Not Guilty by Reason of Victimization Susan Rutberg Golden Gate University School of Law, [email protected]

Not Guilty by Reason of Victimization Susan Rutberg Golden Gate University School of Law, Srutberg@Ggu.Edu

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12-1993 Not Guilty by Reason of Victimization Susan Rutberg Golden Gate University School of Law, [email protected]

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Recommended Citation 20 CACJ Forum 36 (Dec. 1993)

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If you put a dog in a cage, and keep survivors: survivors of the kind of Felicia Morgan's case, describes cons. poking him with a stick, sooner or later trauma that is considered outside the tant exposure to a cui ture of violence as he's going to bite you. range of ordinary human experience. akin to growing up in chronic combat.s -George JacKson, author of When use of the term first became Whatever the type of trauma, PTSD Soledad Brothers: The Prison popular in the late 1970s, it was most symptoms may include increased ago Letters of George Jackson commonly associated with Vietnam gression, abnormally quick responses of veterans and their combat-induced be rage, and episodes in which the sufferer On October 26, 1991, 17 -year-old havioral disorders.2 The APA and the acts without control while reliving a Felicia Morgan and two teenage friends psychiatric community have now recog traumatic experience.6 went on what the press termed a nized that PTSD also describes the be Felicia Morgan was beaten and threa. "crimes of fashion" spree in downtown havior of people who have survived a tened at gun and knife point by her Milwaukee. With guns in hand they variety of other traumatic experiences. mother throughout her childhood. The walked up to people on the street and and that there are links between trau landlord raped her when she was 11. took clothes, jewelry, and shoes. When matic victimization and subsequent Later she was molested by her mother's 17-year-old Brenda Adams tried to run anti-social behavior.3 boyfriend. Felicia often witnessed gun. away rather than give up the new patch Events that may result in PTSD in fights among family members, includ· work leather coat she'd gotten for her children include: exposure to violence ing seeing her mother shoot at both her birthday, Felicia Morgan shot her dead. and/or sexual abuse (intra-family and/or father and the boyfriend. Two of her un· Felicia's lawyer, Milwaukee criminal in the child's immediate community). cles were murdered two days apart. defense attorney Robin Shellow, put on exposure to war. and the occurrence of Felicia was present at the violent deaths l expert testimony to support a Post Trau natural disasters (fires. floods. Three of several other relatives and friends. matic Stress Disorder (PTSD) defense. Mile Island. etc.).' Sometimes PTSD is When a psychologist asked Felicia how Shellow tried to convince the jury that triggered by one horrific event; some she had managed to stay alive, she said: ( Felicia suffered from an urban combat times by chronic abuse. Not every ex "My ears be open, even when I'm induced traumatic stress reaction, posure to a traumatic event results in asleep."? Shellow described her client's resulting from her life-long exposure to PTSD. and not every person diagnosed mental condition as a borderline per· intrafamily and community violence. as suffering from PTSD exhibits all the sonality disorder resulting from the Post Traumatic Stress Disorder (PTSD}I same symptoms. cumulative effects of the violence in her is a phenomenon named by psychia Dr. James Garbarino. a Chicago spe life. According to Shellow, her client trists to describe the physical and emo cialist on the effects of violence on chil wasn't crazy "because she lived in a bad tional behavior patterns of trauma dren and one of the expert witnesses in neighborhood, because she was poor, or because she was black ... , she became crazy in order to survive."B The jury found Felicia Morgan guilty

2 See People v. Lucero (1988) 44 Cal.3d 1006 I PTSD has been formall~' recognized by the (re\'ersible error to exclude penalty phase American Psychiatric Association and listed defense expert testimon~' re possibility that in its Diagnostic and Statistical Manual of Lucero suffered from PTSD as result of Mental Disorders (DSM) since 1980. The service in Vietnam war). and People \'. 5 Dr. Garbarino contends that tens of thou' DSM (the Bible of psychiatric diagnoses) is Bruhn (1989) 210 Cal.App.3d 1195 (Lucero sands of inner-city children probably suffer currently being re\'ised for a fourth edition. had served combat duty in Vietnam. Court not only from PTSD, but also frolll a loss of DSM-IV. As part of the process of revising ordered case remanded for resentencing faith i~ adults and in the future. Woo. 1. it. a sub-workgroup of APA members has re directing trial court to consider federal Urball Trauma Mitigates Gllilt. Defei/ders cently published a book. Post Trallllllltic commitment for Lucero-per PC 1170.9- Sa\', The Wall Street 10urnal. 4/27/93. Stress· Disorder: DSM-IV Alld 8ey()/ul. and exercise discretion.) • TH'E AMERICAN PSYCHIATRIC ASSOCIATION DIAG American Psychiatric Press. Inc.; (Davidson J PTSD: DSM-IV AND BEYOND. supra; HERMAN. NOSTIC AND STATISTICAL MANUAL OF MENTAl. .lOd Foa, ed .. 1993). While this publication 1., TRAUMA AND RECOVERY, Basil' Books DISORDERS, 3rd Ed., Revised (DSM·!II·R) does not present the official position of the (1992); Kaser-Boyd, N., Post-Trallllllltic 1987. DSM-IV Task Force. which is responsible Stress Disorders ill Childrell al/{I Adults: The 7 Woo, supra. The Wall Street Journal. fur revising the DSM. it gi\'es a good indica I,egal Rele\'(/Il('e (WESTERN STATES LAW 4/27/93. tion of the more inclusi\'e definition of REVIEW, publication forthcoming). 8 Flaherty, The Ghel/o MildI' Me Do II. I~ PTSD that will be included in DSM-IV. 4 PTSD: DSM-IV AND BEYOND, supra at xi. THESE TIMES at 19 (AprilS, 1993).

