Amicus Curiae Brief — Melissa Elizabeth Lucio, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 21-5095

IN THE

Supreme Court of the Anited States

MELISSA ELIZABETH LUCIO,

Petitioner,

v.

BoBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

THIS IS A CAPITAL CASE

BRIEF OF FORMER PROSECUTORS,

ANTI-VIOLENCE ORGANIZATIONS, AND

EXPERTS IN THE FIELD OF GENDER-

BASED VIOLENCE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

JOHN P. MASTANDO III SANDRA BABCOCK

WEIL, GOTSHAL & MANGESLLP Counsel of Record

767 Fifth Avenue CLINICAL PROFESSOR

New York, NY 10153 CORNELL LAW SCHOOL

John.Mastando@weil.com 157 Hughes Hall

Ithaca, NY 14853

(607) 255-5278

slb348@cornell.edu

Counsel for Amici Curiae

WILSON-EPES PRINTING Co., INC. ~ (202) 789-0096 — WASHINGTON, D.C. 20002

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .........ccccccsceeees

SUMMARY OF ARGUMENT ..........cccceceeeeeees

ARGUMENT. ...... sissssscisssiaasasuscastmomaanesssaneaameeins

I. THIS COURT SHOULD GRANT CER-

TIORARI TO UPHOLD THE RIGHT OF

A VICTIM OF GENDER-BASED VIO-

LENCE TO PRESENT CRITICAL

EVIDENCE RELATING TO HER

TINNOCEN C Eira maxtemncnesnnmoneaenmnnnssanicnss

A. Melissa Lucio Suffered Severe Trauma

That Affected Her Demeanor After

Mariah’s Death And Her Responses

To Interrogation ............ccc:ccccceceeeeeeeeees

1.

Trauma And Abuse Marked

Melissa’s Early Childhood And

Continued Throughout Her Adult

Life .......ccscccsssesscessseessessessivsaiuareunesns

Defense Experts Concluded That

Melissa’s History Of Trauma

Impaired Her Functioning And

Damaged Her Mental Health........

The Defense Experts’ Conclusions

Are Consistent With Scholarly

Research On Trauma.............00008

(i)

11

14

i

TABLE OF CONTENTS—Continued

B. Without Dr. Pinkerman’s And Ms.

Villanueva’s Testimony, Melissa Was

Unable To Explain How Her Experiences Of Gender-Based Violence

Related To Her Defense ...............000008-

1. Dr. Pinkerman And Ms. Villanueva

Would Have Explained The Impact

Of Gender-Based Violence On

Melissa’s Reactions And Demeanor Following Mariah’s Death.........

2. Dr. Pinkerman And Ms. Villanueva

Would Have Explained That

Melissa’s Response To Police Interrogation Was Consistent With The

Reactions Of Trauma Victima.........

i. Melissa’s History Of Trauma

Shows That She Is Especially

Susceptible To Suggestion........

ii. Melissa’s Flat Affect Throughout The Interrogation Is Consistent With Research On Trauma Victims’ Behavior During

Situations Of Overwhelming

Emotion And Pain.................00.

II. THIS COURT SHOULD GRANT CER-

TIORARI BECAUSE THE ACTIONS OF

THE COURTS BELOW REFLECT

INDIFFERENCE TO THE CONSE-

QUENCES OF GENDER-BASED VIO-

LENC Enissssssccsanscsvssiauewessvoncasausseccescaulteeays

Page

16

16

17

17

21

22

li

TABLE OF CONTENTS—Continued

Page

A. The Handling of Melissa’s Interrogation And Trial Reflect A Profound

Misunderstanding Of The Nature Of

TTAUMA, .......ceescecessseceeeeeesesseeeeeseeeeseaees 22

B. The Court Of Appeals’ Plurality

Opinion Reflects Its Unawareness Of

The Consequences Of Gender-Based

VIOLENCE. ......eececceeeeeeesseeeseseeeeeseeeeseeenecs 24

CONCLUSION sisscstcsnsenexorecinasoanicesecscusspraapsiaics 25

iv

TABLE OF AUTHORITIES

CASES Page(s)

Lucio v. Lumpkin,

987 F.3d 451 (5th Cir. 2021)... passim

United States v. Alzanki,

54 F.3d 994 (1st Cir. 1995) .......ccceeeceeeeees

United States v. Lopez,

913 F.3d 807 (9th Cir. 2019)...

OTHER AUTHORITIES

Alison M. Nathanson, et al., The Prevalence

of Mental Health Disorders in a Community Sample of Female Victims of Inti-

mate Partner Violence, 3 Partner Abuse 2

(2012 wexsssssvassvanseswewnnneseseucrensceswessmacte

Bethany Brand, et al., Assessing Trauma-

Related Dissociation in Forensic Contexts: Addressing Trauma-Related Dissoclation as a Forensic Psychologist, Part

IT, 10 Psych. Injury & Law 298 (2017).....

Deborah Epstein & Lisa A. Goodman,

Discounting Women: Doubting Domestic

Violence Survivors’ Credibility and Dis-

missing their Experiences, 167 U. Penn.

