The Impact of Domestic Violence Law Practicum
The Historic Legal Journey of Domestic Violence Victim Cheryl Jones
By Andrew Cohen
With a rapt Berkeley Law audience hanging on her every word, Cheryl Jones spoke candidly about what she endured before killing her abusive husband in 1985. Each revelation was more than the jury at her first murder trial knew about the ongoing violence—because attorneys could not use battered women’s syndrome as a defense until 1992.
But in 2001, a domestic violence habeas law enabled imprisoned California women to challenge their convictions through evidence of abuse and its psychological effects. After spending 21 years in prison, Jones became California’s first woman to be retried—and acquitted. Released in 2006, she is now filing a monetary claim for wrongful conviction with the California Victim Compensation Board. Julie Shah ’09 and Berkeley Law Domestic Violence Practicum Director Nancy Lemon are filing an amicus letter brief on her behalf.
“I never thought I’d get out of prison,” said Jones. “I had hope that God would let me one day tell my story to somebody, but I never believed I’d be walking through those gates.”
Jones had ample reasons to be pessimistic. Only 4 percent of imprisoned women are granted parole in California—and of that small group, more than 60 percent are returned to prison through the governor’s veto power.
Patterns of Abuse
Jones told the crowd she had been beaten daily by her first husband, with whom she has three children, and then by her second husband, Frank Orange. Jones recounted how Orange made her commit robberies with him and how he abused her sexually, mentally, and physically.
“When you’re young, and you’re in a community where kids often see their mothers getting beaten, you think that’s all just part of life,” Jones said. “I didn’t know parents weren’t supposed to beat their kids until much later in life. You’re taught to stay strong, stand by your man no matter what, things like that. I had no idea how dysfunctional that was.”
Marisa Gonzalez ’05, who works for the California Habeas Project and introduced Jones, said more than 60 percent of women in California prisons suffered domestic violence before being incarcerated—and more than 80 percent sustained some type of physical abuse.
After her first trial resulted in a hung jury, Jones pleaded guilty to second-degree murder on the advice of her attorney.
“I’d spent $30,000 of my parents’ money, and now I was looking at another trial,” Jones said. “My lawyer told me I wouldn’t serve more than 7½ years in prison if I took the deal, and if I didn’t I could very well be in prison for life. Not knowing the law and figuring my lawyer was an expert, I went along with it.”
Her abuse continued while incarcerated, Jones told the crowd, asserting that male corrections officers should be prevented from working in women’s prisons. “You have to have a strong mind in prison,” she said. “If you don’t, they’ll plainly take it away from you. People in prison have to take care of each other. We rehabilitate each other, because no one there shows an interest in helping female prisoners in any way.”
A New Opportunity
With the passage of the domestic violence habeas law in 2001, eligible women convicted before August 29, 1996 could challenge past convictions. In early 2002, lawyers working with San Francisco non-profits began making presentations at California women’s prisons. Because Jones fit all three criteria—tried before the cut-off date, in jail via a plea bargain, and imprisoned for harming her domestic partner—Jones had a new chance for freedom.
After harboring resentment and regret from her dealings with the lawyer at her first trial in 1985, Jones became exhilarated—and pleasantly stunned—at how quickly her fortunes with the legal profession could change.
Public defenders Greg Spiering and Kelle Malone-Westbrook, with pro bono support from other attorneys and law students, persuaded the jury at Jones’ new trial to reject her murder change from 21 years earlier. Sacramento domestic violence expert Linda Barnard also delivered key testimony to help Jones get acquitted.
For their efforts, Spiering and Malone-Westbrook shared the Charles E. Maylen III Freedom Fighter Award, given annually by the Stanislaus County Criminal Courts Bar Association.
“They were just unbelievable,” Jones said. “Greg Spiering, he had paperwork to support or disprove what every witness said during my trial. And law students, you guys are really something else. You dig deeper, you want to be the best, and you work that much harder. Please find a little time to help my other friends in prison. They have a voice that needs to be heard.”