36 ~ E N T A L s T A T E o E F E N s E s l, of first degree murder. In the second hood), and David Mason (beaten and hu phase of the trial, the same jury rejected miliated as a child, violent and suicidal I her insanity defense-but in the end, the as an adult), are both examples of judge, who had heard months of tes- people who grew up to do unto others timony about the horrors that made up some version of what was done to them Felicia's life, sentenced her to the abso as children. lute minimum amount of prison time. Recent studies of death row prisoners She will be parole eligible in 13 years.9 indicate that, in addition to (or as a result of) shared histories of child Over representation of PTSD abuse, many of the prisoners also suffer Sufferers Among Criminal from brain damage. The root cause of Defendants the neurological damage may be Fetal PTSD is now understood to be "a Alcohol Syndrome, or severe head in problem of substantial magnitude in the jury, or both, but the results are similar: general population." According to a scars in the parts of the brain that affect 1991 study, 4 out of to Americans have judgment and the ability to control rage experienced major trauma, and the dis- and other emotions. Although certainly Susan Rutberg, formerly a deputy public I order itself may be present in 9% of the not every victim becomes a perpetrator, defender in San Francisco, is now an Associ population. lo a brain-damaged child raised in an at ate Professor at Golden Gate University School of Law. She is a board member of I Criminal defense lawyers have long mosphere of chronic violence is a likely Women Defenders. I known intuitively that PTSD survivors candidate for socially unacceptable be like Felicia Morgan are enormously havior. 13 I overrepresented among our clients. For As criminal defense lawyers we are I many of our clients, born and raised privy to our clients' psycho-social histo I amid incredible violence, this prolonged ries in a way that others in the system exposure (as victim and witness) may are not. We have a responsibility to I result in the form of PTSD that Felicia educate judges and juries about the rele defense in reserve until a client's men Morgan's lawyer described as "Urban vance of traumatic events to the forma tal state has degenerated to the point Psychosis."11 tion of specific in ten t, and to the where they face the most serious crime. The publicity surrounding Califor- significance of PTSD as a factor in miti j 14 This article is written to help defense nia's most recent executions has gation at sentencing. We do much lawyers focus on this most critical brought similar horrifying life stories of more for our clients if we can bring this defense early enough in our clients' lives death row inmates to the front page of information to light early on, as part of to offer them real help. lour collective consciousness, and has our representation of first-time offen ", helped make the link between early vic ders. While the PTSD defense has been j timization and later perpetrat;on pain employed almost exclusively in homi I fully clear. The two men executed by the cide cases, we must not hold this : State within the last two years, Robert cused of killing their parents. Defense law j Alton Harris (the product of both Fetal yer Leslie Abramson tried to introduce evi IMoohol Syncleom'" and a viol,nt ,hild- dence of the brothers' molestation and abuse to support their claim of self symptoms and subtle physical characteris defense. Initially, Superior Court Judge tics sometimes difficult to detect, including Stanley Weisberg refused to let the jury difficulty in telling right from wrong and hear it, saying: "I think this whole issue is

I understanding the consequences of be being blown out of proportion ... that ! 'Telephone conversation with Robin havior, and poor judgment. somehow there's a linkage between the · Shellow. According to the National Council on Al molestation, if there was one, and the kill I 10 P!~D: DSM-IV AND BEYOND, supra at xi, lx, coholism, an estimated 5,000 children-one ings. It doesn't prove anything." Abram 1 CIting Breslau ct al. 1991). in every 750-are born each year with FAS. son's response is indicative of the gap in 11 Dr. Judith Herman has referred to this JJ A study of 15 death row inmates, conducted the perspectives, the parallel universes in more complex form of PTSD as Disorder of by Dorothy Otnow Lewis, a professor of habited by bench and bar on this issue: "It Extreme Stress Not Otherwise Specified Psychiatry at New York University School does not surprise me to hear the court say (DESNOS), which is currently under con of Medicine, revealed that all 15 had evi that. It horrifies me, but it doesn't surprise sideration for inclusion in DSM-IV. She dence of severe head injury and 12 showed me .... We can't get him (Judge Weisberg) SUggests that prolonged and repeated ex evidence of neurological problems, ranging, to broaden his view of what the evidence is Posure to trauma causes pathological from blackouts to amnesia, as well. (Lori in this case, and I can't understand it." (Par changes in behavior and personality. PTSD: Olszewski, New Theory About What Makes ents' Shooting, Family Secrets: Court I DSM-IV AND BEYOND, supra, Chapter 12. a Murderer: Child Abuse Plus Brain Inju Weighs Whether Sex Abuse Bears on Sons' ; 12 Fetal Alcohol Syndrome (FAS) is defined as ries, San Francisco Chronicle, 8/12/93 A-I, GlIilt, San Francisco Examiner 8/22/93 B-6, I a chemical imbalance in the fetus caused A-12.) col.!.) . by excessive drinking by the mother, and 14 In the case or Lyle and Erik Menendez, on Eventually the defense succeeded in per affecting the central nervous system of the trial in Los Angeles at the time this article suading the judge to admit evidence of the developing fetus, manifest in a cluster of is being written, the two brothers are ac- defendants' childhood abuse.