L. Rev. 399 (2019) ......ccceescccsssssseesesseeerece

Gisli H. Gudjonsson, et al., False Confessions and Individual Differences: The

Importance of Victimization among Youth,

45 J. Personality & Individual Differences

801 (2008) sisesssscascsacenssecanasezeserescaxeusssescssats

23

23

14

15

20

20

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

JoAnn Y. Sacks, et al., The Impact of Early

Trauma and Abuse on Residential Substance Abuse Treatment Outcomes for

Women, 34 J. Substance Abuse Treat-

Ment YO (2OOB) ....ccccocosesosevesersvevsesssecersesence 14, 16

Judith Herman, Trauma and Recovery: the

Aftermath of Violence—From Domestic

Abuse to Political Terror (Basic Books ed.

1992) sasccornsncisawensanavasenvatsnnnsussarevesemesncecsuet passim

Katherine M. Iverson, et al., Cognitive—

Behavioral Therapy for PTSD and

Depression Symptoms Reduces Risk for

Future Intimate Partner Violence among

Interpersonal Trauma Survivors, 79 J.

Consulting & Clinical Psych. 193 (2011).... 15

Lenore E. A. Walker, False Confessions of

Battered Women, The Battered Woman

Syndrome (Springer Publ’g Co. 4th ed.

2017 )srasinaveccnncavcssurvavousancrareuseiautasevarsuesenes 19, 20

National Institute of Justice, The Validity

and Use of Evidence Concerning Battering and Its Effects in Criminal Trials,

Report Responding to Section 40507 of

the VAWA (1996) .......eceeeeceteeeeeeeeeeeee 15, 16, 19

Victoria L. Banyard, et al., The Long-Term

Mental Health Consequences of Child

Sexual Abuse: An Exploratory Study of

the Impact of Multiple Traumas in a

Sample of Women, 14 J. Traumatic

Stress 697 (2001) .....cccssescseoscesassesennsenesoes 14, 15

INTEREST OF AMICI CURIAE!

Amici are law professors, independent experts, former prosecutors, and organizations with expertise in

the field of gender-based violence. All have deep

familiarity with the nature and effects of gender-based

violence, including sexual violence and intimate

partner violence. As individuals and organizations

committed to protecting women who are victims of

gender-based violence, they have an abiding interest

in the legal system’s recognition and accommodation

of the needs of victims. They are also committed to

ensuring that courts and juries are educated about the

mental health consequences of gender-based violence.

Battered Women’s Justice Project (BWJP)

serves as a national resource center on the civil and

criminal legal responses to gender-based violence and

promotes systemic change within these systems to

create an effective and just response to victims, perpetrators, as well as the children exposed to genderbased violence.

The Criminal Defense & Advocacy Clinic (CDAC)

of Brooklyn Law School works to defend individuals in

the criminal legal system, particularly those who have

experienced gender-based violence, familial abuse,

and sexual exploitation. The CDAC works to implement alternatives to the carceral system and find

1 Pursuant to S. Ct. Rule 37.2(a), all parties received timely

notice of amici’s intent to file this brief, and all have provided

written consent to the filing of this amicus curiae brief. Pursuant

to S. Ct. Rule 37.6, no counsel for a party authored this brief in

whole or in part and no person or entity other than the amicus

or counsel made a monetary contribution to its preparation or

submission.

2

responses to harm that promote healing and

accountability.

Friendship of Women, Inc. provides leadership

and comprehensive services to empower and promote

safety, health, and the overall well-being of adults and

children impacted by family and sexual violence.

Friendship of Women, Inc. maintains a clear vision

that we are, above all, a social change agency committed to ending violence against battered women, men,

and their children in all of Cameron County

communities.

The Gender Justice Clinic at Cornell Law School

seeks to address gender-based violence on a local,

national, and global level. The Clinic focuses on issues

such as intimate partner violence, sexual assault, and

discrimination at work and in the criminal legal

system.

Global Rights for Women (GRW) works with

leaders around the world to advance women and girls’

human right to live free from violence through legal

reform and institutional and social change. GRW

works to eradicate gender-based violence by ensuring

that survivors are acknowledged and believed, perpetrators are held accountable, and communities no

longer tolerate gender-based violence.

Illinois Coalition Against Domestic Violence

(ICADV) is a not for profit organization founded in

1978 by 12 local domestic violence programs with the

vision to eliminate violence against women and children,

and to promote the eradication of domestic violence

across the state of Illinois. ICADV is a membership

organization representing the interests of over 50 domestic violence service-provider agencies and community

partners that provide direct services to survivors of

3

domestic violence. ICADV has an interest in transforming societal attitudes and institutions regarding

the role, consequences, and impact of gender-based

violence on survivors especially those who are charged

with crimes.

Indiana Coalition Against Domestic Violence,

Inc. (ICADV) works to prevent and eliminate domestic

violence. It pursues a vision where all people engage

in healthy relationships characterized by the mutual

sharing of resources, responsibilities and affection;

where youth are nurtured with those expectations;

and where all people are supported within a society

committed to equality in relationships and equity in

opportunity as fundamental human rights.

Jane Doe Inc. (JDI) (the MA Coalition Against

Sexual Assault and Domestic Violence) is the statewide dual coalition of 60 member programs serving

survivors of SA/DV in Massachusetts. We offer policy

advocacy and training and strive to uplift the needs of

survivors at the margins in our advocacy.