Several DV Law class members and guests, 11/3/08:
left to right, back row: Marisa Gonzalez (alum, guest speaker), Jessica Kawamura, Nancy Lemon, Star (friend of Cheryl Jones), Hilly Tytel, Cheryl Jones (guest speaker), Yvette Lindgren, Justin Hoogs.
left to right, front row: Ayako Miyashita, Heather Warnken, Erica Franklin, Gail Migita, Minh-Chau Nguyen
Nancy Lemon and Her DV Class
By Yun-Hsien Diana Lin
In early 1990’s, when Taiwan still had no law for domestic violence, Judge Feng-Shian Gao studied in Boalt Hall School of Law, U.C. Berkeley. She enrolled in Nancy Lemon’s Domestic Violence Seminar and was deeply impressed by both the way Nancy conducted this class and the way domestic violence was dealt with in the United States. She went back to Taiwan after her study finished and started to write a bill named “Domestic Violence Prevention Act”, which is based on “Model Code on Domestic and Family Violence” in the US. This bill gained support of a few women’s groups as well as legislators in Taiwan. After much endeavor by people who care about domestic violence, the Act was passed by Taiwanese Congress in 1998. In the same year, Judge Gao published a book on domestic violence and the law, which is a collection of her articles on this topic over the years.
Ten years after judge Gao, I found my way to Nancy’s DV class. It was a fabulous class. Nancy provided students with many facets of the problems of DV. Her class not only covered the way the police, courts, prosecutors, medical personnel, and social workers deal with DV, but also “less mainstream” concerns about this problem. For example, violence in gay and lesbian relationships, undocumented victims, and the potential conflict of children’s welfare and victim’s parental rights. The more I learned about intimate violence in the US, the more I realized how less I knew about the situation in Taiwan. I started to read extensively on DV information in Taiwan and was shocked by the research and statistics. At that time (2002), the DV law in Taiwan (the first in Asia) has been in function for 4 years, and more truth has been exposed since.
Finally I was into DV law so much that I changed my research topic from same-sex marriage to the responses of legal system to DV, and wrote my doctoral dissertation on this topic. Nancy personally proofread my dissertation and those discussion we had benefited my research a lot. Now I am an assistant professor of law in National Tsing Hua University in Taiwan, I taught family law and a seminar on intimate violence. Further, I published articles about children witnessing domestic violence as well as the mandatory DV reporting policy for medical personnel in Taiwan. Also, I am a supportive member for Taiwan Coalition Against Violence, which is composed of numerous grassroots groups advocating for anti-violence policies.
Looking back, I found that Nancy’s class was not only inspiring, but also influential far beyond her imagination. Judge Gao took her class and later came up with a draft of Taiwanese “Domestic Violence Prevention Act”, which was the blue print of the current law. I took her class 10 years after Gao did and become a law professor who teaches DV law in Taiwan. And there are also other international students in her class who went back to their countries and contribute for DV policies! Nancy certainly plays an important role in helping other countries shape their anti DV laws.
If you would like to know more about DV in Taiwan, please check this website for statistics, law, and news: http://dspc.moi.gov.tw/mp.asp?mp=5
The Ongoing Effect of the Domestic Violence Seminar and Practicum on Taiwan
By Judge Liling Lee
The Domestic Violence Prevention Act (DVPA) was enacted in Taiwan in 1998, and revised in 2009 and 2010. It was originally based on the “Model Code on Domestic and Family Violence” in the US. However, over the last decade it has been shaped by legal opinion via precedents and collaborative systems in practice in Taiwan. For example, protection orders are issued only by family courts. Criminal courts are not allowed to issue these. Batterer’s programs are not required for all convicted batterers, but only on the judge’s sole discretion without consideration of the probation department’s recommendations. Further, DV cases are categorized as non-contentious procedures, and cross-examination is not allowed.
Currently there is still active debate in Taiwan on models and effectiveness of batterer’s programs, methods and necessity of risk evaluation, and the standardization of identification of the dominant aggressor. This makes it difficult to reach consensus in order to make and improve policy. Thus the Judicial Yuan, the highest judicial power in Taiwan, assigned me, as a judge in family court, to study at Berkeley Law School in 2009. I was instructed to focus on the effectiveness of batterer’s programs so that I could help make suggestions to policy making.