37 t-' ·Vol. 20, No.4 N T M E N T A l S T A T E D E F E S 1 PI I)

Effects of PTSD plaining how events surrounding the issue which negates a mental element of til 19 The impact on most organisms that charged crime triggered reliving the the charge. pr live with long-term stress is biological original trauma. Battered women have paved the Way ba change and eventual breakdown.ls In for the introduction of evidence of Past th humans, acute or chronic stress pro mistreatment as a way to shed light on fe· duces both a biological response and an When we want mental state the issue of intent in the charged crillle be emotional response. Psychiatrists be evidence admitted, Responding to articulate advocates fa; lei lieve that if the trauma (or stressor) is what do we argue? battered women, the Legislature relaxed cr significant enough to create the threat 1. Relevance: Raising a Reasonable the rules for admission of expert tes re of death, or the perception that the vic Doubt on Mental State timony on Battered Women's Syndrollle fo tim might die, the person's sense of Due process requires that every crimi (BWS).20 New Evidence Code section Sf safety in the world may be unalterably nal defendant be afforded the opportu 1107, enacted in 1991, makes expert tes th affected. Long after the traumatic event nity to have evidence of his/her state of timony on BWS generally admissible.21 pi is over, PTSD survivors live with an en mind (also known as relevant mental Section (a) provides that "expert tes- re hanced sense of threat as well as im condition) placed before the jury. If this pf paired impulse control, and difficulty in kind of evidence is excluded, the right to sl; controlling strong emotions. The mind present an effective defense is im "diminished capacity." Hence, since 1981 te and body's struggle to recover from periled. (Chambers v. Mississippi, 410 defense lawyers trying to bring in evidenc~ l cc trauma often produces a constriction of U.S. 284 (1973); Washington v. Texas, about their clients' mental state have had W the personality, a dampening down of 388 U_S. 14 (1967).) The California Legis to show that it is relevant to whether or not I emotions, and an attempt to forget or lature purported to abolish the "dimin their clients actually formed the requisite se repress the traumatic memories. A ished capacity" defense in 1981, yet intent. m resurgence of all the original feelings evidence of mental impairment and/or 19 See, Tom Lundy, Adventures in the Wonder- ..! m intoxication may still be offered on the land of Specific Intent, 20 CACJ FORUM 2 th can and often does come with a stimu (1993). lus, most likely in the form of a similar issue of whether the defendant actually ·.t UI 20 "Battered Woman Syndrome" (BWS) is a Ii formed a required specific intent, or event that triggers the repressed term used to describe the behavioral pat memories and feelings produced by the mental state. (Penal Code sections 22, terns of women who have been the victims Sl original event. 16 28.)'8 of violence perpetrated by their partners, dl General conditions that seem to hold In fact, the Legislature may not deny and who have remained in the relationship true for people reacting to acute or a defendant the opportunity to disprove after repeated violent incidents. Offered to chronic traumatic stress include: pro a requisite mental state. People v. Bobo explain how a woman's particular ex tracted depression, avoidance of (1990) 229 Cal.App.3d 1417, 1442. A periences affect her perceptions of danger l ~ and her honest belief in its imminence, thoughts or feelings associated with the defendant retains the 14th Amendment I) c due process right to present evidence BWS evidence has become increasingly ac trauma, inability to recall important cepted in the courts. The dynamic is gener aspects of .the trauma, feelings of on, and have the jury determine, any fe ally described as a cycle of violence S( detachment or estrangement, sleep involving three phases: tension building, an rt problems, restlessness, withdrawal, acute battering incident, and a tranquil CI hyperstartle, hypervigilance, confusion, 18 In 1978, former San Francisco Supervisor period of (often) loving contrition. Some paranoia, overwhelming fear, a re Dan White shot and killed then-Mayor victims of BWS exhibit a condition known stricted range of affect, and a sense of a George Moscone and Supervisor Harvey as "learned helplessness" which causes dis ( ~~ foreshortened futureP Milk. The killings occurred in San Fran torted behavior-passivity and compliance r i, Helping our clients unlock these cisco City Hall during business hours, and rather than resistance or attempts to es cape. Overwhelming fear that the batterer memories can provide support for the defendant, a former San Francisco fire man and friend of many San Francisco will kill them (or their children) if they at defenses to crimes or explanations in police officers, surrendered. The sym tempt to leave is another factor in the be· ! mitigation of criminal behavior by ex- pathetic police detectives conducting havior of women who suffer from BWS. White's post-surrender interrogation asked For further information, see: WALKER, LE- l him to "tell us about the pressures you've NORE, THE BATTERED WOMAN (1979); THE BAT been under lately .... " White's lawyers TERED WOMAN SYNDROME (1984); TERRIFYING offered psychiatric testimony focusing on LOVE (1989); Maguigan, Battered Women , 15 SELYE, H., THE PHYSIOLOGY AND PATHOLOGY White's state of mind. The expert testified and Self-Defense: Myths and Misconcep· OF EXPOSURE TO STRESS (1950), Montreal: about the effect of a super-junk food diet tions in Current Reform Proposals, 140 U. ACTA, Inc. on an already overstressed mind. This PA. L. REV. 379 (1991); Murphy, Assisting Ihe 16 Kaser-Boyd, N., Balash, S., Battered "Twinkie" defense was ridiculed in the Jury in Understanding Victimization: Ex- Woman Syndrome and Other Subtypes of press, but the jury found it persuasive. pert Psychological Testimony on Bat/ered Post-Traumatic Stress Disorder: Strengths White's later acquittal of murder (he was Woman Syndrome and Rape Trauma syn and Liabilities in the Courtroom 19 CACJ convicted of voluntary manslaughter in drome, 25 COLUM. J.L. & Soc. PROBS. 277 FORUM 4 (1992). stead), resulted in mass demonstrations (1992); Taylor, Provoked Reason in Men and 17 PTSD: DSM-IV AND BEYOND, supra, at 75. and public outcry. The Legislature re Women: Heat of Passion Manslallghlerand Felicia Morgan's survival mechanism: "My sponded by trying to close the door on men Imperfect Self-Defense, 33 UCLA L.REV. l ears be wide open, even when I'm asleep," tal defenses falling somewhere short of 1679 (1986). supra, is an example of the hypervigilance insanity. The new Penal Code sections 21 CACJ was instrumental in ensuring pas common in PTSD survivors. substituted "diminished actuality" for sage of the legislation amending Evidence ( 38 CACJIFORU~ i" E N T A L S T A T E o E F E N s E s ,\"Y I,

