Amicus Curiae Brief — Owens v. Steele (No. 09-130)

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No. 09-130

Supreme Court, U.S.

FILED

AUG 28 2009

RS

IN THE

Supreme Court of the United

| _OFFICE OF THE CLERK

GAILE K. OWENS,

Petitioner,

v.

JEWEL STEELE, Warden,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED States Court OF APPEALS

FOR THE SIXTH CIRCUIT

= ee ee oe ee

BRIEF OF AMICUS CURIAE

NATIONAL CLEARINGHOUSE FOR THE DEFENSE

OF BATTERED WOMEN IN SUPPORT

OF PETITIONER

ELiot H. SCHERKER KarEN M. GOTTLIEB

JULISSA RODRIGUEZ Counsel of Record

Kerri L. MCNULTY Post Office Box 1388

GREENBERG TRAURIG, PA. Coconut Grove, FL 33233-1388

1221 Brickell Avenue Telephone: (305) 648-3172

Miami, FL 33131 Facsimile: (805) 648-0465

Telephone: (305) 579-0500

Facsimile: (305) 579-0717

PETER R. GOLDBERGER

50 Rittenhouse Place

Ardmore, PA 19003

Telephone: (610) 649-8200

Facsimile: (610) 649-8362

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ......... ii

INTEREST OF AMICUS CURIAE .......... 1

STATEMENT OF THE CASE ............... 3

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s Immateriality Finding

Cannot Be Reconciled With The Record

Of Battering And Its Effects Manifested

Throughout The Judicial Proceedings In

This Case And Ignores The Significance

Of The Suppressed Evidence In The

Context Of Domestic Violence. ......... 3

A. The Pre-trial Record Reflects That

Gaile Owens Was The Victim Of

Domestic Violence. ................ 5

B. Battering, Its Effects, And The

Materiality Of The Suppressed

Evidence Of Infidelity. ............. 8

C. Battering And Its Effects: The

Rationalization And Denial Of Violence

And The Vital Role Of Independent

a 13

EE 5a doe eH a Ansan cha eka cee ed 21

ll

TABLE OF CITED AUTHORITIES

Page

Cases:

Brady v. Maryland,

yp Bie 15, 18, 21

Cone v. Bell,

__ US. __ , Si ae ae ee 22.0 0 ee 21

DePetris v. Kuykendall,

239 F.3d 1057 Gin Cit 2001) ............... 17

Hernandez v. Asneroft,

S45 Fd G26 Ge Gee Be) nc cc ccc ccc ceee 16

Ibn-Tamas v. United States,

407 A.2d 626 (D.C. 1979) ........ an 6,9, 15

Kyles v. Whitley,

RRR re 8, 21

Owens v. Guida,

549 F3d 399 (6th Cir. 2008) ................ 8

State v. Kelly,

ye Eee 9, 10

United States v. Bagley,

Sie a oa eas swe cscs cecee 18

United States v. Johnson,

956 F:20 84 (6th Cir. 1982) ............206% 10

iit

Cited Authorities

Statutes/Rules:

TENN. CopE ANN. § 39-2-203(h) (1982) ......... 5

Other Authorities:

Angela Browne, The Victim’s Experience:

Pathways to Disclosure, 28 PSYCHOTHERAPY

gs IP RRR erature ye arin tear ene 13, 14, 19

Audrey Rogers, Prosecutorial Use of Expert

Testimony in Domestic Violence Cases: From

Recantation to Refusal to Testify, 8 CoLum. J.

CORE Ge 2s. BE CEO) occ cs cececvnsvisevcs 4

Charles Patrick Ewing & Moss Aubrey, Battered

Woman and Public Opinion: Some Realities

about the Myths, 2 J. FAM. VIOLENCE 257

«BANU er Meare trent serdar Goel ns bey Gh 0X 16

Developments in the Law: Legal Responses to

Domestic Violence, 106 Harv. L. Rev 1498

4, re renee ren rrr a en rg tt cea 16

Judith E. Koons, Gunsmoke and Legal Mirrors:

Women Surviving Intimate Battery and

Deadly Legal Doctrines, 14 J.L. & Pou’y 617

iv

Cited Authorities

Page

Kathleen J. Ferraro & John M. Johnson, How

Women Experience Battering: The Process of

Victimization, 30 Soc. Pross. 325 (1988) ..11, 13, 14

Leslie A. Sackett & Daniel G. Saunders, The

Impact of Different Forms of Psychological

Abuse on Battered Women, 14 VIOLENCE AND

hc. LISS aa Rao err Le Bae pas 12

Liane V. Davis, Beliefs of Service Providers

about Abused Women and Abusing Men, Soc.

WHOM, MEM BOO occ cccccctenssnusen' 17

Margaret E. Johnson, Redefining Harm,

Reimagining Remedies, and Reclaiming

Domestic Violence Law, 42 U.C. Davis L. REv.

PE ok p46 hash ec Sow Chas bbe kee OED ES Li,

Marsha E. Wolf et al., Barriers to Seeking Police

Help for Intimate Partner Violence, i8 J.

