Student Writing

Practicum Student and Director File Amicus Brief in Homicide Case Where Case-Specific Expert Testimony on Battering Was Excluded

Nancy Lemon and Noam Cohen co-authored an amicus brief in support of Barbara Sheehan’s appeal in the New York Appellate Division, Second Judicial Department. Barbara Sheehan is a battered woman who killed her husband in self-defense after suffering years of abuse. Although Ms. Sheehan was acquitted of murder and one weapons possession charge, she was convicted of a second weapons possession charge and sentenced to five years in prison. During her trial, Ms. Sheehan was precluded from presenting relevant case-specific expert testimony on intimate partner abuse and its

The amicus brief asserted that the exclusion of relevant expert testimony violated Ms. Sheehan’s constitutionally protected right to present a complete defense. In the absence of critical exculpatory evidence, the jury did not possess all the information necessary to assess the reasonableness of Ms. Sheehan’s state of mind when she fired the second weapon. Fifteen agencies, non-profits, graduate clinics/programs and law schools submitted
statements of interest in support of the brief.

*Amicus Curiae Brief for Sheehan’s Case
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Practicum Student and Director File Amicus Brief in Federal Drug Case Where Expert Testimony on Battering Was Excluded

Heather Warnken, ’09 and LLM Candidate 2011, co-authored an amicus brief with Practicum Director Nancy Lemon in spring 2011 on behalf of the Ca. Partnership to End Domestic Violence. The National Clearinghouse for the Defense of Battered Women and the National Assoc. of Criminal Defense Lawyers also signed the brief.

The brief argues that the federal district court erred in excluding expert testimony of a psychologist that defendant suffered from the characteristics of “Battered Women’s Syndrome” (BWS) as relevant to the question whether she had the mens rea required for conviction. Defendant Ms. Munguia and four co-conspirators purchased mass quantities of pseudoephedrine from numerous CVS pharmacies and sold it for use in methamphetamine production; she was convicted of conspiracy and drug possession.

She testified that her involvement was at the direction of her abusive boyfriend.  The expert report diagnosed Ms. Munguia with major depression stemming from a gang rape, as well as discussing her involvement in the abusive relationship with her co-defendant, who testified against her.

The court excluded the expert testimony after the prosecution argued that it would be improper, otherwise irrelevant, and unfairly misleading/prejudicial, as well as “presuppos[ing] a duress defense not applicable to the case” by containing references by the expert to “coercion,” which “is a term used synonymously in the Ninth Circuit with the term duress.” The government also argued that the expert’s conclusion that defendant did not have PTSD made any mention of BWS irrelevant, because “BWS is a sub-category of PTSD,” and the court apparently relied on this in its motion to exclude the expert testimony.

The amicus brief argued that the jury often needs highly relevant and contextual information from an expert on domestic violence when abuse is present, and that this narrow and prohibitive view of “BWS” evidence was incorrect.

This case demonstrates how problematic the treatment of testimony on intimate partner battering can be in federal court, and is potentially very significant given the high rates of battered women committing federal drug crimes due to coercion from their abusers.

*Amicus Curiae Brief for Munguia Case
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Clinic Helps Keep Women-Only Shelters From Being Defunded

The California State Court of Appeal affirmed the dismissal of a sex-discrimination lawsuit against ten domestic violence shelters by a man who posed as a victim and was denied a bed because of his gender. In the suit, Eldon Ray Blumhorst v. Haven Hills, Inc., et al., decided February 14, 2005, Eldon Ray Blumhorst, a member of the National Coalition of Free Men, claimed the state-funded shelters violated the anti-discrimination provisions of the California Government Code Section 11135. The statute prohibits any organization that receives state funding from discriminating on the basis of gender. Because the court held that Blumhorst lacked standing – since he was not in a battering relationship and did not need shelter at the time he made the test call – it did not examine whether his sex-discrimination claim had merit. 126 CA 4th 993 (Cal.Ct.App. 2005).

Law student Amy Keating and Lecturer Nancy Lemon, Director of the Domestic Violence Clinic, co-authored and submitted an amicus brief on behalf of California Alliance Against Domestic Violence and Queen’s Bench in support of the ten domestic violence programs in California that were sued. The amicus brief was submitted to provide additional information to the court about the policy reasons behind women-only shelters. The brief urged the court to affirm the trial court’s ruling in favor of Respondents because women-only shelters are “lawful, practical and effective methods of assisting battered women and their children in need and do not violate men’s equal protection rights.”

