deeming appellate argument waived for failure to object to magistrate’s R & R even though district court, sua sponte, reviewed record de novo
How later courts described this case
- deeming appellate argument waived for failure to object to magistrate’s R & R even though district court, sua sponte, reviewed record de novo
- concurring opinion by Jones, J.
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
concurring.
I concur in the outcome of this case because, as the majority concludes, United States v. Walters, 638 F.2d 947 (6th Cir. 1981) bars Kathy Thomas’ right to appeal. I write separately to note that if I were to reach the merits of this case I would grant the writ of habeas corpus. In my view, the trial court’s exclusion of expert testimony on the “battered wife syndrome” impugned the fundamental fairness of the trial process thereby depriving Thomas of her constitutional right to a fair trial. Mannino v. International Manufacturing Co., 650 F.2d 846 (6th Cir.1981); Bell v. Arn, 536 F.2d 123 (6th Cir.1976). There is sufficient literature which suggests that the public and thus, juries, do not understand the scope of the problem concerning battered women. See, e.g., Report From the Attorney General & Task Force on Domestic Violence (1978). Furthermore, they tend to be unsympathetic toward battered women. They fail to understand, for instance, why battered women do not leave their partners. Ascertaining a battered woman’s state of mind is crucial to a determination of this and other aspects of her behavior. It may bear on the responsibility or lack of it, for her response. In my opinion the expert testimony could have clarified the unique psychological state of mind of the battered woman and should have been admitted by the trial judge. The law cannot be allowed to be mired in antiquated notions about human responses when a body of knowledge is available which is capable of providing insight.