PAM: VIOLENCE TSE CRO) 6k csc cc te vaseccecs 19

Mary Ann Dutton & Lisa A. Goodman, Coercion

in Intimate Partner Violence: Towards a New

Conceptualization, 52 Sex Rotrs 743 (2005)

MICHAEL P. JOHNSON, A TypoLocy oF DOMESTIC

VIOLENCE: INTIMATE TERRORISM, VIOLENT

RESISTANCE, AND SITUATIONAL COUPLE VIOLENCE

4, TRUER as te ver arent nenig enter meee me Piereminngr Es 5 ae

Vv

Cited Authorities

RAQUEL KENNEDY BERGEN, WIFE RAPE:

UNDERSTANDING THE RESPONSE OF SURVIVORS

AND SERVICE PROVIDERS (1996) ..............

Richard J. Gelles, Power, Sex, and Violence: The

Case of Marital Rape, 26 THE FAMILY

CU PC EOT ED oc ccccecvvesvevasess

Rita Weingourt, Wife Rape: Barriers to

Identification and Treatment, XXXIX Am. J.

PUUCHIMOMAPY 207 CO) 5 cece scccessees

State v. Kelly: Amicus Briefs, 9 WoMEN’s RTs.

gE ccs ccc ckneuses¥easunases

Sue Osthoff & Holly Maguigan, Explaining

Without Pathologizing: Testimony on

Battering and Its Effects, in CURRENT

CONTROVERSIES ON FAMILY VIOLENCE 225

(Donileen R. Loseke et al. eds., 2005) .......

Page

]

INTEREST OF AMICUS CURIAE'

The National Clearinghouse for the Defense of

Battered Women (NCDBW) works to ensure justice for

battered women charged with crimes, where a history

of abuse is relevant to the woman’s legal claim or

defense. The organization is committed to ensuring that

battered women charged with crimes, like all

defendants, receive the full benefit of all rights and

protections designed to ensure fair trials, accurate

verdicts, and appropriate sentences. To this end,

NCDBW seeks to educate those involved in the criminal

justice system about battering and its effects, so that

the legal decisions affecting battered-women defendants

are not based on misconceptions. NCDBW also

advocates for reforms in existing legal rules and

practices, where needed to ensure fairness for all

accused persons, including battered women.

One misconception about battered women is that, if

abuse is severe or even happened at all, there will be

independent tangible corroboration, such as medical or

hospital records or police reports and restraining orders.

Another misconception is that all abuse is physical

violence. But extensive research has established that

emotional, psychological, and sexual abuse is often the

1. No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to func the preparation or submission of this brief.

No person other than the amicus curiae, or its counsel made a

monetary contribution to its preparation or submission.

Petitioner and respondent have consented to the filing of this

amicus brief; their letters of consent have been filed with the

Clerk of this Court.

2

most prevalent component of the power and control

dynamic that underlies spousal battering, and that a

victim’s disclosure of such abuse, particularly sexual abuse

by a spouse, is both difficult and often avoided at all costs.

At the same time, it is a simple reality that a battered

woman is more likely to be believed when there is

independent tangible corroboration and less likely to be

credited without such evidence.

Based on our experience, NCDBW knows that the

majority opinion can only serve to perpetuate anachronistic

misconceptions about battered women, including that

battering, if true, should readily be subject to independent

corroboration, that battering is primarily manifested as

physical violence, and that a woman should readily be able

to testify about her experience of abuse and expect to be

believed. The majority, while discounting Gaile Owens’

horrific abuse because that abuse was deemed to be

inadequately corroborated by independent evidence, also

discounts the significance of independent tangible

corroboration of one aspect of that abuse — her husband’s

extramarital affair — the existence of which the prosecutor

affirmatively denied.

The majority’s decision thus both perpetuates the

misconception that, if a woman has been battered, there

will be corroboration, and, at the same time, holds

immaterial the independent tangible corroboration of Ms.

Owens’ abuse that the prosecution suppressed at trial. In

so doing, the majority deviated from all prior decisions

construing the Bagley-Kyles “materiality” rule, and

disregarded the significance of independent corroboration

for every criminal defendant, whose credibility is always

called into question by the presumption of a motive to lie.

3

STATEMENT OF THE CASE

NCDBW adopts petitioner’s Statement of the Case.

REASONS FOR GRANTING THE PETITION

THE SIXTH CIRCUIT’S IMMATERIALITY

FINDING CANNOT BE RECONCILED WITH

THE RECORD OF BATTERING AND ITS

EFFECTS MANIFESTED THROUGHOUT

THE JUDICIAL PROCEEDINGS IN THIS

CASE AND IGNORES THE SIGNIFICANCE

OF THE SUPPRESSED EVIDENCE IN THE

CONTEXT OF DOMESTIC VIOLENCE.