The amicus brief emphasized that 85 percent to 95 percent of all domestic violence victims are female and that it is vital that battered women be housed separately from men and be allowed to receive specialize treatment to help them overcome their emotional and physical injuries. If the status quo is not maintained, women will be strongly deterred from going to a shelter because they will no longer have the same level of safety, privacy and comfort and may fear for the safety of themselves and their young children in the presence of strange men. While the court’s decision is favorable to domestic violence victims, many domestic violence advocates are concerned that the court’s failure to address Blumhorst’s claim on the merits could leave cash-strapped shelters vulnerable to future litigation.

* Amicus Curiae Brief for Blumhorst Case
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Expert Testimony Admissible, Even in the Absence of Prior Evidence of Abuse

In People v. Brown, the California Supreme Court ruled that expert testimony on intimate partner battering and its effects may be introduced at domestic violence trials, even in the absence of any prior evidence of abuse. Such evidence can be admitted, the court held 6-1, because the judge or jury could use it in evaluating the credibility of the victim’s courtroom testimony. 33 Cal.4th 892 (2004).

In April 2001, Cornell Brown was sentenced to 10 years, eight months in prison after Los Angeles County jurors convicted him of assaulting Kimberly Pipes, whom he had been dating on and off for about 11 years. Pipes told deputies that Brown had threatened her with a steak knife and a barbeque fork after an argument, and that he had punched her in the stomach. At trial, Pipes’ testimony changed, as she downplayed the events. Over defense opposition, Los Angeles County Superior Court Judge Pamela Rogers allowed Jeri Darr, a domestic violence counselor and expert witness, to testify that 80 percent to 85 percent of battered women recant their statements before or at trial. Darr also explained why victims of domestic violence may give conflicting statements: “They may be financially dependent on the defendant. They may be pressured, or even threatened, by the defendant or other family member, or they may still love the defendant and hope that things will get better.”

Law student Erin Smith and Lecturer Nancy Lemon, Director of the Domestic Violence Clinic, co-authored and submitted an amicus brief on behalf of the California Alliance Against Domestic Violence in support of the admissibility of Darr’s expert testimony. The amicus brief argued that expert testimony regarding “battered women’s syndrome” (later changed by the legislature to “intimate partner battering and its effects”) is relevant and admissible under Evidence Code §§ 1107 and 801. Section 1107 deals specifically with the admission of expert testimony on intimate partner battering, while § 801 permits expert testimony that may assist the trier of fact. The amicus brief also underscored how the term “battered women’s syndrome” is no longer appropriate to describe the experience and effects of battering since the term does not adequately reflect the breadth or nature of current scientific knowledge concerning battering and its effects. The California Supreme Court did not address the issue of §1107, instead basing its ruling upholding the admission of the expert testimony on the more generalized § 801.

*Amicus Curiae Brief for Brown Case
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Domestic Violence Practicum Helps Win Evidentiary Hearing for Rosemary Dyer

Rosemary Dyer was convicted of first-degree murder for the death of her batterer husband and has now served over 20 years in prison for the killing. Dyer’s trial, held in 1989, did not include expert testimony regarding battered women’s syndrome or battering and its effects. As such, Dyer is eligible for relief under California Penal Code § 1473.5, which allows incarcerated victims of domestic violence who were convicted of killing their abusers prior to 1996 to submit a Petition for a Writ of Habeas Corpus that challenges their original conviction. Petitioners can seek a new trial, a reduced sentence, or another equitable remedy if expert testimony on battering and its effects was not presented in their criminal case and they were prejudiced by its absence. The California Superior Court denied Dyer’s Petition for Writ of Habeas Corpus Relief.