I enrolled in the Domestic Violence Law seminar and audited the Domestic Violence Practicum. In the fall semester, the Domestic Violence Law class provided students with the fundamentals of domestic violence issues in all respects. Guest speakers and group discussions inspired the students to think and created a wide variety of perspectives. In the spring semester, students in the Domestic Violence Practicum not only learned how to exercise their legal knowledge in real cases, but the class helped them to understand the importance of managing their inevitable emotional reactions when working directly with victims of DV.
In Taiwan, the use of expert witnesses and the consideration of the effects of battering on victims have not been utilized in domestic violence cases. I was very impressed by watching two cases in court to see how Nancy Lemon testified as an expert witness. Her clear, objective and professional testimony was likely the turning point for both judges’ decision-making. She successfully untangled the misconceptions and biases around the “why doesn’t she just leave” question, and used an understanding of “power and control” theory to help identify the dominant aggressor in each case. These were not only good lessons for the jury and audience, but also for the attorneys and judges.
I was also able to see how Nancy organized parole support for DV victims who had killed their husbands. She also helped women’s organizations work to effectively lobby against the Governor’s proposed cut of all funding for battered women’s shelters. Nancy also stressed the importance of consulting and peer support among advocates, creating a nurturing environment to handle the stresses caused by interaction with victims of violence.
As I submit a report to the Judicial Yuan regarding the research of the effectiveness of batterer’s programs in the US, Nancy’s classes have made it possible for me to introduce the whole system of how a domestic violence case is dealt with in practice in the US. This could serve as a possible blueprint for Taiwan. Under my recommendation, Nancy will be placed on the list of foreign scholars who could be invited to give lectures to judges in Taiwan.
The Domestic Violence Law Seminar and Practicum at Berkeley Law School have influenced Taiwan for many years. As described above, these courses led to the creation of the initial Domestic Violence Law (Judge Gao), then to the teaching of Domestic Violence Law and a Master’s Thesis analyzing how the new law was working in Taiwan (Yun-Hsien Diana Lin), and now to renewed policy making here in Taiwan (Judge Liling Lee).
This connection is continuing to grow deeper and broader, as we understand better how domestic violence prevention in Taiwan must challenge and change the stereotype of “Domestic shame should not made in public.” Indeed this understanding is especially valuable in modern Chinese society.
Fighting to Free Battered Women: Alumni Contribute to the California Habeas Project
“Seven years after graduating from law school, I’m still actively involved in the movement to support incarcerated survivors of domestic violence. The Domestic Violence Practicum played a major formative role in steering me into this line of social justice work. My experiences during the Practicum changed my life, and I hope it will continue to change the lives of countless other students for years to come.”
– Olivia Wang (Berkeley Law 2001)
Many years after taking the Domestic Violence Practicum at Berkeley Law, many alumni continue to work on issues of social justice and domestic violence. The contribution of alumni to the California Habeas Project is just one example of such commitment.
The effort to free battered women from California’s prisons began in 1989 with the founding of Convicted Women Against Abuse in the California Institution for Women, at the time the only women’s prison in the state. Women inside recognized their shared experiences and created a support group for survivors of domestic violence.
In 1992, state revisions to Evidence Code § 1107 went into effect, allowing expert testimony on Battered Women’s Syndrome when relevant in criminal cases. This change to the law ensured that courts would finally have the opportunity to understand the context in which domestic violence survivors commit crimes.
For the members of Convicted Women Against Abuse, the Evidence Code change validated their experiences as victims and highlighted the unfairness of their trials. Recognizing the significance of the revisions, they petitioned the Governor for clemency. Advocates assisted women in bolstering their petitions through legal support. Allies up and down the state established the California Coalition for Battered Women in Prison, now Free Battered Women. Practicum Director Nancy Lemon (Berkeley Law 1980) was one of many advocates actively involved.
Unfortunately, clemency did not prove an effective means of achieving justice for victims of domestic violence behind bars. Of the approximately thirty-four women who asked for clemency, only two received moderate changes to their sentences, and a third was released immediately, although her release was more likely due to her failing health. The vast majority received no response, as their requests sat on the Governor’s desk.