“This is not a close case.” Pet. App. 55 (Merritt, J.,

dissenting). Judge Merritt’s conclusion would be

indisputable even if Ms. Owens had not been a victim of

horrendous domestic abuse. But his conclusion’s validity

is emphatically underscored when viewed through the

lens of domestic violence and its consequences. This

brief will thus address battering and its effects, in the

context of Ms. Owens’ trial, but also with an examination

of arange of issues relevant to a battered woman’s legal

defense, as elucidated throughout the judicial

proceedings in this case.’

2. NCDBW uses the phrase “battering and its effects”

rather than “battered woman’s syndrome,” because the latter

term inadequately encompasses battering’s broad range of

characteristics, as well as individual reactions to battering, and

evokes stereotypes of battered women as maladjusted or

disturbed. The majority of cases and commentators, particularly

at the time of Ms. Owens’ trial, use the terminology of “battered

(Cont'd)

4

Ms. Owens’ trial was not only marred by the

prosecution’s deliberate failure to disclose the police

report and the sexually explicit letters between Mr.

Owens and his paramour - the critical suppressed

evidence — but also by the utterly pernicious effect of

that non-disclosure, which tainted the entire pre-trial

and trial proceedings. Even without adverting to the

multitude of issues arising from battering and its

effects, it is at once obvious that Ms. Owens’ trial would

have been remarkably different had the prosecution

disclosed the evidence.

The prosecution — having wrongly, if not deceitfully

— assured Ms. Owens and her counsel that “every single

scintilla of evidence” (CA6 J.A. 111) in its possession had

been divulged and that no letters had been withheld,

presented its case to the jury as the murder of an

“innocent man” (CA6 J.A. 165) by a “desperate woman”

— who was desperate “not because of anyone else’s

actions, but because of her own actions.” CA6 J.A. 151.

The sole motive for the killing, according to the

prosecutor, was to “collect the insurance money. It’s just

that simple” because Ms. Owens was “just... plain no-

good.” CA6 J.A. 152; Tr. 1941. At sentencing, the

prosecutor quipped, “Well, sure she had a problem...

(Cont'd)

woman’s syndrome” and this brief will accordingly use both

phrases. See Audrey Rogers, Prosecutorial Use of Expert

Testimony in Domestic Violence Cases: From Recantation to

Refusal to Testify, 8 CoLuM. J. GENDER & L. 67, 68 n.4 (1998); Sue

Osthoff & Holly Maguigan, Pxplaining Without Pathologizing:

Testimony on Battering and Its Effects, in CURRENT

CONTROVERSIES ON FAMILY VIOLENCE 225 (Donileen R. Loseke

et al. eds., 2005).

5

No, she’s not normal. Normal people don’t go out and

hire somebody to kill their husband.” Tr. 1941.

The Sixth Circuit majority opinion acknowledges the

“longstanding, commonsense belief in our culture that

people who kill their spouses because of infidelity

are not as culpable as other murderers.” Pet. App. 36.

It inexorably follows that the suppressed evidence was

“material,” because its disclosure could readily have

affected Ms. Owens’ sentence, as one or more juror

could well have voted for a life sentence. TENN. CoDE

ANN. § 39-2-208(h) (1982) (one juror’s vote for life results

in a life sentence). But the prejudice to Ms. Owens from

the state’s failure to disclose was far more egregious

when the suppression is examined in the context of the

battering to which she was subjected.

A. THE PRE-TRIAL RECORD REFLECTS THAT

GAILE OWENS WAS THE VICTIM OF

DOMESTIC VIOLENCE.

The record reflects evidence of battering and its

effects on Ms. Owens: (1) before her arrest, Ms. Owens,

when being recorded without her knowledge, said that

she had hired someone to kill her husband because of

“bad marital problems” (Pet. App. 3); (2) at the time of

arrest, Ms. Owens reported “bad marital problems” with

her husband “over the years, and I just felt like he had

been cruel to me,” although “[t]here was very little

physical violence” (Pet. App. 4);* (3) Ms. Owens’ counsel

——- —

3. Ms. Owens’ statement that “there was very little physical

upon which the Sixth Circuit majority seized to

(Cont'd)

”

violence,

6

sought the appointment of an independent mental

health expert “familiar with the characteristics” of the

“battered-wife syndrome,” because “[we] believe and

honestly state to the court that we believe this case has

a meritorious defense in the battered-wife syndrome.”

CA6 J.A. 116, 120. At that same hearing, counsel stated

that they were prepared to present Ms. Owens’

testimony, explaining that they had recently learned

that “the deceased engaged in certain sexual

perversions, to wit, sodomy, fellatio, to the point where

she was required to throw up, to the point where...

her rectum was torn[.]” CA6 J.A. 125, 128.4

(Cont'd)

discount the abuse inflicted upon her, is extremely important

in the context of the domestic-violence case. As is discussed

infra, experts report that “battered women are very reluctant

to tell anyone that their husbands beat them|]” /bn-Tamas v.

United States, 407 A.2d 626, 634 (D.C. 1979), sexual abuse and

rape of one’s wife is often not regarded as physical violence,

even by the victim, see note 8, and emotional and psychological

abuse is often the most persistent, and perceived as the most

damaging, aspect of domestic violence, see discussion infra at

pp. 7-9.

