for Battered Women in Michigan:
A Manual for Attorneys, Law Students and Social Workers
In 1998, Jaunita Thomas was the first woman freed via the Clemency project, through a Motion for Relief from Judgment.
(L to R: Carol Jacobsen, Juanita Thomas, Susan Fair, Photo: Susan Gardner)
Susan Fair founded the Michigan Battered Women's Clemency Project in 1991. Volunteer attorneys and advocates joined with her and distributed questionnaires to women in two Michigan prisons. Their aim was to identify women inmates who were convicted of murder and for whom the battered woman syndrome was an explanatory defense, but for whom that evidence was either not raised, raised inadequately, or rejected by the judge. Approximately 50 women were interviewed; 25 were identified as primary candidates for clemency petitions.
In June of 1995, the Michigan Battered Women's Clemency Project became a project of the Justice Committee of the Washtenaw County, Michigan ACLU. Lynn D'Orio, Lore Rogers, and Carol Jacobsen currently coordinate the Clemency Project. Lynn D'Orio is an attorney who began working with the Clemency Project as a law student in 1991. She is a member of the Washtenaw County ACLU. Lore Rogers, an attorney, is Legal Advocacy Director at Domestic Violence Project, Inc/SAFE house and previously served on the State Board of the ACLU. Carol Jacobsen is an artist and independent producer of documentaries on women in prison. She is the Chair of the Justice Committee of the Washtenaw County ACLU.
In March 1995, Lynn D'Orio and Carol Jacobsen filed the first petition for clemency with the Michigan Parole Board on behalf of Violet Allen. In six short weeks, Governor Engler denied the petition with no explanation. The next petition, on behalf of Delores Kapuscinski, was also denied. Four more petitions for clemency were submitted to the Parole Board in April 1998. As of this writing, no decision has been announced on those four petitions.
The Parole Board and the Governor of Michigan have thus far shown little interest in our cause. Their vote-getting "tough on crime" platform comes at the expense of keeping motivated and productive women who pose no threat to society incarcerated into old age at the taxpayer's expense. This is unacceptable.
This manual was written to serve both as an educational tool and as a practical resource to aid in the compiling of successful clemency petitions. We hope it will inspire you to work for the release of battered women, many of whom have spent half their lives as the victims of violent relationships and the other half in prison.
Thank you for your interest in the Clemency Project.
Domestic Violence, The Battered Woman Syndrome, and Women Who Fight Back
A. The Epidemic of Domestic Violence in America
1. The Statistics
• A recent FBI report on crime found that in 1995, 26% of all female murder victims were known to have been killed by husbands or boyfriends.1
• By the most conservative estimate, each year one million women suffer non-fatal violence by an intimate.2
• Between 22% and 25% of all visits by women to emergency rooms are for injuries inflicted by domestic partners.
In the State of Michigan, someone dies as a result of domestic violence every five days.3 The following accounts are excerpted from the Domestic Violence Project's report on "Michigan Domestic and Sexual Homicides: October 1996 to September 1997."4 (The full text of this document can be found in Appendix 2).
Yolanda Bellamy - Age 24. Detroit, MI
August 13, 1997, Yolanda was found dead in her home with 11 gashes across her head and neck. Scattered about her on the living room floor were the bodies of four small children who had also been stabbed and slashed to death. Reco Jones, age 22, Yolanda's ex-boyfriend, has been charged with five counts of homicide.
Lori Fossum - Age unknown. Eaton Rapids, MI
Found dead in the home of her ex-boyfriend July 23, 1997. Lori's parents found her body, and the body of Glenn Glazier still holding a gun. They had become worried about their daughter and were searching for her. She was engaged to another postal worker at the time of her murder.
Helen Howard - Age 47. Grand Rapids, MI
Died June 12, 1997 from a blow to the head. Her boyfriend, Andrew Cummings age 34, thought Helen was hiding his beer. She was on the telephone with one of her adult children when he hit her. She died several hours later. He is charged with involuntary manslaughter.
Lisa Juchemich - Age 31. Iron Mountain,, MI
Died February 5, 1997. After what a newspaper described as a "spat", Lisa Juchemich was stabbed by her husband Roger Juchemich, age 30, and shot in the back as she tried to escape from the house. He then shot and killed himself.
Donna Kay Kuster - Age 32. Marquette, MI
Killed by a single shotgun blast to the abdomen August 25, 1997, by her estranged husband, David E. Kuster, age 43. He sat in his pickup for over an hour waiting for her to return to her car after attending the first day of classes at Northern Michigan University. A Personal Protection Order was found in her purse. It was not enough to protect her from being stalked and murdered.
