strip for either drugs, alcohol or both. The test kits are able to detect amphetamine, cocaine and several other drugs. Other test kits have strips to reveal alcohol consumption.

Other Practices During the Crisis

Courts and collaborative team members are working diligently to keep justice involved veterans in compliance with court requirements. They are striving to increase veterans’ resilience under our present challenging times.

Consideration has been given to actually picking up veterans at home to drive them to court. However, team members are concerned about their safety if they are alone in a car with a criminal defendant. Some courts hold regular court sessions over Zoom or CourtCall. Some are holding regular court sessions, but only for those in custody. Other courts have suspended regular court hearings, or have no hearings at all for those veterans who are in compliance.

In counties where there are veteran mentors, the mentors are doing their best to telephone the justice-involved vets. In some counties, warrants are being held. In others, if the veteran is close to completion of the program and has progressed well, courts are terminating jurisdiction early.

Mental health providers usually meet personally and regularly with veterans in treatment. During this emergency, many are using Telehealth. Under ordinary circumstances, the collaborative team meets personally in either a meeting room or a closed courtroom prior to calendar call. The team discusses the progress and plans for each veteran. During COVIV-19, many teams have been meeting virtually. At times, team members are in contact with the veteran by some virtual means.

One court has a set time each day for an optional Zoom meeting. Those veterans who want to join take part. That way, veterans connect with some team members and other veterans. They simply chat among themselves.

One court is recommending that veterans go online to find the Veterans Yoga Project and take yoga lessons. That project has volunteer yoga instructors who are dedicated to do their part to serve those who served. Over 100 free yoga classes are virtually taught each week for veterans and their families.

Conclusion

Courts are learning some valuable lessons during this pandemic. When courts open up again, the number of cases called in a court session will probably be limited. Social distancing and masks will likely be required. Courts will have to actively keep litigants, mentors and team members physically separated. Under such an arrangement, much of the important personal contact and interaction among the veterans themselves, that has kept our collaborative courts on the cutting edge, will be lost. Those changes will occur at the same time there will likely be an increase in new referrals to Veterans Treatment Courts. New referrals s usually come from judges presiding over criminal cases. But since most courts are not in session during the emergency, new referrals have been almost nonexistent.

At the same time and somewhat ironically, considering the highly structured programs our courts have in place, there is a surprising anecdotal observation several judges have made. The less formal and more relaxed the interaction, the more meaningful it seems to be to the justice-involved veteran. During the present virtual interactions, the judge and the veteran appear to be closer and are actually looking directly into each other’s eyes in a seemingly more personal way than the formal trappings of a courtroom permit. They are able to discuss progress and goal setting in an intimate manner not possible in a crowded courtroom. Under these circumstances, veterans seem to be less guarded and more forthright with the court.

Some of the emergency measures, such as virtual face to face conversations between the judge and the veteran have been highly valued by veterans during the crisis. It just might be that some of the innovations will become a new normal. 

#357665

Ben Armistead

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