4. The responses of the prosecutor and the trial court are

significant in the context of the domestic-violence case, as the

court asked if there was medical proof and whether Ms. Owens

had sought medical services (CA6 J.A. 125), and the prosecutor

opposed the appointment of a defense expert because “there is

not one scintilla of evidence before this court to show or indicate

the need for this type of examination.” CA6 J.A. 123. As is too

often the case, testimony or evidence from a battered woman

about the battering and its effects was discounted as not

credible. See, e.g., Jbn-Tamas, 407 A.2d at 632-35.

l aod

‘

During competency evaluations by the state’s

mental-health experts, Ms. Owens repeated that she

suffered from an “unhappy marital situation in which

her husband abused her verbally, had affairs, and

humiliated her sexually,” Pet. App. 21; CA6 J.A. 283, and

told another state’s expert, whose handwritten notes

were reproduced as well as possible in the Sixth Circuit’s

majority opinion:

... Never sure Ron loved me... [I] [nleeded

to feel loved — [w]louldn’t be married unless

love. [Ron was?] only affect[tionate?] in bed.

He didn’t think affect[tion] import/ant] but it

_was to me. Last 4-5 yrs. Affairs. Didn’t

[illegible] he didn’t deny. None of my business.

I run house. It built up in me. I felt like

explode. Ask for Di[vorce]. He told me I never

get kids. Beg him for compliments. Couldn’t

cope[,] gained weight. Ask[ed] for him to tell

me I look nice. He say you don’t sweat much

for a fat person. Begged him to tell me what I

do wrong and I change. Waited on him. [Told?]

... No ackn[owledgment?] .. . Couldn’t cope

anymore....°

CA6 J.A. 275; Pet. App. 21-22.

5. Research on forms of emotional and psychological abuse

perpetrated by abusers has identified efforts to convince abused

women that they are “lazy, incompetent, stupid, oversexed,

sexually frigid, bad parents, poor wives — in a word, worthless.”

MicHakt P JOHNSON, A TYPOLOGY OF DOMESTIC VIOLENCE:

INTIMATE TERRORISM, VIOLENT RESISTANCE, AND SITUATIONAL

CoupLe VIOLENCE 15 (2008) (hereinafter TypoLocy or Domestic

VIOLENCE).

8

With this evidence, it is no surprise that defense

counsel advised the trial court that Ms. Owens “had a

meritorious defense in the battered-wife syndrome.”

CA6 J.A. 120. But the record reveals that, at a pre-trial

hearing and in the presence of Ms. Owens, when defense

counsel suggested that there was evidence of abuse, the

court asked for “medical proof” and whether she had

sought “medical services,” to which trial counsel

responded that she only had “her proof.” CA6 J.A. 125;

Pet. App. 53-54.

It cannot be gainsaid that Ms. Owens communicated

to the police, the state’s mental health experts, and to

her counsel that she had suffered abuse — physical,

verbal, psychological and sexual ~ by her husband. Nor

can it be disputed that there was not one word about

abuse at Ms. Owens’ trial or her sentencing. The issue,

then, is the significance of the suppressed evidence in

the context of Ms. Owens’ life as a victim of domestic

violence and the ultimate question is whether there is a

“reasonable probability that there would have been a

different result had the evidence been disclosed.” Owens

v. Guida, 549 F.3d 399, 415 (6th Cir. 2008) (citing Kyles

v. Whitley, 514 U.S. 419, 434 (1995)).

B. BATTERING, ITS EFFECTS, AND THE

MATERIALITY OF THE SUPPRESSED

EVIDENCE OF INFIDELITY.

Battering and its effects have been the subject of

extensive research and study over the past 35 years.

The subject was alread: in the forefront of sociological,

psychological, and jurisprudential study at the time of

Ms. Owens’ trial. Indeed, one year earlier, the New

9

Jersey Supreme Court recognized that the “battered

woman’s syndrome” had been discussed at symposia

since 1977, and that numerous books, articles and

papers “indicate the presence of a growing field of study

and research about the battered woman’s syndrome and

recognition of the syndrome in the scientific field.” State

v. Kelly, 478 A.2d 364, 380 (N.J. 1984). The New Jersey

court, in holding that the battered-woman’s syndrome

was an appropriate subject for expert testimony to

support self-defense in a homicide case, described “a

series of common characteristics that appear in women

who are abused physically and psychologically over an

extended period of time by the dominant male figure in

their lives.” Jd. at 371.

The amicus curiae brief submitted in Kelly by the

American Psychological Association noted that the

“overwhelming majority of courts confronted with the

question of the admissibility of expert testimony of the

battered woman syndrome have accepted such

testimony,” that there was a substantial amount of

literature and law review commentary on the subject,

and that a significant number of respected researchers

had devoted themselves to the field. Brief of Amicus

Curiae American Psychological Association in Support

of Defendant-Petitioner, reprinted in State v. Kelly:

Amicus Briefs, 9 WoMEN’s Rts. L. Rep. 245, 254, 256

(1986) (hereinafter Amicus Briefs). Indeed, the District

of Columbia Court of Appeals, five years earlier, had

observed that the subject of “battered wives” had

“received considerable study.” Jbn-Tamas, 407 A.2d at

638 n.24.