Furthermore, the courts were unsure how to interpret the changes to Evidence Code § 1107. Many victims of domestic violence were still unable to fully present expert testimony in court. Only in 1996 did the California Supreme Court decision in People v. Evelyn Humphrey, 13 Cal. 4th 1073, fully explain the application of changes to Evidence Code § 1107.
In 2001, after a number of attempts to pass legislation to help women convicted before 1992, advocates won a victory with the passage of SB 799. The bill enacted Penal Code § 1473.5, allowing survivors of domestic violence to file a habeas petition if they have been convicted of the murder of their abusive partner, if their trial or plea preceded 1992, and if expert testimony on Battered Women’s Syndrome was not included in their trial. Under the law, the court determines whether it is reasonable to believe that the inclusion of expert testimony relating to domestic violence would have resulted in a different outcome in their case, thus undermining confidence in the judgment. Penal Code § 1473.5 went into effect in 2002.
The passage of SB 799 created a window of opportunity for incarcerated survivors of domestic violence; however, the legislation failed to include a mechanism for implementation. As a result, the work to alert potential beneficiaries and assist them with filing habeas petitions fell to women prisoners and their advocates.
In response to this need, three women helped to found the Habeas Project: practicum alumna Olivia Wang of Legal Services for Prisoners with Children, Nasheen Hasaan of the California Women’s Law Center, and Stacey Turner of the University of Southern California Post-Conviction Justice Project. Currently, the Habeas Project is a coalition of these three organizations, along with Free Battered Women and the Los Angeles Public Defender’s Office.
Another practicum student, Jill Adams (Berkeley Law 2006), wrote about the history of these statutes and the Habeas Project in “Unlocking Liberty: Is California’s Habeas Law the Key to Freeing Unjustly Imprisoned Battered Women?” 19 Berkeley Women’s Law Journal 217 (2004). Practicum alumna Marisa González (Berkeley Law 2005) edited the article, which was published during Adams’s third year at Berkeley Law. Excerpts of the article are also included in Domestic Violence Law by Nancy K. D. Lemon (West, 2d ed., 2005).
Partnering with Convicted Women Against Abuse and other established networks of advocates for domestic violence survivors, the Habeas Project identified about forty women statewide whom it deemed eligible to file for a habeas petition under Penal Code § 1473.5. Focusing on the development of a movement, the Habeas Project recruited legal support for these women. Practicum Director Nancy Lemon worked on some of these cases as an expert witness and/or legal consultant.
A third important bill, SB 1385, took effect in January 2005, addressing many of the limitations of previous legislation. The bill importantly expanded § 1473.5 to apply to survivors convicted of any violent felony, not just first- and second-degree murder. It also expanded the time frame of the law so it would be applicable to any case where the incident that led to the conviction occurred before August 1996. SB 1385 also replaced the term “Battered Women Syndrome” with a more accurate and inclusive “intimate partner battering and its effects.” The bill was sponsored by Free Battered Women and the Habeas Project, and supported by the California Partnership to End Domestic Violence.
In the second phase of the Habeas Project, Coordinators Andrea Bible and Marisa González have worked tirelessly to organize efforts to release wrongly imprisoned survivors of domestic violence. The Habeas Project recruits, trains, and supports pro bono lawyers to represent their clients with § 1473.5 petitions, as well as parole and other post-conviction remedies. Over the past decade and a half, the Habeas Project has helped free twenty women. Fifty-nine survivors are currently working with legal counsel on their petitions.
Although they are just two individuals among many in the effort to seek justice for victims of domestic violence, Olivia Wang and Marisa González have contributed significantly to the Habeas Project. Both began their work on domestic violence as students in the Practicum and have continued this work after graduation. Their long-term commitment is a testament to the important role the Practicum plays in educating students at Berkeley Law about the issues of domestic violence and social justice.
By Jessica Kawamura (Goldman School of Public Policy 2009) and Katherine Kasameyer (Berkeley Law 2007)
First picture: Olivia Wang (left) and Marisa González (right) at 2006 Our Voices Within event, Oakland, Ca.
Second picture: Jill Adams (left) and Marisa González (right), at 2006 Our Voices Within event, Oakland, Ca.