The National Clearinghouse for the Defense of

Battered Women works to ensure justice for victims

of gender-based violence, where the defendant’s experiences of abuse are relevant to her legal claim or

defense. The National Clearinghouse assists victim

defendants by providing technical expertise, defense

attorneys, anti-domestic violence advocates, expert witnesses, and others. The National Clearinghouse works

with defense teams to help factfinders understand the

ways in which lay and expert evidence of the defendant’s experiences of abuse may help them understand

behavior, evaluate facts, assess credibility, and determine culpability.

4

The Nevada Coalition to End Domestic and

Sexual Violence (NCEDSV) was founded in 1980 to

work toward the elimination of domestic and sexual

violence against all persons. Our member programs

share the goal of ending domestic violence through

coordinated community response efforts, community

education, public policy development, and services for

victims.

Ohio Domestic Violence Network (ODVN) is

Ohio’s federally recognized state coalition and comprehensive domestic violence resource. ODVN provides

direct legal services, training, technical assistance,

and advocacy to over 15,000 survivors, their families,

and allies. ODVN provides training opportunities for

judges, attorneys, children services agencies, advocates, and other community service providers.

The Survivors Justice Project (SJP) of Brooklyn

Law School is an interdisciplinary collective that

includes domestic violence survivors, currently and

formerly incarcerated women, activists, lawyers, and

students. It works to decarcerate domestic violence

survivors by ensuring the robust implementation and

expansion of the New York State Domestic Violence

Survivors Justice Act.

The Texas Council on Family Violence (TCFV)

is a nonprofit coalition in Texas dedicated solely to

creating safer communities and freedom from family

violence. With a statewide reach and direct local

impact, TCFV shapes public policy, equips service

providers with essential tools, and initiates strategic

prevention efforts. Since 1978, we have been a nationally recognized leader in our efforts to end family

violence.

5

The Women’s Defense Initiative of the Center

on Wrongful Convictions (CWC), founded in 1999

at Northwestern University Law School, identifies

and resolves wrongful convictions. To date, the CWC

has exonerated more than forty innocent men, women,

and children from around the country.

The Women’s Prison Project at Tulane Law

School is a joint program of the Law School’s Domestic

Violence Clinic and the Criminal Justice Clinic. The

Project seeks justice and freedom for Louisiana women

who are unjustly incarcerated for killing an abusive

partner, or for having participated in crimes under the

duress of an abusive partner. The program focuses on

intimate partner violence and trauma as a pathway to

prison for women.

Kerry Hyatt Bennett has been an adjunct professor

at the Indiana University Robert H. McKinney School

of Law for the past decade, specializing in state and

federal domestic violence law. She has also been the

Chief Legal Counsel at the Indiana Coalition Against

Domestic Violence (ICADV) since 2005.

Sarah M. Buel is a former prosecutor and law

professor with more than forty years’ experience who

maintains an active interest in the fair and effective

functioning of the criminal justice system. She was

co-founder of the University of Texas Voices Against

Violence program to provide services for victims of

sexual assault, relationship violence, and stalking.

She also co-founded the interdisciplinary University of

Texas Institute on Domestic Violence and Sexual

Assault.

Cindy Dyer was appointed by President George W.

Bush to serve as the Director of the United States

Department of Justice, Office on Violence Against

6

Women from 2007-2009. Prior to her appointment she

was a prosecutor with the Dallas County, Texas,

District Attorney’s Office.

Leigh Goodmark is the Marjorie Cook Professor of

Law at the University of Maryland Frances King

Carey School of Law. Since 2013, Professor Goodmark

has led the Gender Violence Clinic at the University

of Maryland School of Law. She is the author of

Decriminalizing Domestic Violence: A Balanced Policy

Approach to Intimate Partner Violence (University of

California Press, 2018) and A Troubled Marriage:

Domestic Violence and the Legal System (New York

University 2012). She is the co-editor of Comparative

Perspectives on Gender Violence: Lessons from Efforts

Worldwide (Oxford 2015).

Carol Jacobsen is a professor emerita at the

University of Michigan and the Founding Director of

the Michigan Women’s Justice & Clemency Project.

She is the author of For Dear Life: Women’s Decriminalization and Human Rights in Focus (2019).

Professor Donna Kay Coker is the Dean’s

Distinguished Scholar at the University of Miami

School of Law. Professor Coker is a nationally recognized expert on intimate partner violence. She focuses

on the connection between economic vulnerability,

restorative justice responses, and the intersections of

gender, race, poverty, and immigration status.

Nancy K. D. Lemon is a lecturer at the Berkeley

School of Law of the University of California. Lemon,

a leading authority on domestic violence for more than

35 years, pioneered its study in law schools and is the

author of Domestic Violence Law, the premier textbook on the subject (West Group, 5th Ed. 2018). Lemon

has been teaching the Domestic Violence Seminar at

7

Berkeley Law—the first law school class of its kind—

since 1988, and also directs the Domestic Violence

Field Placement.

Martha Mahoney is a professor and Dean’s

Distinguished Scholar at the University of Miami

School of Law. Professor Mahoney’s work in criminal

law began with an effort to resolve problems involving

domestic violence and claims of self-defense and

expanded to include feminist theory and challenges to

social change. Governor Lawton Chiles appointed her

to serve on the Domestic Violence Review Panels consulting for the Florida Parole Commission on domestic

violence issues in petitions for clemency..