10

An amici curiae brief, submitted in Kelly by the

American Civil Liberties Union of New Jersey and the

New Jersey Coalition for Battered Women, noted that

“[p]rofound psychological abuse also accompanies the

physical abuse” and that “it has been widely accepted

that battered women share common characteristics of

feeling shame for their situation and attempting to hide

their battering from others.” Brief and Appendix of

Amici Curiae American Civil Liberties Union of New

Jersey and the New Jersey Coalition of Battered

Women, reprinted in Amicus Briefs, supra, at 247, 249.°

Particularly significant to Ms. Owens’ case is a study

drawn from data collected during the late 1970s, which

elucidates the malevolent effects of the psychological

abuse that often accompanies domestic violence:

At the interpersonal level, psychological

abuse accompanying violence often invokes

feelings of guilt and shame in the battered

victim. Men define violence as a response to

their wives’ inadequacies or provocations,

which leads battered women to feel that they

have failed. Such character assaults are

6. The courts have come to recognize “battered woman

syndrome” as a “set of psychological and behavioral reactions

exhibited by victims of severe, long-term, domestic physical

and emotional abuse.” United States v. Johnson, 956 F.2d 894,

899 (9th Cir. 1992). This domestic violence erupts in “a

continuing pattern of behavior that includes physical and non-

physical manifestations of power and control.” Judith E. Koons,

Gunsmoke und Legal Mirrors: Women Surviving Intimate

Battery and Deadly Legal Doctrines, 14 J.L. & Pov’y 617, 653-

54 (2006) (hereinafter Gunsmoke and Legal Mirrors) (footnote

omitted).

11

devastating, and create long-lasting feelings

of inferiority ... Psychologists working with

battered women consistently report that self-

confidence wanes over years of ridicule and

criticism.

Kathleen J. Ferraro & John M. Jok» son, How Women

Experience Battering: The Process of Victimization, 30

Soc. Pross. 325, 334 (1983) (hereinafter How Women

Experience Battering).

Before Ms. Owens’ trial, her counsel requested from

the prosecutor all evidence that Mr. Owens “had

numerous girlfriends, extra-marital sexual affairs

involving unusual sexual proclivities and/or

perversions,” because “these proclivities, perversions

and affairs were flaunted and visited upon defendant

with such regularity and in such ways as to contribute

to [her] state of mind and mental condition.” Pet. App.

56; CA6 J.A. 101. The suppressed letters and police

report establish Mr. Owens’ sexual philandering, which

— when considered in the larger context of domestic

abuse — are obvious exemplars of the psychological

violence that he perpetrated. In fact. Drs. Mary Ann

Dutton and Lisa Goodman, in their exploration of

coercion’s role in domestic violence, explain that an

abuser will typically make demands on the abused, and

will subsequently follow up on the demands with a

“credible threat to induce compliance.” Margaret 4.

Johnson, Redefining Harm, Reimagining Remedies,

and Reclaiming Domestic Violence Law, 42 U.C. Davis

L. Rev. 1107, 1118 & n.41 (2009) (citing Mary Ann Dutton

& Lisa A. Goodman, Coercion in Intimate Partner

Violence: Towards a New Conceptualization, 52 Sex

12

Ro.es 748, 748-44 (2005)). One of the “credible threats”

that the authors identified is “having sex with another

person.” Jd. at 1118.

Although the “law often focuses on discrete incidents

of physical violence — the ‘number of hits’ — not the

‘continuum of sexual and verbal abuse, threats, economic

coercion, stalking, and social isolation’ that is the

experiential nature of domestic violence[,]” it is well

known that “[p]hysical violence is simply one aspect of

the injury suffered.” Gunsmoke and Legal Mirrors,

supra, at 653-54. Indeed, for some battered women, it

is “the non-physical abuse, including humiliation and

psychological degradation, [that is] particularly painful”

id. at 654, and thus, battered women have been

reporting for decades “that the violence is not, all of it,

or in some cases not even the worst of it.” TyPoLOGy OF

DoMESTIC VIOLENCE, supra, at 13 (footnote omitted).’

The suppressed evidence is thus significant as one

segment of this couple’s domestic-violence web. But it

is its role as independent corroboration of Ms. Owens’

painful admissions that is most significant in the context

of battering and its effects, and that underscores the

materiality of this “favorable” evidence.

7. A study by Sackett & Saunders in 1999 found that, while

psychological and physical abuse had fairly independent effects

on depression and self-esteem, psychological abuse had a much

stronger impact on the battering victim’s fear than did physical

abuse. “Ridiculing traits, criticizing behavior, and jealous/

control had the strongest relationship to fear.” Leslie A. Sackett

& Daniel G. Saunders, The Impact of Different Forms of

Psychological Abuse on Baitered Women, 14 VIOLENCE AND

Victims 1, 10 (1999).