2. What is Domestic Violence?
Domestic violence is a pattern of abusive behaviors, accompanied by physical or sexual violence or the threat of such violence, used by one person to control his/her current or former intimate partner. The partners may be married or not married, gay or lesbian, living together, separated or dating. The victim of this abuse is referred to as the "survivor", because she in fact engages in many strategies that help her survive the abuse. The partner engaging in the abuse is referred to as the batterer or assailant.
Domestic violence occurs in many forms and at varying degrees of intensity. Some examples of abuse include: emotional abuse through mind games, name-calling, or put-downs; isolation from family or friends; economic abuse by withholding money or being prevented from getting or holding a job; actual or threatened physical harm; sexual assault; stalking; and intimidation.
Domestic violence occurs at about the same rate in gay and lesbian relationships as in heterosexual relationships.5 Victims of same-sex domestic violence may face unique abusive tactics such as the threat of "outing" - that is, revealing the victim's sexual orientation to family, neighbors or co-workers in cases where disclosure may have a negative impact on the victim. Gay male survivors of domestic violence are at greater risk of contracting AIDS.
B. Self Defense and the Battered Woman Syndrome
1. The Origins of Battered Woman Syndrome
In her 1979 book, The Battered Woman, Lenore Walker, a forensic psychologist, identified the essential elements of what has become known as the "battered woman syndrome" (BWS). According to Walker, a battered woman is "a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights."
The BWS essentially refers to characteristics which appear in women who have been physically and psychologically abused by their husbands or partners. Walker described a pattern of cyclical violence.
The typical pattern of violence consists of three recurrent phases of abuse; a tensions building stage, characterized by minor abuse; an acute battering stage, characterized by uncontrollable explosions of brutal violence; and a loving respite stage, characterized by calm and loving behavior of the batterer, coupled with pleas for forgiveness. The continued cycle of violence and contrition results in the battered woman living in a state of learned helplessness...The battered woman lives with constant fear, coupled with a perceived inability to escape. Eventually, she comes to believe that her only options are enduring the abuse, striking back, or committing suicide. 6
Using Walker's analysis, in order to be classified as a battered woman, the woman must go through the battering cycle at least twice. According to Walker's theory, battered women suffer from "learned helplessness", whereby the psychological stress of living in a constant state of fear inhibits her ability to perceive the possibility of escape. She becomes submissive, compliant, passive, and meek. All her energies are focused on avoiding the next attack, and when that has failed, living through it.
2. Expanding and Alternative Views of the Battered Woman Syndrome
Not all researchers, psychologists and commentators accept Walker's conception of the battered woman. Professionals working within the domestic violence field have expressed concern that Walker's theories essentially imply that battered women are mentally ill.7 (See Chapter IV). As well, the concept of learned helplessness may engender stereotypical pictures of a battered woman, which then are used to exclude battered women who perform competently in other areas of life. General acceptance of the concept of learned helplessness may make it difficult to convince a jury that a woman who runs a business or is organized and capable in other areas suffers from the BWS.8
Walker's conception of battered women has been challenged on the ground that it is inapplicable to non-white women.9 According to Sharon Allard's article, Rethinking the Battered Woman Syndrome: A Black Feminist Perspective, "battered woman syndrome relies on prevailing gender characterizations of dominant white society."10 In support of her argument, Allard points to the experiences of Hedda Nussbaum and Geraldine Mitchell, both of whom claimed to have been battered by their companions, and both of whom were charged in the battering death of a child. Charges against Nussbaum, a middle class white woman, were dropped when she agreed to testify against her batterer. Mitchell, a poor black woman, received no such deal. She pled guilty to manslaughter.11
Allard contends that this difference in treatment might be explained by the fact that BWS theory is based on stereotypical behaviors of white women. According to Walker, women experiencing learned helplessness are passive, gentle, submissive, emotional, and dependent. The BWS is of limited usefulness to black women, according to Allard, because of pervasive stereotypes, reinforced by media, that black women are domineering, sexually aggressive, assertive, hostile, immoral, and physically stronger than white women. These images make it difficult for judges and juries to attribute black women's acts of self-defense to "learned helplessness". Allard's argument is further supported by the fact that the ratio of black women to white women convicted of killing their abusive partners is 2:1. 12
Finally, using only the theory of BWS ignores the context of the battered woman's life within which the abuse is occurring. Some have suggested an alternative theory, the survivor theory, which recognizes "that battered women respond to abuse with help-seeking methods that are largely unmet and that women increase their help-seeking as the danger to themselves and their children increases." 13 All too often, the context includes repeated failures by various societal institutions to provide meaningful assistance to survivors, which can lead survivors to believe that they have no recourse but to protect themselves in whatever way they can.
