Keerthi Vedantam

Friday, Jan. 11, 2019

Court says Tucson woman can use battered woman syndrome as defense

WASHINGTON – A federal appeals court ordered a new trial for a Tucson woman, saying she was wrongly denied the chance to present evidence of battered woman syndrome in her defense against weapons charges.

Lashay Marie Lopez did not deny she used her identical twin sister’s ID to illegally buy a gun for a violent former boyfriend. But she said expert testimony about her history of abuse by her stepfather would have proved she was under duress at the time of the crime.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals on Thursday agreed with Lopez and reversed her three convictions, a decision that the panel said puts the circuit in line with most other courts in the country.

Judge Johnnie Rawlinson dissented, saying the lower court was correct to exclude testimony about past abuse that was not committed by the boyfriend who pressured her to commit a crime, but by her stepdad.

“Expert testimony addressing Battered Woman Syndrome must address vulnerability ‘produced by’ the named duressor,” wrote Rawlinson, who said the lower court “absolutely” did not err in excluding the expert’s testimony.

But the majority opinion by Judge Jay Bybee said the testimony on battered woman syndrome would have helped jurors understand why an otherwise-reasonable person did not go to the police.

“Nothing’s in a vacuum, right?” said Cindene Pezzell, legal coordinator at the National Clearinghouse for the Defense of Battered Women. “So when courts are looking at reasonable person standards, they’re looking at a person in the circumstances that the defendant was.

“For someone to really understand the position the battered woman was in, in a lot of cases they’re going to need some expert testimony, because this isn’t necessarily stuff that the average layperson can get their head around,” Pezzell said.

The case began in late 2013 when Hector Karaca was released from prison after serving seven years for a convenience store shooting. Karaca, who had dated Lopez since they were teens, showed up at the Tucson home where she lived with her mother and two sisters, including her twin who had two young children.

Karaca told Lopez he needed a gun because he was on the run from police due to a shooting. She told him she did not know where he could get a gun, and when he asked again two days later she said she could get him a gun because she was on probation herself for a felony drug conviction.

That is when the court said Karaca grabbed Lopez and said if she did not get him a gun he would come back and “shoot up (her) house” and hurt her family. He returned several days later and demanded that she use her sister’s ID to buy a gun from a local pawnshop.

Lopez tried to say she couldn’t get the ID, but Karaca grabbed her again and repeated his threat, the court said, warning that “you don’t want anything to happen to your mom or your sisters.” At that point, she got her sister’s ID and bought the handgun, which Karaca took from her purse as she left the shop.

Two weeks later, Lopez met with her own probation officer and a U.S. marshal who was looking for Karaca. She initially denied knowing him, but admitted to not only knowing him but buying a gun for “my man” after her probation officer found the pawnshop receipt in her purse.

Police later found Karaca, who had stolen a car using the gun Lopez bought and who took his own life after a car chase.

Lopez was charged in late 2014 with making a false statement during the purchase of a firearm, aggravated identity theft and being a felon in possession of a firearm, all felonies. At trial, she admitted to buying the gun with her sister’s ID, but said she was acting under duress.

She tried to offer testimony from Cheryl Karp, an expert on “domestic violence and victim behaviors.” In a later statement to the court, Karp said jurors “did not have the proper knowledge base to understand some of the psychological explanations,” including why battered women remain with abusive men, and why Lopez did not go to police for help.

The trial judge said it was a “pretty close” call, but ultimately refused to let Karp testify. Instead, Lopez testified that her stepfather beat and sexually assaulted her and beat her mother and sisters almost daily, but police rarely took action and the one time they did arrest him he was “out the next day.”

A jury convicted Lopez on all three counts and she was sentenced to 30 months.

The duress defense turns on what a “reasonable person” would do in a similar situation, an objective standard that should be universally applicable. But the appeals court said a defendant’s unique situation should be taken into consideration when determining if that person acted reasonably under duress, and that the expert testimony could have helped Lopez establish that she acted reasonably.

“In other words,” said Teresa Garvey, an attorney adviser for the nonprofit legal group Aequitas, “kind of putting the reasonable person in the shoes of someone who has been through this.”

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