13

C. BATTERING AND ITS EFFECTS: THE

RATIONALIZATION AND DENIAL OF

VIOLENCE AND THE VITAL ROLE OF

INDEPENDENT CORROBORATION.

All too often, the victims of domestic abuse

rationalize the violence inflicted upon them through

various types of denial. How Women Experience

Battering, supra. Ferraro and Johnson describe

neutralization techniques including the “denial of

injury,” in which battered women may engage because

“the experience of being battered by a spouse is so

discordant with their expectations that they simply

refuse to acknowledge it.” Jd. at 329. While the “denial

of injury does not mean that women feel no pain,” the

hurt is defined as “tolerable” or “normal,” with the result

that these “battered women tolerate a wide range of

physical abuse before defining it as an injurious assault.”

Id.* And Richard Gelles, drawing on studies of marital

violence conducted in 1967, 1974 and 1976, concluded

that “many victims of family violence .. . do not view

these acts as violence... .” Richard J. Gelles, Power,

8. In her poignant 1984 study, M. D. Pagelow “noted that,

although a few women were choked to the point of

unconsciousness during sexual intercourse, they did not define

themselves as having been the victims of sexual violence.”

Angela Browne, The Victim’s Experience: Pathways to

Disclosure, 28 PSYCHOTHERAPY 150, 151 (1991) (citing Pagelow)

(hereinafter The Victim’s Experience). And the concept that a

husband could rape his wife was not codified in most of our

nation’s criminal statutes until the 1990s. RAquEL KENNEDY

BERGEN, WiFE RAPE: UNDERSTANDING THE RESPONSE OF SURVIVORS

AND SERVICE ProvipErRS 150 (1996) (“On July 5, 1993, wife rape

became a crime in all 50 states”).

14

Sex, and Violence: The Case of Marital Rape, 26 THE

FAMILY COORDINATOR 339, 340 (1977).°

Battered women may engage in the “denial of

victimization” because they “blame themselves for the

violence, thereby neutralizing the responsibility of the

spouse.” How Women Experience Battering, supra, at 329.

As Browne explicated, “[flor most individuals, the

experience of victimization also generates negative self-

perceptions,” and the “[aJnticipation of the negative

reactions of others and the potential for further humiliation

makes the decision to disclose even more difficult.” The

Victim’s Experience, supra, at 152 (citations omitted).'°

9. Angela Brewne, of the University of Massachusetts

Medical Center Department of Psychiatry, reported:

In some home environments, abusive behavior has

been so constant a factor that individuals simpiy

define its occurrence as normative and, unless a

contrast is presented, do not consider themselves to

be victims in any unusual sense.

The Victim’s Experience, supra, at 150. Years prior to trial, Ms.

Owens did admit her harsh childhood to a psychiatrist, Pet. App.

32, and years later, conceded the physical, emotional and sexual

abuse to which she was subjected in her family of origin. Pet.

App. 19-20. Although this was largely disputed by her family,

even her sister, who was a Star state witness, did allow that their

father was “too aggressive with discipline[].” Pet. App. 20.

10. Indeed, although the record establishes that Ms. Owens

did inform her counsel of the abuse visited upon her, one of her

attorneys, in an unsuccessful attempt to secure an independent

mental-health expert on battering, noted Ms. Owens’ reticence

to admit the battering to them: “Neither one of us suspected

this in our first several visits with her. It’s only been within the

last week that we found out about all of this perversion and all

this other stuff. We got it from her.” CA6 J.A. 132.

15

It is particularly true where sexual abuse predominates

that, “women are reluctant to seek help out of fear that

they will be blamed for the situation or simply not

believed . . . and work hard to keep the secret.” Rita

Weingourt, Wife Rape: Barriers to Identification and

Treatment, XXXIX Am. J. PSYCHOTHERAPY 187, 192 (1985)

(hereinafter Wife Rape). And more women are “willing

to disclose violence in other areas of the marriage than

to disclose violence of force in sexual relations... [for]

honest disclosure of marital sexual abuse is more difficult

than disclosure of any other form of abuse.” Jd. at 187.!!

Against this backdrop, both Ms. Owens’ attempt to

minimize the violence that her husband had perpetrated

upon her under interrogation by the police and her

subsequent disinclination to testify before the jury may

readily be understood. But most important to the

Brady™ issue is the significance of independent

corroboration, which is important for any criminal

defendant — but particularly so for the victim of a

battering relationship, for whom the shame and guilt,

the fear of not being believed, and the real likelihood

that, absent corroboration and expert testimony, she

will not be believed, are all too often her bitter reality.

See Ibn-Tamas, 407 A.2d at 632-35 (expert testimony

on battering may be admissible to support credibility of

battering victim, because the subject matter may be

11. But it “is a myth that wife rape is less traumatic than

any other rape” for “data that are beginning to emerge

demonstrate that the most upsetting and long-term ill-effects

result from rape by a husband or relative.” Wife Rape, supra, at

188 (footnotes omitted).