SUMMARY OF ARGUMENT

Melissa Lucio was only six years old when she was

sexually abused for the first time. For the next two

years, her stepfather repeatedly abused her, and

Melissa was powerless to stop him. Like many child

sex-abuse victims, Melissa became vulnerable to

repeated victimization. At the age of sixteen, she

married a violent man who abandoned her after she

bore five children. Her next partner continued the

cycle of violence, punching her in public and beating

her at home. By the time she gave birth to her

twelfth child, Melissa had experienced homelessness,

drug addiction, and severe mental illness.

As a result of the violence she endured throughout

her life, Melissa suffered from Post-Traumatic Stress

Disorder and depression. Her symptoms, as described

by two experts appointed to assist the defense team,

were consistent with those of other trauma victims:

dissociation, emotional numbing, and avoidance. These

symptoms gave her the appearance of being detached,

unemotional, and—from the perspective of Texas

8

Ranger Victor Escalon—guilty. In the wake of her

daughter’s death, witness after witness described

her lack of emotion and flat affect. Escalon testified

at trial that her slumped posture, passivity, and

failure to make eye contact during interrogation told

him “right there and then” that she “did it.” Escalon

eventually extracted Melissa’s agreement that she

“did it,” after five hours of interrogation.

Yet there was another explanation for Melissa’s

demeanor and responses to interrogation that the

jury never heard. Defense experts were prepared to

explain to the jury that her flat affect and acquiescence were symptoms of trauma resulting from the

violence she had endured throughout her life. By

excluding this testimony, the trial court deprived

Melissa of the only means she had of explaining that,

notwithstanding her demeanor and self-incriminating

statements, she was innocent of her daughter’s murder. In the absence of informed expert opinion, and

deprived of critical context for her capitulation to

Escalon’s repeated suggestions that she was responsible for her daughter’s death, the jury convicted her.

The trial court’s ruling prevented Melissa from presenting reliable evidence relating directly to her innocence. The Court of Appeals’ failure to remedy this

violation of her constitutional rights demands this

Court’s intervention.

9

ARGUMENT

I. THIS COURT SHOULD GRANT CERTIO-

RARI TO UPHOLD THE RIGHT OF A

VICTIM OF GENDER-BASED VIOLENCE

TO PRESENT CRITICAL EVIDENCE

RELATING TO HER INNOCENCE.

A. Melissa Lucio Suffered Severe Trauma

That Affected Her Demeanor After

Mariah’s Death And Her Responses To

Interrogation.

1. Trauma And Abuse Marked Melissa’s

Early Childhood And Continued

Throughout Her Adult Life.

Male violence was a constant presence in Melissa

Lucio’s life. When she was a young child, her father

abandoned her and her five brothers and sisters.

ROA.5010, 5466. After his disappearance, Melissa’s

mother became the family’s sole provider. ROA.5010.

She entered into a series of relationships with men

who were physically violent with her, often in

Melissa’s presence. ROA.5011.

When Melissa was only six years old, one of

her mother’s partners began sexually abusing her.

ROA.5006, 5011. When Melissa told her mother about

the abuse, her mother did not believe her. ROA.5006.

For two years, until she was eight years old, Melissa

endured repeated sexual violence. ROA.5006, 5012.

These early experiences of subjugation and fear

shaped all of Melissa’s subsequent relationships. See

Lucio v. Lumpkin, 987 F.3d 451, 490 (5th Cir. 2021)

(Higginbotham, J., dissenting) (“Abuse would remain

a feature of Melissa’s relationships with the men

closest to her.”).

10

When Melissa was sixteen years old, she dropped

out of high school, ROA.5389, and married Guadalupe

Lucio, ROA.5012. Mr. Lucio was an alcoholic who

was physically and emotionally violent throughout

their marriage. ROA.5008. In 1994, Mr. Lucio abandoned Melissa and their five children—repeating the

cycle of abuse and abandonment Melissa had experienced as a child. ROA.4990. Several months later,

Melissa met and moved in with Robert Alvarez.

ROA.4990. He too was violent and abusive. ROA.5009,

5021.

The State of Texas learned of the violence in

Melissa’s home long before her arrest, yet repeatedly

failed to protect her and her children from harm.

Lucio, 987 F.3d at 491-93. Melissa’s children called

911, ROA.5445, and reported to Child Protective

Services (CPS) that there was domestic violence in

their home. ROA.5441. But neither the police nor

CPS took any action. ROA.5441, 5445. Similarly, in

2004, neighbors stated that they heard Mr. Alvarez

yelling epithets at the children, ROA.5445, and the

school principal reported Mr. Alvarez punching Melissa

in the park. ROA.5009. CPS again did nothing.

ROA.5442. As one of the dissenters in the Court of

Appeals observed, “the tragedy of Mariah’s death

unfolded against the depressingly familiar background of the State’s struggle with CPS’s systemic

failures.” Lucio, 987 F.3d at 492 (Higginbotham, J.,

dissenting).

The violence that men meted out on Melissa

caused lasting psychological damage. While the State

stood by and watched, Melissa struggled to cope

with the consequences of her trauma. She lived in a

state of constant economic precarity and was homeless

for several months. ROA.4995. She was unable to

11

extricate herself from her relationship with her

abuser. And she was powerless to remove herself

and her children from a home that largely replicated

the violence of her childhood. See Lucio, 987 F.3d at

493 (Higginbotham, J., dissenting). As Dr. John

Pinkerman later observed:

From early childhood through her first marriage and into her present relationship with

Mr. Alvarez, Mrs. Lucio was subject to sexual, physical and emotional abuse. The abuse

was known by others but no significant

actions were ever taken to protect her. She

learned that outcries were ineffective and it

was better to cultivate a predictable and

secure abusive relationship than risk losing

family and identity as a mother.

