Student Writing

 

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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Boalt Law Clinic Helps Free Rosemary Dyer

Rosemary Dyer was convicted of first-degree murder for the death of her batterer husband and served fifteen years in prison for the killing. Rosemary Dyer’s trial, held in 1989, did not include expert testimony regarding battered women’s syndrome or battering and its effects. As such, Rosemary 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 1992 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 Rosemary Dyer’s Petition for Writ of Habeas Corpus Relief.

Law student Amy Keating and Nancy Lemon, Director of the Domestic Violence Practicum (formerly the Domestic Violence Clinic), filed an amicus brief with the California Appellate Court in In re Rosemary Dyer on behalf of the California Alliance Against Domestic Violence, Free Battered Women, and California Women’s Law Center in support of Rosemary 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. The California Appellate Court remanded the case to the trial court for an evidentiary hearing.

*Amicus Curiae Brief for Dyer Case
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Rule of Forfeiture Should Allow 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 only permit admission of the victims statement where the defendant killed her specifically to prevent her from testifying. 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 batters 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 (so long as 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.  

The Supreme Court’s decision is available at 128 S.Ct. 2678 (2008). A description of the decision will be added to this site soon.

*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 Curie Brief submitted by the Battered Women’s Justice Project to the U.S. Supreme Court
* The Washington Post by Robert Barnes: Justices Scrutinize Killer’s Right to Cross-Examine
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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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Deborah Peagler Wins 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. Peagler has 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 and 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 at the Los Angeles Superior Court within 60 days, where evidence of domestic violence and expert testimony will be presented.

*Amicus Curiae Brief for Peagler Case
*Deborah Peagler Advocacy Site
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