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

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Not Guilty by Reason of Victimization Susan Rutberg Golden Gate University School of Law, Srutberg@Ggu.Edu Golden Gate University School of Law GGU Law Digital Commons Publications Faculty Scholarship 12-1993 Not Guilty by Reason of Victimization Susan Rutberg Golden Gate University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.ggu.edu/pubs Part of the Criminal Law Commons Recommended Citation 20 CACJ Forum 36 (Dec. 1993) This Article is brought to you for free and open access by the Faculty Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Publications by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. ~ M E N T A L 5 T A T E D E F E N E S ( I Not Guilty by Reason of Victimization by Susan Rutberg 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.
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