ROA.5393.

2. Defense Experts Concluded That

Melissa’s History Of Trauma

Impaired Her Functioning And

Damaged Her Mental Health.

The consequences of the severe, repeated genderbased violence that Melissa endured were documented by two experts appointed to assist the defense

team at trial: social worker Norma Villanueva and

psychologist Dr. John Pinkerman. Both Villanueva

and Pinkerman reviewed extensive information

regarding Melissa’s history of abuse, relationships,

and family life, and met with Melissa several times

prior to trial. ROA.4987-88, 8975. Dr. Pinkerman also

conducted a comprehensive psychological evaluation.

ROA.8975.

In preparation for her testimony, Ms. Villanueva

chronicled Melissa’s traumatic experiences and

12

lifetime of abuse. When explaining her proposed

testimony to the trial judge, Ms. Villanueva noted

that Melissa’s history of trauma “influenced her decision making and how she felt with the different

investigators, male and female . . . [and] how she

dealt] with different people in levels of authority.”

ROA.4706-07. In the penalty phase of trial—the only

time she was allowed to testify before the jury—Ms.

Villanueva explained that Melissa consistently

displayed a flat affect. ROA.5011. This “dead pan

face,” she observed, is “very characteristic of children

that have been abused, especially, if they’re not being

protected.” ROA.5011. She also testified that Melissa

fit the profile of a battered woman and that her affect

and demeanor were typical of battered women and

child-abuse victims. ROA.5032-33.

Dr. Pinkerman’s report confirmed Ms. Villanueva’s

observations and explained how Melissa’s experiences of gender-based violence had affected her

mental health. He noted that Melissa “tends to

assume the role of the passive and weak child” when

confronted by someone stronger than her. ROA.5392.

He then connected this passivity to Melissa’s childhood abuse: “In times of significant stress, she withdraws into simpler, concrete, unrealistic and constricted functioning marked by passivity, denial,

acquiescence and resignation.” ROA.5393. “This pattern of behavior is likely associated with her early

childhood experiences of abuse and is often identified

in individuals experiencing prior trauma such as

sexual abuse.” ROA.5393. Dr. Pinkerman also found

that Melissa’s personality was “characterized by

repression, denial and dissociation.” ROA.5393. In

times of intense pain, he noted, Melissa is likely to

dissociate, and “that means, in a manner, stepping

away from ourselves, so we don’t feel the pain. .

13

As a result of such a disassociation, we may not be

fully thinking, seeing, hearing, or feeling everything.”

ROA.5395.

Dr. Pinkerman concluded that Melissa suffered

from Post-Traumatic Stress Disorder as a result of

the violence she endured. ROA.5121, 5396. She “exhibits a consistent pattern of ‘psychological numbing’

often identified with victims of violence and abuse.”

ROA.5394. Thus, in times of significant stress, she

“quickly numbs her emotions and assumes a passive,

empty presentation.” ROA.5393. He backed up his

conclusions by referring to psychological literature,

explaining that “numbing of responsiveness” is “a

psychological defense against remembering painful

affects [sic] . . . [it] is a core, biologically based,

symptom of PTSD.” ROA.5395. In addition to her

PTSD symptoms, Dr. Pinkerman noted that Melissa

experienced depression stemming from her lifetime

of abuse. ROA.5121. Finally, Dr. Pinkerman concluded that Melissa was unlikely to have physically

harmed Mariah as she had no history of physical

violence, aggression, or abuse. ROA.5394.

Dr. Pinkerman and Ms. Villanueva clearly and

consistently attested to the pervasive impact that

Melissa’s history of trauma had on her functioning.

Their observations and conclusions—which they were

prevented from sharing with the jury at the culpability phase of Melissa’s trial—were directly relevant to

explaining Melissa’s reactions in the wake of Mariah’s

death and her responses to interrogation.

14

3. The Defense Experts’ Conclusions

Are Consistent With Scholarly

Research On Trauma.

Dr. Pinkerman’s and Ms. Villanueva’s observations

regarding Melissa’s behavioral patterns and psychological functioning are consistent with research on

victims of gender-based violence. Those who suffer

childhood trauma are more likely to experience

repeated trauma throughout their lives, Victoria L.

Banyard, et al., The Long-Term Mental Health

Consequences of Child Sexual Abuse: An Exploratory

Study of the Impact of Multiple Traumas in a Sample

of Women, 14 J. Traumatic Stress 697, 699 (2001),

along with “increased victimization, psychological dysfunction, substance abuse, and homelessness,” JoAnn

Y. Sacks, et al., The Impact of Early Trauma and

Abuse on Residential Substance Abuse Treatment Outcomes for Women, 34 J. Substance Abuse Treatment

90, 91 (2008). As a result, victims learn to passively

accept repeated abuse as “a dreaded but unavoidable

fate” that is “the inevitable price of the relationship.”

Judith Herman, Trauma and Recovery: the Aftermath

of Violence—From Domestic Abuse to Political Terror

112 (Basic Books ed. 1992).