Law student Amy Keating and lecturer Nancy Lemon, Director of the Domestic Violence Practicum, filed an amicus brief with the California Appellate Court in In re Rosemary Dyer on behalf of the California Alliance Against Domestic Violence (now called Ca. Partnership to End Domestic Violence), Free Battered Women, and California Women’s Law Center in support of Dyer. The brief argued that the denial of Dyer’s petition by the Superior Court was unjust and indicated a lack of understanding of the proper role of expert testimony on intimate battering and its effects pursuant to the California Supreme Court’s decision in People v. Humphrey (1996) 13 Cal. 4th 1073. The brief also explained to the court that had evidence of battering and its effects been included in Dyer’s trial, the trial would almost certainly have resulted in a different outcome.

Through the efforts of advocates, including the DV Practicum, the California Appellate Court remanded the case to the trial court for an evidentiary hearing. However, after rehearing the evidence in light of the information allowed by the new legislation, the trial court again denied Dyer’s habeas corpus petition. Even though she has remained in prison, Rosemary Dyer has continued to live positively and has been featured in the documentary “Sin by Silence” (2008) which highlights the plight of battered women who had been imprisoned for killing their abusers. Her story has also been part of the inspiration for the play “Life Without Parole” (2006) by Warren Doody.

For more information:
More Help for Battered Women: Rosemary Dyer case mentioned (Vol. 1)
Sin by Silence Documentary Website
*Amicus Curiae Brief for Dyer Case
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Rule of Forfeiture And Admission of Prior Statements by Dead Domestic Violence Victims at Trials for Their Own Killings

In People v. Giles, defendant Dwayne Giles admitted that he killed his ex-girlfriend Brenda Avie, but claimed that the killing was committed in self-defense. Over the defendant’s objection, the trial court admitted the victim’s prior statements to a police officer who had been investigating a report of domestic violence involving the defendant and the victim. The prior incident had occurred a few weeks before the killing. Ms. Avie related that, during that incident, defendant had held a knife to her and threatened to kill her. The court ruled that the statements were admissible under California Evidence Code § 1370. The jury convicted defendant of first-degree murder and found that he had personally discharged a firearm causing great bodily injury or death. The appellate court upheld the conviction. The defendant appealed to the California Supreme Court, contending that he was denied his Sixth Amendment right to confront witnesses because the trial court admitted hearsay evidence of the statements by the murder victim to police regarding the prior act of domestic violence.

Boalt law student Timna Sites and lecturer Nancy Lemon of the Domestic Violence Practicum co-authored and submitted an amicus curiae brief to the California Supreme Court, arguing that the Rule of Forfeiture by Wrongdoing should be interpreted to allow prior statements by an unavailable domestic violence victim to be admitted in the prosecution of the alleged murderer of that victim, if it appears to the court that the victim’s unavailability is due to the abuser’s actions. The court affirmed the conviction and concluded that the appellant forfeited his right to confront Ms. Avie through his own wrongdoing and that the evidence was sufficient to support the judgment. 40 Cal. 4th 833 (2007).

The defendant then obtained certiorari from the United States Supreme Court, arguing that the Rule of Forfeiture by Wrongdoing should permit admission of the victim’s statement only where the defendant killed her specifically to prevent her from testifying, based on Crawford v. Washington, 541 U.S. 36 (2004), which greatly restricted the admissibility of out-of-court testimony by unavailable witnesses. As he had before the California Supreme Court, the defendant argued that his Sixth Amendment rights were violated because he was unable to cross-examine the woman he admitted to killing. Nancy Lemon and Boalt law student Katherine Kasameyer teamed up with a national coalition of domestic violence experts to research and submit an amicus curiae brief to the United States Supreme Court. Cooperating organizations included the Domestic Violence Legal Empowerment and Appeals Project (DVLEAP), the California Partnership to End Domestic Violence (CPEDV), and Legal Momentum. Attorneys from Bingham McCutchen LLP served as pro bono counsel.

The brief surveyed cases and treatises written during the era in which the Constitution was framed. These demonstrate that the admission of a victim’s statements at the trial for her own death is consistent with historic U.S. practice and with the bedrock equity principle that a person should not profit by his own wrongdoing. The brief also reviewed current cases and practice to show how the failure to admit victim statements at trial would create a windfall and an incentive for batterers who kill, rather than simply beat, victims.