12. Brady v. Maryland, 373 U.S. 83 (1963).

16

beyond the ken of the average layperson). And

Congress, in enacting the Violence Against Women Act,

explicitly “recognized that lay understandings of

domestic violence are frequently comprised of ‘myths,

misconceptions, and victim blaming attitudes.’”

Hernandez v. Ashcroft, 345 F.3d 824, 836 (9th Cir. 2003)

(citation omitted).

It is an unfortunate truism that “a prosecutor or

trier of fact may not believe a battered woman’s account

of her relationship with a spouse or companion because

of misconceptions about domestic violence and an

abused woman’s ability to leave the battering

relationship.” Developments in the Law: Legal

Responses to Domestic Violence, 106 Harv. L. Rev 1498,

1580-81 (1993). Studies have suggested that jurors

likewise labor under these same misconceptions, and the

majority of courts have accordingly permitted expert

testimony on battering and its effects. See generally

Charles Patrick Ewing & Moss Aubrey, Battered Woman

and Public Opinion: Some Realities about the Myths,

2 J. FAM. VIOLENCE 257 (1987).

The record in this case is rife with such evidence of

misconceptions about battering and its effects. Before

trial, the suggestion by Ms. Owens’ attorneys that she

might be able to present a “battered wife” defense was

met with the prosecutor’s retort:

There is no proof. No witness has been brought

in here to say, (“]Oh, I knew Mrs. Owens and,

yeah, this guy used to batter her,[”] or [“]she

told me about it and I saw her injuries.[”]

17

There’s no proof before the court, so there is

no basis whatsoever for this motion.

CA6 J.A. 123. Later in that same hearing, when defense

counsel proffered that Ms. Owens had suffered physical

abuse, the court asked if counsel had “medical proof”

and whether she sought “medical services,” CA6 J.A.

125. Counsel responded, “We have her proof.” Jd."

This hearing not only confirms that Ms. Owens’

battering experience would likely not have been

believed absent independent corroboration, but also

could only have served to confirm for Ms. Owens, her

own belief as a battered woman that she would not be

believed absent such corroboration. The significance of

the independent corroboration offered by the

suppressed evidence is patent. See DePetris v.

Kuykendall, 239 F.3d 1057, 1063-64 (9th Cir. 2001) (in

homicide of battering husband, exclusion of husband’s

diary corroborating past violence, albeit not against wife,

13. It is beyond dispute that “most instances of domestic

violence go unreported and undetected.” Liane V. Davis, Beliefs

of Service Providers about Abused Women and Abusing Men,

Soc. Work, May-June 1984, at 243, 248.

14. The Sixth Circuit majority cites this colloquy between

the court and counsel, italicizing “her proof,” meaning only “her

proof,” as “fully consistent with her contemporaneous statement

to the police that ‘there was very little violence.’” Pet. App. 53-

54. This supposition is significant in that, in addition to the trial

court’s request for independent corroboration of Ms. Owens’

battering claim, the majority likewise suggests that her claim

is refuted because it was only supported by her account, an

account that the majority questions because Ms. Owens

reported “very little violence” to the police.

18

was error since it “was not subject to attack on the grounds

of bias or self-interest . . . [and] was the only unbiased

source of corroboration [of wife’s battering claim.]’"®

The majority opinion is a startling example of allegiance

to the misconceptions that still confront a battered

woman today, and perhaps best elucidates the often

ineluctable consequences of being bereft of independent

corroboration. First, the majority seizes upon Ms. Owens’

initial arrest statement describing “a bad marriage over

the years, and I just felt like he had been cruel to me.

There was very little physical violence,” Pet. App. 4, as

undermining her battering defense. Pet. App. 23, 54. Thus,

the majority discounts her later admissions of battering,

without any acknowledgment of the ample research on

battering and its effects that underscores the resultant

15. Indeed, focusing again on the pre-trial proceedings in

this case, the record suggests that Ms. Owens’ own counsel called

into question her credibility absent independent corroboration.

For counsel — even when armed with her statements of her

husband’s infidelity and abuse that triggered the filing of the

Brady motion indicating “a good reason to believe that the

deceased husband... had numerous girlfriends . . . which he

flaunted” and thus requesting correspondence to and from

“lovers” (CA6 J.A. 101) — when advised by the prosecutor that

there was no such evidence, responded, “I certainly accept that

[representation]. I’ve got no reason not to.” CA6 J.A. 115A.

On the materiality question — whether there is a reasonable

probability that had the evidence been disclosed, the result of the

proceeding would have been different — this exchange underscores

what this Court has long recognized, that, “liJn reliance on this

misleading representation [of no such evidence], the defense might

abandon lines of independent investigation, defenses, or tria!

strategies that it otherwise might have pursued.” United States v

Bagley, 473 U.S. 667, 682 (1985).

19

shame and denial, see supra, at pp. 8-12, and that explains

that “[dJisclosure is almost always an ongoing process.”