Researchers have repeatedly found that sustained

childhood sexual abuse and other forms of genderbased violence have long-lasting consequences for a

victim’s mental health. Anywhere from 51 to 75 percent of women who have experienced intimate partner violence exhibit symptoms of PTSD, compared to

just 10.4 percent of the general population. Alison M.

Nathanson, et al., The Prevalence of Mental Health

Disorders in a Community Sample of Female Victims

of Intimate Partner Violence, 3 Partner Abuse 2

(Jan. 2012). Both PTSD and depression are “often

15

chronic... and can persist many years after the abuse

has ended.” Katherine M. Iverson, et al., Cognitive-

Behavioral Therapy for PTSD and Depression Symptoms Reduces Risk for Future Intimate Partner Violence among Interpersonal Trauma Survivors, 79 J.

Consulting & Clinical Psych. 193 (2011).

Women who have suffered multiple forms of trauma, like Melissa, are apt to suffer more severe mental

health symptoms. Banyard, The Long-Term Mental

Health Consequences of Child Sexual Abuse, at 709;

Herman, Trauma and Recovery, at 94. Dissociation,

avoidance, and emotional numbing are common symptoms of PTSD. Banyard, The Long-Term Mental

Health Consequences of Child Sexual Abuse, at 697;

Bethany Brand, et al., Assessing Trauma-Related

Dissociation in Forensic Contexts: Addressing Trauma-

Related Dissociation as a Forensic Psychologist, Part

IT, 10 Psych. Inj. and Law 298, 299 (2017). When confronted with overwhelming stress or a traumatic

event, trauma victims may enter dissociative or

amnesic states to cope with the pain. National Institute of Justice (NIJ), The Validity and Use of Evidence

Concerning Battering and Its Effects in Criminal

Trials, Rep. Responding to Section 40507 of the VAWA

11 (1996). During amnesic states, the individual is

unable to recall traumatic events. Jd. at 10. And during dissociative states, the individual experiences a

“detached state[] of consciousness” and the “surrender of voluntary action, suspension of initiative and

critical judgment, subjective detachment or calm .. .

2 One study found that nearly 48 percent of domestic violence

victims experience depression. National Institute of Justice

(NIJ), The Validity and Use of Evidence Concerning Battering

and Its Effects in Criminal Trials, Report Responding to Section

40507 of the VAWA 13 (1996).

16

including numbness and analgesia, and distortion of

reality.” Herman, Trauma and Recovery, at 43. When

in these states, the victim may adopt a flat affect “to

avoid overwhelming emotions associated with the

trauma.” NIJ, The Validity and Use of Evidence

Concerning Battering, at 10.

The assessments of Dr. Pinkerman and Ms.

Villanueva indicate that Melissa Lucio was experiencing some or all of these symptoms at the time of

Mariah’s death and during her interrogation.

B. Without Dr. Pinkerman’s And Ms.

Villanueva’s Testimony, Melissa Was

Unable To Explain How Her Experiences Of Gender-Based Violence

Related To Her Defense.

1. Dr. Pinkerman And Ms. Villanueva

Would Have Explained The Impact

Of Gender-Based Violence On

Melissa’s Reactions And Demeanor

Following Mariah’s Death.

Melissa Lucio’s experiences of gender-based violence affected her entire life. She lived in a state of

constant economic precarity and was homeless for

several months. ROA.4995. And like many trauma

victims, she also used drugs. Sacks, The Impact of

Early Trauma and Abuse, at 91; ROA.4993. At times,

Melissa was depressed to the point of “giving up.”

ROA.9010.

The State exploited Melissa’s symptoms of trauma

to persuade the jury of her guilt. For example, the

State repeatedly elicited descriptions of Melissa’s

calm and detached demeanor after Mariah’s death.

ROA.4364—65; 4386-87; 4897-98. Had he been permitted to testify, Dr. Pinkerman would have explained

17

that Melissa dissociated from the reality of losing

her daughter and numbed her emotions to distance

herself from the pain. ROA.5131-33, 5393. In the

absence of his expert opinion, the jury was apt to

conclude—as the State clearly hoped it would—that

her lack of visible emotion was a sign of cold indifference to her child’s death.

Additionally, the State elicited testimony from

Victor Escalon, one of Melissa’s interrogators, that he

knew Melissa was guilty before he even began to

question her. After describing her body language—

that she hung her head down, avoided eye contact,

and slumped in her chair—Escalon said that he knew

“right there and then” that she “did it.” ROA.4410. Dr.

Pinkerman and Ms. Villanueva would have explained

to the jury that Melissa’s body language and demeanor

were not indicative of guilt but were instead consistent with the symptoms of trauma caused by her

experiences of violence. ROA.5029-32, 5132-338.

2. Dr. Pinkerman And Ms. Villanueva

Would Have Explained That Melissa’s

Response To Police Interrogation

Was Consistent With The Reactions

Of Trauma Victims.

i. Melissa’s History Of Trauma

Shows That She Is Especially

Susceptible To Suggestion.

On the night of Mariah’s death, Mariah was rushed

to the hospital while Melissa was taken to the police

station to be interrogated. Once there, five interrogators questioned Melissa, ROA.4232, for over five

hours, ROA.4238, from ten at night to three in the

morning. ROA.4332-33. They did not offer her food to

eat nor did they allow her to sleep. ROA.4333. While

18

interrogating her, the detectives repeatedly insisted

that she was responsible for Mariah’s death. They

stopped only when Melissa finally acquiesced to their

version of events.°

One of the interrogators, Texas Ranger Victor

Escalon, pointed to specific bruises in photographs

taken of Mariah’s dead body and asked Melissa how

they happened. ROA.8202-04. Although Melissa

responded that she did not know what happened and

that she did not hit Mariah, Escalon continued to

insist that she was responsible for those bruises.