)f I tirnony is admissible by either the after the incident was inconsistent with Evidence Code, the court still found it I prosecution or the defense, regarding that defense_ "Had evidence of the BWS would have been reasonable to expect a , battered women's syndrome, including been introduced, he (defense counsel) ef criminal defense lawyer to recognize the Iy5t I the physical, emotional, or mental ef- fectively could have countered the bat applicability of BWS evidence to a 'n i fects upon the beliefs, perceptions, or tered woman myths on which the duress defense. Romero, supra at 1162, e. behavior of victims of domestic vio prosecutor built his case .... BWS evi fn.11. lr lienee, except when offered against a dence would have bolstered appellant's Romero makes clear that despite limi :d criminal defendant to prove the occur- credibility, and lent credence to her self tations on the scope of allowable mental s. renee of the act or acts of abuse which defense claim." (Day, supra at 420). defenses, counsel still has the obligation le I form the basis of the criminal charge." An earlier case, predating the changes to undertake "careful factual and legal III , section (b) of the new statute describes to Evidence Code section 1107, opened investigations and inquiries with a view s- 1 the minimal foundation required: the the door for the introduction of expert to developing matters of defense in 21 proponent must simply establish testimony re BWS. People v. Aris (1989) order that he (sic) may make informed s- relevancy and properly qualify the ex 215 Cal.App.3d 1178, 1196 held that such decisions on his (sic) client's behalf ... pert witness. The section goes on to expert testimony was admissible, (citation omitted). If as a result of his