Nancy Lemon and Katherine Kasameyer also contributed to an amicus brief submitted by the Battered Women’s Justice Project and other domestic violence organizations with the assistance of pro bono counsel from Howrey LLP. This brief argued that in the context of a battering relationship, excluding a dead victim’s prior statements at the trial for her own death (in cases where she was not killed specifically to keep her from testifying) would deprive the fact finder of key evidence, leading to inequitable and unfair results. The brief reviewed recent cases in which courts admitted the statements of deceased domestic violence victims regarding the patterns of abuse and control they had suffered. These statements cast serious doubt on defendants’ claims that they killed in self-defense or without premeditation.  

In 2008, the Supreme Court issued its decision, overturning the California state court and holding that a defendant may invoke his confrontation right in regard to a witness whom he had killed for reasons other than to prevent that witness’ testimony in court. As Justice Scalia, who delivered the majority opinion of the court, further notes, the decision was based on a full awareness of the seriousness of domestic violence, but despite the severity of the crime, “abridging the constitutional rights of criminal defendants is not in the State’s arsenal”. He did however, note that  “where an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and stop her from reporting abuse to the authorities or cooperating with a criminal prosecution [and therefore] rendering her prior statements admissible under the forfeiture doctrine.”

The Supreme Court’s decision is available at 128 S.Ct. 2678 (2008).
* Amicus Curiae Brief submitted to the California Supreme Court for Giles Case.
* Amicus Curiae Brief submitted by DVLEAP and CPEDV to the U.S. Supreme Court for Giles Case.
* Amicus Curiae Brief submitted by the Battered Women’s Justice Project to the U.S. Supreme Court
* Washington Post article by Robert Barnes: Justices Scrutinize Killer’s Right to Cross-Examine
* Giles v. California – Certiorari to the Supreme Court of California
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Domestic Violence Clinic Authors Amicus Briefs Arguing Right to Hearing in TRO Cases

On September 1, 2006, Maria Guijosa applied for an ex parte restraining order to stop Rogelio Dominguez-Garcia from committing future acts of domestic abuse against her. Dominguez and Guijosa were “former cohabitants” who lived together for over two years and have two daughters together. Dominguez has a history of committing acts of physical, sexual, and verbal violence against Guijosa since 2002. Unfortunately, Guijosa was denied her petition for a protective order against her batterer, and a hearing on her petition was also denied. Guijosa appealed the order denying her application for a protective order pursuant to the Domestic Violence Prevention Act (DVPA). 

Law student Kelly “Bone” Burke and Lecturer Nancy Lemon, Director of the Domestic Violence Practicum, co-authored and submitted an amicus brief on behalf of the California Partnership to End Domestic Violence and ten other domestic violence agencies in California in support of Guijosa’s appeal. The brief emphasized the effectiveness of restraining orders in lowering the incidence of domestic violence, citing studies that have shown that three-quarters of those people who obtain protective orders against their domestic abusers report no further episodes of domestic violence. In addition, the brief highlighted that the language of the DVPA requires only that victims make a prima facie showing of “reasonable proof of a past act or acts of abuse” on the part of the person to be restrained, and Guijosa has definitely met this burden of proof.

In an unpublished opinion, the California Appellate Court ruled in favor of Guijosa on June 28, 2007, reversing the lower court’s decision, and held that the summary denial of the protective order by the superior court was an abuse of discretion.

*Amicus Curiae Brief for Guijosa Case
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Practicum Helps Win Victory: Courts May Not Summarily Deny TRO’s Without Stating Reasons

In March 2007, Professor Nancy Lemon and the Domestic Violence Practicum at Boalt Hall filed an amicus brief in the California Court of Appeal on behalf of the California Partnership to End Domestic Violence (CPEDV) and ten other organizations that work to end domestic violence. Kelly “Bone” Burke (Boalt ’07) co-authored the amicus brief with Lemon. The Court of Appeal ruled in favor of Ms. Nakamura, the domestic violence victim, in October 156 Cal.App.4th 327 (Cal.App. 2007).

The case involved a domestic violence victim who had requested a protective order from her husband, who had physically and sexually abused her during the year leading up to her request.  As the Court of Appeal noted, in her petition for a protective order Nakamura had “provided numerous specific and admissible facts . . . showing past acts and more recent and recurring acts showing that [her husband] intentionally or recklessly caused or attempted to cause her bodily injury and placed her in reasonable apprehension of imminent serious bodily injury” in ways that met the requirements of the Domestic Violence Prevention Act (DVPA). 