ROA.8202-04. Melissa ultimately capitulated to the

pressure to repeat what Escalon kept telling her,

stating “I guess I did it.” ROA.8204. After securing this

admission, Escalon brought a doll into the interrogation room at 3 a.m., ROA.8220, and asked Melissa

to demonstrate on the doll how she would spank

Mariah. ROA.8223. When Melissa dutifully complied,

Escalon disregarded it and insisted that she hit the

doll harder, “real hard like .. . like you would do it.”

ROA.8224. When Melissa insisted that her initial

demonstration was accurate, he again dismissed her

and he demonstrated a hard spank. ROA.8224. He

then instructed Melissa to spank the doll again and

mimic his demonstration, which she did. ROA.8224.

The prosecutors then presented these admissions to

the jury as evidence of Melissa’s guilt. Lucio, 987 F.3d

451 at 500-01. As one of the dissenting opinions below

observed,

A battered woman was convicted of capital

murder because, in a case lacking direct evidence, prosecutors told the jury that, five

3 For a more in-depth discussion of the interrogation, see Pet.

8-10.

19

hours into interrogation, in the middle of the

night after the discovery of her dead child,

[Melissa] accepted a seasoned interrogator’s

suggestion that she was responsible, ultimately agreeing with him that she “did it.”

Lucio, 987 F.3d 451 at 517.

In reality, Melissa’s acceptance of the interrogators’ suggestions was entirely consistent with the

reactions of trauma victims. Trauma victims often

experience psychological reactions that make them

look guilty, even when they are not. NIJ, The Validity

and Use of Evidence Concerning Battering, at 10-11.

Such reactions include “the absence of emotional

reactions ... or a wish to be punished for the assault.”

Id. Trauma expert Judith Herman has reported that

trauma victims may respond to trauma or perceived

danger with feelings of “indifference, emotional

detachment, and profound passivity.” Trauma and

Recovery, at 42-48. Dr. Lenore Walker, one of the

foremost experts on Battered Woman Syndrome, has

confirmed that victims of intimate partner violence

may be therefore “more susceptible to internalizing

guilt and assuming responsibility for the crime.” False

Confessions of Battered Women, The Battered Woman

Syndrome, 459 (Springer Publ’g Co. 4th ed. 2017). Dr.

Pinkerman’s conclusions, which he was unable to

share with the jury at the culpability stage, were

consistent with this scholarly research. He would have

explained to the jury that Melissa was often passive

when confronted by authority figures, and that she

numbed her emotions and dissociated from painful

events (such as her daughter’s death). ROA.5393-94.

Research shows that past trauma is “significantly

associated” with heightened suggestibility among

individuals who falsely confess to crimes. Gisli H.

20

Gudjonsson, et al., False Confessions and Individual

Differences: The Importance of Victimization among

Youth, 45 J. Personality & Individual Differences

801, 804 (2008). Dr. Walker coined the phrase “acquiescence response bias” to describe how victims

respond affirmatively to authority figures “whether

or not it makes sense to them.” False Confessions, at

458. Similarly, domestic violence victims, like Melissa,

may have “automatic, often unconscious habits of

obedience,” making them vulnerable to authority figures. Herman, Trauma and Recovery, at 111.

Many victims “have such profound deficiencies in

self-protection that they can barely imagine themselves in a position of agency or choice.” Herman,

Trauma and Recovery, at 112. These victims are

“easily subjected to influence from authority figures,”

especially when they have been conditioned by their

abusers to be submissive and compliant in order to

stop the violence. Walker, False Confessions, at 458.

This is as true of victims of childhood sexual abuse, see

Herman, Trauma and Recovery, at 112, as it is of

victims of domestic violence, Deborah Epstein & Lisa

A. Goodman, Discounting Women: Doubting Domestic

Violence Survivors’ Credibility and Dismissing their

Experiences, 167 U. Penn. L. Rev. 399, 413-14 (2019).

Melissa was both.

Intimate partner violence can also compromise a

victim’s ability to focus on long-term consequences.

Walker, False Confessions, at 458. Viewed in this

light, Melissa’s acquiescence may have served “as an

immediate way of getting out of a very stressful

situation.” Id. Dr. Pinkerman’s findings support this

conclusion. He explained that after her arrest, Melissa

did not understand the gravity of the situation and

still thought she could reunite with her children.

21

ROA.5394. But in the absence of Dr. Pinkerman’s and

Ms. Villanueva’s testimony, the jury had no reason to

attribute Melissa’s trauma symptoms to anything

other than a guilty conscience.

In sum, we agree with the conclusion of Judges

Haynes, Higginbotham, Stewart, Dennis, Elrod,

Graves, and Higginson in the Court below: without

Dr. Pinkerman’s and Ms. Villanueva’s testimony at

the culpability phase, Melissa was unable to explain

to the jury how her history of trauma caused her to

passively accept her interrogators’ insistence that

she was responsible for her child’s death. Therefore,

Melissa—“a battered woman and mother—must be

heard to answer why she acquiesced and told her

interrogator, ‘I just did it.” Lucio, 987 F.3d at 518

(Higginson, Stewart, and Elrod, JJ, dissenting).

ii. Melissa’s Flat Affect Throughout

The Interrogation Is Consistent

With Research On Trauma Victims’ Behavior During Situations

Of Overwhelming Emotion And

Pain.