'1 state: "Expert opinion testimony on bat although for limited purposes, when (sic) failure to undertake a careful in tered women's syndrome shall not be offered by the defendant to support a quiry and investigation a crucial de 1, 1 considered a new scientific technique claim that she assaulted or killed her fense is withdrawn from the case, the ce whose reliability is unproven." abusive husband in self-defense. The ld defendant has not had the assistance of ot I Two recent battered women cases court found that the proffered BWS evi counsel to which she is entitled." (People te 1seem to indicate a judicial willingness to dence was not admissible to prove the v. Romero, supra, 11 Cal.App.4th 1150, make the link between past mistreat objective reasonableness of D's claimed 1162, quoting People v. Shells (1971) 4 ?y- I ment and mental state that the judge in self-defense. However, it also held that Ca1.3d 626, 630 and People v. Ibarra ,2 11 the Menendez case found so difficult to it was error (albeit harmless) to exclude (1963) 60 Cal.2d 460, 464.) understand. In both, failure to inves- expert testimony regarding BWS, to the .a tigate the possibility that a client extent defendant's particular ex 2. A Variety of Theories it· suffered from battered woman syn periences affected her perceptions of When you are seeking admission of ns ! i drome, and thus to offer the evidence at danger and its imminence.22 expert testimony on some syndrome or jp'S, 'I trial, resulted in reversaL People v. Day People v. Romero, supra, which was mental state other than battered woman to (1992) 2 CaLApp.4th 405; and People v. not a domestic violence case per se, is syndrome, you will still have to con 'x' Romero (1992) 15 Cal.AppAth 1519, particularly noteworthy for defense vince the judge of the nexus between ' rev. granted -- Cal.4th --, 17 lawyers needing arguments to support your client's story and the lack of the :e, I. Cal.Rptr.2d 120. the notion that a client's history of requisite mental state. Traditionally, ex le- 1 In People v. Day, supra the Court abuse is relevant to alleged criminal be pert testimony is deemed relevant if it ~r' l found reversible error in defense coun- havior. Debra and Terrance Romero will be of assistance to the jury in decid ce sel's failure to offer evidence of BWS to were jointly charged with robbery and ing the facts of the case. "If scientific, an 1 lil 'j'rebut the prosecutor's impeaching attempted robbery, and Debra's defense technical, or other specialized knowl ne cross-examination of the defendant. Day was duress. Although her trial lawyer edge will assist the trier of fact to under \In 1claimed self-defense: during cross- recognized the possibility that Debra stand the evidence or to determine a is- ' examination, the prosecutor raised the Romero suffered from BWS and made fact in issue, a witness qualified as an .ce Iinference that her conduct before and some inquiries about finding an expert expert by knowledge, skill, experience, ~s· witness to conduct an evaluation, that is training, or education, may testify 'er I as far as he went. The court found that thereto in the form of an opinion or at- j counsel's failure to investigate was otherwise" (Federal Rules of Evidence, unreasonable. Even though Debra Rule 702) If the witness is qualified, and ,. 'C;;de section 1107. Former CAC) President j Romero's case went to trial before the the subject is "sufficiently beyond a Leslie Abramson helped draft it, and legis· Legislature added section 1107 to the common experience" that hearing the H' .... lative advocate Melissa Nappan lobbied for NG , its passage. witness's testimony would assist the en 1 A bill co-authored by State Senator trier of fact in understanding the evi W I Killea and Assembly Member Moore, dence or in determining a fact in issue, U. J proposing a change in the definition of then the testimony should be admitted. he I voluntary manslaughter in domestic vio, (Evidence Code sections 720, 801). The ~x- Ilence cases, came within one vote of pas- 22 Brenda Aris was granted clemency by California Supreme Court has "inter 'ed .' sage in the Legislature this past session. Governor Wilson on May 28, 1993. Prof. preted this language to require exclu ,rI- Senate Bill 1144 would have provided that Kathleen (Cookie) Ridolfi, Santa Clara sion of expert opinion 'only when it :~ 'Il the jury or court is entitled to infer an University Law School and the California would add nothing at all to the jury's honest but unreasonable belief in the Coalition for Battered Women in Prison common fund of information .... " (Peo ;: l necessity to resort to selr·defense if the represented Ms. Aris. See also, Ridolfi's defendant has both been subjected to a his· response to Governor Wilson's limited plev. Stoll(1989)49Ca1.3d 1136, 1154, quoting People v. McDonald (1984) 37 alc~: .1' tory or pattern of repeated abuse or domes· grants of clemency: Governor Improperly ~ ~ic violence by the decedent, and was in an Restricted Use of Pardoning Power, CALIFOR Ca1.3d 351,367.) Intimate relationship with the decedent. NIA STATE BAR BULLETIN, 7/28/93, at I. Outside the BWS context, in which