The Victim’s Experience, supra, at 153; Marsha E. Wolf

et al., Barriers to Seeking Police Help for Intimate Partner

Violence, 18 J. FAM. VIOLENCE 121, 123 (2003) (“In

discussing the types of abuse for which they would seek

police assistance, women felt that they needed to have

“physical evidence” to prove that abuse had occurred.

Emotional abuse, on the other hand, was viewed as a much

grayer area...”).

The majority next subscribes to the misconception

that, if a woman is truly battered, there will be independent

corroborative evidence, and that a woman’s reports of

violence — standing alone — are incredible. The majority

accordingly discounts a post-conviction mental-health

expert’s testimony about horrific abuse” to the extent that

the testimony was based on Ms. Owens’ statements, noting

that she “certainly has a motive to be less than truthful”

and that “it is hearsay from statements that Owens made

after the murder and thus it lacks credibility.” Pet. App.

19, 23 (emphasis by the court). Similarly, the majority

rebuffs the dissent’s discussion of “defense knowledge of

evidence of savage abuse,” because “that evidence rests

wholly on what are said to be Ms. Owens’[] statements at a

pretrial time.” Pet. App. 53.'"

16. Graphic details of the abuse inflicted upon Ms. Owens

are set forth in the dissent. Pet. App. 65-67.

17. Even when independent medical evidence is presented

that corroborates Ms. Owens’ battering horrors, the majority is

disinclined to believe Ms. Owens. Her admission that on the

night before the birth of her second son, her husband forced

(Cont'd)

20

With the majority opinion thus rooted in common

misconceptions of the battering experience and its effects,

it is an appalling irony that the decision, when turning to

the suppressed evidence, finds that, while this suppressed

evidence — the independent corroboration of her husband’s

infidelity — was favorable, it was not material because

Ms. Owens “knew or should have known the essential facts

permitting h[er] to take advantage of any exculpatory

evidence.” Pet. App. 39. The majority, at once utterly

discounting Ms. Owens’ credibility on her battering claim,

nonetheless reaches the completely contradictory holding,

one that is necessarily dependent on Ms. Owens’ credibility:

that she could have testified to the affairs because she

knew of them."

(Cont’d)

her to engage in such brutal sexual intercourse that her placenta

partially detached, requiring an emergency C-section to save her

life and that of her son, Pet. App. 66 (Merritt, J., dissenting), is

conjoined with but not confirmed by another “minor piece[] of

evidence:”

Hospital records show that after the birth of one of

her children, Owens suffered vaginal bleeding

secondary to a fifteen percent partial abruptio

placenta. This is at least consistent with her allegation,

made secondhand ... that her husband sexually abused

her the night before.

Pet. App. 23-24. The majority proceeds to discount this

corroboration: “But it does not prove her claim because the injury

could have happened many other ways. No medical testimony

established even speculative causation.” Pet. App. 24.

18. The majority opinion also suggests that Ms. Owens might

have called her husband’s paramour, because the paramour might

(Cont’d)

21

The persuasiveness of independent corroboration

of any criminal defendant’s defense is a given,

recognized by Brady and its progeny. But the

significance of corroboration is highlighted in the

context of the experiences of battered women, and

underscored by all of the trial and post-trial judicial

processes in Gaile Owens’ case.

CONCLUSION

The suppressed evidence of Ron Owens’ affair “could

reasonably be taken to put the whole case in such a

different light as to undermine confidence in the

[sentencing] verdict.” Cone v. Bell, _ U.S. __, 129

S. Ct. 1769, 1783 (2009) (quoting Kyles, 514 U.S. at 435).

One or more jurors, armed with the whole truth, could

readily have concluded that this was not a case of a

killing of an innocent man for insurance proceeds, but

rather was a desperate act that sadly culminated years

of abuse. The court below grossly misapplied this Court’s

precedent in justifying the petitioner’s capital sentence,

when the jury never heard the full, tragic story before

determining whether a death sentence was warranted.

(Cont'd)

have admitted the affair since she admitted it to the police.

Pet. App. 38. The majority thus overlooks that the paramour’s

admission was made when the police were armed with her sexually-

explicit love letters — the suppressed evidence that this paramour

later sought and the police returned — and that her admission to

the police was unknown to the defense because it was secreted in

the other suppressed evidence — the police report. Pet. App. 38.

22

Respectfully submitted,

KAREN M. GOTTLIEB

Counsel of Record

Post Office Box 1388

Coconut Grove, FL 33233-1388

Telephone: (305) 648-3172

Facsimile: (305) 648-0465

ELLIOT H. SCHERKER

JULISSA RODRIGUEZ

KERRI L. MCNULTY

GREENBERG TRAURIG, PA.

1221 Brickell Avenue

Miami, FL 33131

Telephone: (305) 579-0500

Facsimile: (305) 579-0717

PETER R. GOLDBERGER

50 Rittenhouse Place

Ardmore, PA 190038

Telephone: (610) 649-8200

Facsimile: (610) 649-8362

Attorneys for Amicus Curiae