In the video of Melissa’s interrogation, which was

introduced as evidence, Melissa’s demeanor was

“constrained and her affect was flat.” ROA.5394. Dr.

Pinkerman and Ms. Villanueva would have explained

this demeanor as consistent with those who have

experienced extreme trauma. Dr. Pinkerman would

have informed the jury that Melissa “exhibits a consistent pattern of ‘psychological numbing,” ROA.5394,

and the ability to isolate or disassociate her feelings

and thoughts. ROA.5132. He would have explained

that her long history of childhood and adult abuse,

along with Mariah’s death, contributed to her dissociative state and flat affect. ROA.5132. Ms. Villanueva

22

would likewise have testified that Melissa’s flat affect

was consistent with the behavior of individuals who

had endured childhood sexual abuse. ROA.5011. Without their testimony, the jury was given no explanation

for why a grieving mother would not cry, would not

openly express emotion, and would instead appear

emotionally detached in the wake of her child’s death.

II. THIS COURT SHOULD GRANT CERTIO-

RARI BECAUSE THE ACTIONS OF THE

COURTS BELOW REFLECT INDIFFER-

ENCE TO THE CONSEQUENCES OF

GENDER-BASED VIOLENCE.

A. The Handling Of Melissa’s Interrogation And Trial Reflect A Profound

Misunderstanding Of The Nature Of

Trauma.

The legal proceedings in Melissa Lucio’s case expose

the legal system’s failure to understand the consequences of gender-based violence and its relevance in

the criminal justice system. This was evident during

Melissa’s interrogation when the detectives repeatedly pressured her to confess. Given Melissa’s background as a trauma victim and her susceptibility to

suggestion, the interrogators’ behavior was particularly problematic. They interrogated her for over five

hours, ROA.4238, and during some of that time, male

detectives were left alone in the room with her. ROA.

4232-33. Even more troubling, at 2:30 a.m. Ranger

Victor Escalon turned the camera away from Melissa,

ROA.8216, and told her he was going to put her hair

into a ponytail. ROA.8217. This behavior by a male

interrogator asserted dominance over Melissa and

relegated her to the role of a child. See ROA.5392

(noting that Melissa “tends to assume the role of

the passive and weak child” when confronted by some-

23

one stronger than her). Given her background as a

trauma victim, the male detective’s behavior ensured

that Melissa was compliant and submissive to his

demands—including his instructions to hit the doll

harder and harder.

Then, at trial, the State elicited testimony from

Escalon comparing Melissa’s behavior to that of an

innocent person. After describing Melissa’s passivity,

ROA.4410, Escalon testified that innocent individuals are “going to be upset .. . they’re going to tell you:

‘Get out of my face. I didn’t do anything .. . I want

my attorney.” ROA.4411. He further explained that

the difference in behavior between a guilty person

and an innocent person is “black and white. You'll see

the difference. It'll stand out.” ROA.4411.

But when the defense tried to introduce testimony

that would have directly countered this non-expert

opinion by explaining how Melissa’s history of

gender-based violence influenced her behavior and

statements, the judge excluded it. This ruling reveals

the court’s failure to comprehend how gender-based

violence can affect a victim’s psychological functioning and interactions with authority figures—and

underscores the importance of admitting that very

testimony. Cf. United States v. Lopez, 913 F. 3d 807,

823 (9th Cir. 2019) (expert testimony on Battered

Woman Syndrome, and other similar psychological

states, can help a jury dismantle “some widely held

misconceptions about [the] victims, so that it may

evaluate the evidence free of the constraints of popular myths”); United States v. Alzanki, 54 F.3d 994,

1006 (1st Cir. 1995) (finding that expert testimony on

abuse victims’ behavior “was ‘reasonably likely’ to

assist the jury in understanding and assessing the

evidence [because] the matter at issue was highly

24

material, somewhat technical, and beyond the realm

of acquired knowledge normally possessed by lay

jurors”).

B. The Court Of Appeals’ Plurality

Opinion Reflects Its Unawareness Of

The Consequences Of Gender-Based

Violence.

Although amici agree that the plurality opinion of

the court below is not controlling, it is noteworthy

that the plurality fails to acknowledge the significance of Melissa’s history as a trauma victim. The

plurality’s recitation of the facts glosses over Melissa’s

history of sexual abuse and intimate partner violence.

By doing so, it reaffirms the trial court’s erroneous

reasoning that Melissa’s experiences of gender-based

violence were irrelevant to her defense.

The plurality’s failure to comprehend the effects

of gender-based violence was apparent in its disdainful treatment of Melissa’s drug use. Lucio, 987 F.3d at

479 (observing that Melissa and her husband “sold

thelir] food stamps and spent the money on cocaine”).

Had the plurality understood the nature and effects

of trauma, it would have recognized that trauma

victims often use drugs to numb or escape the painful

memories of abuse. Herman, Trauma and Recovery, at

44, By failing to recognize the relevance of Melissa’s

background of gender-based violence, the plurality

removed essential context for her actions, erased her

experiences, and compounded the trial court’s failures.

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