1M. '. 4:;..' · Vol. 20. No.4 39 I .cr ,', T A L s T A E E F N s 81 I') the Legislature has specifically sanc but the authority upon which it relied terns that characterize a PTSD surviVor tioned admission of expert testimony, remains good law supporting a defense will make it easier for you to recognize ( defense counsel should consider a vari of unconsciousness where the psycho such clients and respond appropriately. ety of theories for connecting the expert logical forces acting on defendant are so Some suggestions borrowed from ther_ I testimony to the mental state in issue. severe as to produce action without apists to encourage reluctant patients to First, counsel might argue by analogy awareness. See e.g., People v. Wilson talk about their histories are: ( to Evidence Code section 1107 that if the (1967) 66 Cal.2d 749; People v. Moore 1. To make it easier to build trust defendant has been a victim of repeated (1970) 5 Cal.App.3d 486. See CAUIC No. identify one person in the defense tea~ abuse, PTSD would be admissible to 4.30.)24 to play the mental health role-to be the show, in the vernacular of section 1107, Expert testimony negating the infer client's confidante regarding psycho its "effects upon the beliefs, perceptions ence of a predisposition to commit the social issues. If you have the resources or behavior of victims" of such violence. charged crimes may be admissible as use an experienced psychologist. If not' The Legislature has acknowledged the character evidence. Refusal to permit consult with one, read what you can' relevance of this expert testimony to "Anti-Syndrome" evidence in a prosecu and pay attention to the client's re: one class of defendant; there is no prin tion for lewd and lascivious acts against sponses. cipled reason to restrict the evidence to a child may result in reversal. In People 2. Ask open-ended questions. Listen that group of defendants.23 v. Stoll, supra, child molestation convic to the client's responses and watch how ) Second, defense counsel should con tions were reversed due to the trial s(he) interacts with you. Be careful not I. sider employing established defenses court's prejudicial exclusion of defen to talk in psychobabble or lawyer-speak. such as unconsciousness in the PTSD dant's proffered evidence of psycholo Don't label the phenomenon you think I' context. See e.g., People v. Wu (1991) 235 gist's opinion that he showed no signs of might be present (i.e. "Are you a bat. , Cal.App.3d 614, a case in which a "deviance" or "abnormality." The court tered woman? Was your father an alco mother was charged with the murder of held the evidence was relevant to the holic?") Try instead to move people to r her child. Trial counsel introduced tes defendant's claims that the charged acts tell their stories in their own ways: "Can [ timony showing that at the time of the did not occur, the psychologist's qualifi you think of a time when your father killing the mother's extreme emotional cations were well established, and the was angry? Tell me about that time." I and psychological distress brought on a testimony would have been proper char Ask for more and more detail, as con· fugue state. The trial court refused a re acter evidence. crete as possible, until you think that .< quested instruction on the defense of memory is exhausted. Come back to it [' " unconsciousness. The Court of Appeal An approach to interviewing 25 later. " reversed, holding that there was suffi Part of the problem in figuring out We know this technique already: we cient evidence to support the instruc how to get relevant mental state evi learned it the hard way during our first l'. tion. Predictably, Wu was depublished; dence admitted is overcoming clients' few weeks of practice. "Okay, now tell resistance to talking about traumatic me this," you asked in your most law· events. Clients suffering from some yerly way, "Did you give a statement to form of PTSD are unable to tell you so the police?" "No way," says the client, directly. Their symptoms (denial, you think I'm stupid?" But when you 23 Defendants other than battered women may be able to argue that Evidence Code depression, substance abuse, etc.) are get discovery from the DA, there's a section 1107 permits them to introduce ex almost all impediments to easy dis detailed, 1O-page, tape-recorded confes· pert testimony like BWS. Section 1107 per closure. What survivors of PTSD cannot sion! That's how we knew to ask it mits testimony regarding the effects of help doing, however, is reveal clues to differently: "Okay, I want to hear every· BWS on "victims of domestic violence." their histories in their interactions with thing you can remember about getting The statute defines "domestic violence" by you. An awareness of the behavior pat- arrested, from the time the cop first reference to section 542 of the Code of Civil came up until he left you in the jail Procedure (Domestic Violence Protection cell ... and "Then what happened? Act). That section defines domestic violence What did the cop first say to you? And as abuse perpetrated against "any of the following: (I) A spouse, former spouse, co what did you tell him? ... and did yOU habitant, former cohabitant, any other 24 PTSD may also be relevant to the tradi· ever see him write anything down? Any· adult person related by consanguinity or tional defense of heat of passion, to the ex body else around? What else did he say? affinity within the second degree, or a per tent that the defendant's "passion" may be What else did you say to him?" son with whom the respondent has had a the product of having been the victim of 3. Take it slow. Be gentle. Explain the a dating or engagement relationship. (2) A persistent violence. (See People v. Borchers concept of confidentiality in easily un' s person who is the parent of a child .... " (1958) 50 Cal.2d 321 [passion may be rage, derstandable ways. Tell the client why d Moreover, defendants may have a claim anger or any other intense emotion].) you are asking all these prying ques· a that limiting BWS-type mental evidence to 25 Many of the suggestions below are the tions. E.g.,: "This is important to me be' g the class of battered women would deprive product of a telephone conversation on cause it's part of who you are, and A other similarly situated defendants of the June 10, 1993 with psychologist Kathleen because this information may give us a P equal protection of the laws. A cohabitant Wayland, Duke Medical Center, Dept. of a 0; should likewise be able to present expert Psychiatry, Durham, North Carolina. Dr. way to help get you out of this situ ' testimony to explain the effects of their Wayland's work concentrates on trauma tion." Communicate with the client ) "J particular mental condition on criminal tized children and their resultant conduct often: keep him/her informed about the I tl intent. disorders. process you are going through. tc 40 CACJ/FO'U~ l" r; .~ N T A L s T A T E o E F E N s E s I 4. Once there has been a first men the law: that "a defendant is not respon knowledgeable in the particular syn tion of some traumatic event or pattern sible if at the time of his (sic) unlawful drome. Read whatever you can find. Iof behavior (physical or sexual abuse, conduct his (sic) mental or emotional Think about factual illustrations, gener I combat, whatever) then respond suppor processes or behavior controls were im alizations, studies you can use that con I tively and tread lightly. Remember that paired to such an extent that he (sic) nect your client's story to a universally for trauma survivors to describe the cannot justly be held responsible for his understandable story. Think about event is sometimes to relive the trauma. (sic) act." United States v. Brawner, 471 Robert Alton Harris, David Mason and Lawyers are not therapists. Try to get F.2d 969, 986 (D.C. Cir.1972 Bazelon, Felicia Morgan. I the court to pay for the services of a c.J., concurring in part and dissenting I therapist and/or look for one who is in part). See also CALJIC 9.35.1 (1992) Why Courts Resist Linking a , willing to treat your client pro bono. cautionary instruction on BWS. Defendant's Background to I 5. Be careful not to relate to your Offer another instruction to your ex Specific Intent client as a victim, so as not to reinforce pert defining the limitations of her role: Legal Fictions the negative self-image that often is a "As an expert witness, you may, if you The criminal justice system functions Ibyproduct of abusive treatment. Surviv wish, and if you feel you can, give your I ing an attempt at dehumanization is a opinion about whether the defendant testament to the individual's ability to suffered from a mental disease or de more effective witness without therapy. A I develop extreme coping mechanisms. fect. You may then explain how defen client who chooses not to undergo therapy Being able to talk about a trauma is an dant's disease or defect relates to his may appear detached and unemotive on the initial stage of recovery. Therapists call alleged offense, that is, how the develop witness stand. Some BWS specialists be Iit naming or claiming and believe it ment, adaptation and functioning of lieve that there is an advantage to having helps the person overcome repeated defendant's behavioral processes may the client appear before the jury in this un : reliving of the trauma. have influenced his conduct. This expla treated state. Rather than forcing therapy 1 6. Investigate your client's back- nation should be so complete that the on an unwilling client, these specialists ground. Locate all the documents you jury will have a basis for an informed prefer to offer expert testimony to explain can find: school records; hospital and judgment on whether the alleged crime the connection between their client's psychiatric records of client and par was a 'product' of his mental disease or trauma and her flat affect. J ents; parents' criminal records; police defect. But it will not be necessary for reports of domestic violence or sexual you to express an opinion on whether abuse in the client's home. the alleged crime was a 'product' of a 1 Any corroboration of your client's mental disease or defect, and you will AUl'()IVIA'fIC Istory serves a dual purpose: it makes not be asked to do so .... " (See Judge your defense more real to the court, Bazelon's model instruction in Washing CR()SS - Ithus increasing your chances of getting ton v. U.S. 390 F.2d 444, 457-58 (D.C. Cir. 1itto the jury, and it provides emotional 1967); EXAlVIINATI()N j support for the client. When you go to 2. Prepare your client to testify: No i gre~t lengths to find evidence to ~ack.up matter how impressive your expert, hy /)([l'id R. Reed ; ac!lent's story, you are commumcatmg your client's direct testimony is prob I a kind of faith that may help give the ably the best way to communicate Dramatically improve yourcross-exami Iclient the courage to testify. hislher mental state at the time of the al nation technique overnight! This revolu leged crime in the context of hislher life j tionary system not only reveals the sev story. Working with the client to help enteen secrets of great cross-examina jlf We lose admissibility arguments, himlher understand the relationship be tion but translates common courtroom 1how do we respond? Imagine the tween the traumatic events and hislher I judge has the nerve to deny a present circumstances may make it eas situations into easy-to-remember acro , carefully crafted and brilliantly ier for your client to communicate. nyms you'll use forever. Each acronym ) argued motion and offer Your ongoing conversations with your is thorough and designed for dramatic j of proof ... client, particularly if supplemented by impact. Never be lost with any witness. therapy, will affect your client's comfort Now, simply apply an acronym and au ! 1. Try again: see if the court will level-eliminating some of the flat tomatically destroy informants, identity i a!low a compromise. Request permis affect, detached quality that creates witnesses, detectives ... almost any type I Sion for the expert to testify about the credibility problems for a client who of witness to win cases. This book is the defendant's mental condition and about suffers from PTSD.26 only guide you'll ever need on cross any relevant syndromes, such as PTSD 3. Become the excluded expert in examination and a 'must' to become a 1,generally, or Battered Woman or closing argument: Consult with people great trial lawyer... ON SALE NOW! I~bused Child syndrome specifically. : fomise to refrain from asking for an 1,1\ J)l'dll,llhk Sl'llci \2') l)'i 1),lldhk 1(\ , ~Pinion that the alleged crime was a J)d\ Icll~ l\c'l'cI ,II :-;~)I) \\ I"illlc' 1)1\ d