However, despite the specific and admissible facts detailed in her petition, the superior court denied Nakamura’s request for a protective order with a rubber stamp that stated, “THE FACTS SET FORTH DO NOT PROVIDE A LEGAL BASIS TO ISSUE THE ORDER REQUESTED AND THE APPLICATION IS THEREFORE DENIED.”  Furthermore, the superior court refused to provide her with a hearing on the matter.  Bay Area Legal Aid appealed both the denial of a protective order and the superior court’s refusal to grant Nakamura a hearing on her request, which served to dismiss her protective order action entirely. Lemon participated in the oral argument at the Court of Appeal.

The Court of Appeal held that the superior court’s actions constituted a reversible abuse of discretion.  The superior court’s “determination that the facts alleged in [Nakamura’s] application ‘do not provide a legal basis to issue the order requested,’ assumed the truth of the factual allegations and found them, as a matter of law, not sufficient” under the DVPA.  This was an abuse of discretion, said the Court of Appeal, because the factual allegations put forth in the petition were facially adequate “within the meaning of the DVPA” and thus “operated to divest the court of discretion to summarily deny her application.”  The superior court’s denial of a protective order was reversed and the superior court was ordered to act in a manner consistent with the Court of Appeal’s opinion.

Nancy Lemon, the Domestic Violence Practicum, Bay Area Legal Aid, and CPEDV are very pleased with the outcome of the case and are excited about the published opinion.  The San Francisco Chronicle reported on the opinion and noted the consequence of this decision.  As Lemon stated in the article, this opinion is significant because “there is a pattern statewide of judges summarily denying restraining orders without a hearing.”  It is a victory that the Court of Appeal published this decision, because it can be cited and will hopefully provide guidance to other judges dealing with DVPA petitions for protective orders. 

*Amicus Curiae Brief for Nakamura Case
*San Francisco Chronicle Article on Nakamura Case
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Practicum Helps Deborah Peagler Win Victory in Appellate Court

Deborah Peagler pled guilty to first-degree murder in 1983 for killing her boyfriend Oliver Wilson, who had severely physically and sexually abused Peagler for nearly the entire length of their relationship. Peagler had no access to expert testimony regarding intimate partner battering and its effects, because at the time such testimony would probably not have been permitted in a trial had she chosen to proceed to trial. At that time, Peagler had served over twenty-three years in prison.

Seeking to have her case reconsidered, Peagler petitioned the Superior Court under California Penal Code § 1473.5, which permits testimony on intimate partner battering and its effects for incarcerated victims of domestic violence who were convicted of killing their abusers prior to 1992. The Superior Court denied Peagler’s Petition for a Writ of Habeas Corpus, finding that there was not a reasonable probability that the outcome would have been different under the new laws. Peagler appealed the Superior Court’s decision.

Law student Kelly Bone Burke and lecturer Nancy Lemon, Director of Boalt’s Domestic Violence Practicum, co-authored and submitted an amicus brief on behalf of the California Partnership to End Domestic Violence in support of Peagler’s petition for habeas relief. The brief contended that there is at least a reasonable probability that the District Attorney would have offered to accept a plea to a lesser crime such as voluntary manslaughter, or that a jury would have reached a different outcome if Peagler had been able to present expert testimony on battering and its effects.

In a pivotal victory for the domestic violence community, the California Court of Appeal ruled in favor of Peagler on November 2, 2007. Peagler was granted an evidentiary hearing scheduled to take place in the summer of 2009 where evidence of domestic violence and expert testimony would be presented. However, in the face of the discovery of Peagler’s Stage IV terminal lung cancer and other difficulties regarding the DA’s position regarding the case, her lawyers turned to a different approach to secure her release and petitioned for parole by appealing to the California Department of Corrections Board of Parole Hearings and Governor Schwarzenegger. After a widespread campaign to raise attention to her case, Deborah was finally released on parole in August 2009. After her release, she continued her life-long commitment to speaking out against domestic violence. Debbie Peagler died peacefully in the spring of 2010 having spent the remaining months of her life amongst friends and family.
Amicus Curiae Brief for Peagler Case
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