Product" of the mental condition in 26 There are differing opinions among law SlIllc' III1 I~l'\ l'l II Iltll, ( \ ')(I:' II 1)1 . this case. Offer an instruction tailored yers who specialize in defense of battered "tlll) III1 :-;"'-.( ,:'-!() 1111 IIi/IlIIILIIIIIII I, to the facts of your case and the state of women as to whether the client makes a I J"" ·Vol. 20, No. , 41 !: 11 M E N T A l s T A T E o E F E N l~ s' t on the basis of some fundamental prin threatening to the status quo. will have to start by protecting OUr I ciples, strongly espoused, but often A defendant's psychosocial history is children. honored in the breach. These legal fic relevant to the ability to form criminal It is our job to try to bring evidence tions include the presumption of inno intent. Judges and juries need to he~r about the forces present in our clients' I. cence: a cornerstone of due process that the facts of the case in the context of the mental and physical lives into the COUrt. ( is widely proclaimed, but, inside the larger story, the whole story: "What was room, to fight the court's cynicism, and , courthouse, almost universally dis going on here? Who is this person? to tell each client's individual story. We believed. Though jurors are still in What were his/her options?" need to uncover these stories sooner structed to presume a defendant not If we acknowledge the role physical. rather than later: if we can bring this guilty, the judge and prosecutor often sexual and emotional abuse has in the kind of evidence into the courtroom at convey the opposite meaning by their at shaping of the psyche, we will have to an early stage in a person's antisocial titude toward the defendant. Cynicism replace our prisons with community development, then we create the possi. is contagious: it is not hard for an ob centers that provide childcare, health bility of intervention, and some of these ' server to pick up on the fact that most care, shelter, substance abuse treatment, same clients may not end up on Death participants in the system presume the parenting classes and job training. We Row. 0 defendant guilty (at least) as charged.

Prosecutors often see their job as sim ) ply proving the facts. Although most I crimes require a union of act and intent, intent is generally presumed from the 1993 CACJ/CPDA 1 (often grisly) facts themselves. Defense t efforts to focus the court's attention on Death Penalty Defense Seminar Syllabus Is the defendant's background and its ef ( h fect on his/her intent to commit the f crime are discouraged. For many trial Sold only to defense teams! 1 v judges, the only issue is "dig (s)he do it, II or didn't (s)he?" and, since we know c s(he) did, "let's get on to sentencing." y tI Institutional resistance to letting ju Did you miss the 1993 CACJ/CPDA Death Penalty Defense Seminar? You I( ries hear defendants' true-life horror can still benefit from the written materials by ordering the Seminar Syllabus. h stories is easy to understand: the crimi Edited by Gregory Paraskou of the Santa Clara Public Defender Office, this P nal law is based on two of the biggest l h legal fictions of all: that criminals are 90S-page syllabus is a treasure trove of late-breaking scientific and legal l II Evil, and that punishment works to developments that no capital lawyer should be without! Includes: sl deter them from future crimes.27 Tradi tional theories of crime and punishment DNA Selective Bibliography. William C. Thompson Irr w teach us that criminals are people ex John Wicks. Ph.D. hibiting an innate "vicious will" who, Brain Imaging Techniques. ( Ii when confronted with the choice be Controlling the Runaway Witness, Larry Pozner & Roger Dodd ( c( tween right and wrong, choose freely to Defending in an Age of Reciprocal Discovery, Charles Sevilla g( do wrong. 28 But those of us who Glossary of lAC Decisions, Clive Stafford Smith ar represent criminal defendants have a Whose Case Is It. Anyway? Stuart R. Rappaport UI th different point of view: as in Felicia Suggestions for Preparing Victim Impact Testimony,John Cotsirilos , Morgan's case, "choice" is rarely the m word that accurately describes our Christie Warren in clients' relationship to their actions. Facing the Future, Millard Farmer The criminal justice system has been Checklist for Handling Capital Cases, James McWilliams, Greg Paraskou, ye slow to legitimize the connection be Christie Warren ch th tween enormously traumatic life events Stephen Pittel, Ph.D. or chronic abuse and violent crime be References on Mitigation Issues, in cause the system is not equipped to han Accomplices & Snitches, Clive Stafford Smith bl dle it. Evidence that many "criminals" Coping Responses to Psychosocial Stressors Among Mexican & Central th are bruised and abused people acting American Immigrants. Amado Padillo, Richard Cervantes, Margarita ex out the destinies their families and com Maldonado, Rosa Garcia cil Sil munities have shaped for them is too ... and much, much more!

27 This article only addresses the first of these Members: $40.89; nonmembers: $51.71. two fictions. To order, caU CAC} at (310) 204·0502. 28 Pound, Roscoe, Introduction to F. SAYRE, CASES ON CRIMINAL LAW at xxxvi (1927). Co

42 CACJ/FORUr.I 19!