C. When Women Strike Back
1. Facts about Women Who Kill Their Abusers
• Currently, there are approximately 2,000 battered women in America who are serving prison time for defending their lives against their batterers. 14
• As many as 90% of the women in prison today for killing men had been battered by those men. 15
• Women charged with the death of a mate have the least extensive record of any people convicted. 16
• The average prison sentence for men who kill their intimate partners is 2 to 6 years. Women who kill their partners are sentenced, on average, to 15 years. 17 A pair of Maryland cases vividly illustrates this inequality in sentencing. 18 In one case, a judge in Baltimore County, Maryland sentenced Kenneth Peacock to 18 months for killing his unfaithful wife. The very next day, another judge in the same county sentenced Patricia Ann Hawkins to three years in prison for killing her abusive husband. Significantly, the prosecutor in the Peacock case requested a sentence twice as long as the one imposed, while the prosecutor in the Hawkins case requested one-third of the sentence imposed.
2. Systemic Prejudice in Michigan
In 1989, the Michigan Supreme Court's Gender Task Force issued a Final Report on Gender Issues in the Courts. The report concluded that:
• Women defendants who killed abusive partners are treated unfairly by the criminal justice system due to a lack of understanding of the effects of abuse. Specifically, battered women are blamed when they do not leave the relationship.
• Self-defense and the use of expert testimony are not used consistently in defending women who killed abusive partners.
• Evidence of past violent acts is not consistently raised or admitted.
• The instructions that a woman has no duty to retreat from her home in the face of an attack is not consistently given.
A survey of post-1980 cases handled by the Michigan Office of the State Appellate Defender found that Michigan prosecutors consistently overcharge female defendants in victim precipitated homicides. 19 This survey also found that when battered women kill their spouses, judges often refuse to follow appropriate jury instructions and deviate from sentencing guidelines. 20
3. Why Didn't She "Just Leave"?
This frequently asked question has special force when it is directed at a woman who has killed her abusive partner. Prosecutors typically point out that instead of killing her partner, a battered woman could have stayed with family, filed a complaint, gone to a shelter, or called the police. These arguments demonstrate a lack of understanding of the reality of a battered woman's situation. To understand this reality, one must begin with the plight of battered women in a historical context.
According to Sir William Blackstone, when a husband kills his wife, it is comparable to killing a stranger; but when a wife kills her husband, it is comparable to treason by killing the king. 21 In 1874, a North Carolina court became the first court to limit a man's right to beat his wife. Still, that court held that unless he beat her nearly to death, the law should not become involved.
Throughout most of this century, unfortunately, domestic violence has been ignored or openly tolerated by legal actors who have looked upon domestic violence as a family matter. Judicial insensitivity to and disrespect for battered women accounts for some of the failure of the law to protect women. In 1986, a judge in Boston granted a restraining order against a man who allegedly choked and beat his wife. Before granting the order, he told the husband, "You want to gnaw on her and she on you, fine, but let's not do it at the taxpayer's expense." He also reprimanded the wife for "wasting the court's time." The wife was later murdered by her husband. 22
In more recent times, police traditionally turned a blind eye to domestic violence. Some police dislike responding to domestic violence complaints because such situations are often -- and erroneously -- perceived as particularly dangerous for the officer. Police also may feel that making arrests is a waste of time when women decline to press charges. Prior to recent reforms, the responsibility for prosecution was placed on the survivor, despite the fact that prosecution could proceed without her participation, through introduction into evidence of 911 tapes, police testimony, medical records, and other witnesses' accounts. 23
In Michigan, more recent legislation has helped to strengthen the law enforcement response to domestic violence. 24 Legislative reforms and changes in prosecutorial policies have helped to take the responsibility for pressing charges out of the hands of victims. In some cities and counties in Michigan, there are special prosecution units for domestic violence cases. Police are being required to develop preferred arrest policies. Penalties for crimes of domestic violence have increased. 25
Even today, however, there remain systemic impediments to battered women seeking to flee their assailants. For example, in Michigan, a significant number of counties retain practices which commonly discourage prosecution, such as: requiring the victim to sign the complaint, requiring a "cooling off" period, requiring corroboration of the victim's account, and issuing peace bonds. 26 Police officers sometimes fail to prepare reports and collect evidence which would enable the prosecutor to charge and try the batterer without the survivor's participation as a witness. And prosecutors in many counties still routinely dismiss criminal cases at trial when the survivor does not appear, rather than trying those cases with other evidence.
In addition, battered women's shelters are often full to capacity. Personal protection orders are often violated by assailants and not enforced by police or courts. Police in some jurisdictions may not respond to emergency calls, or may not respond in a timely fashion. Assailants routinely are released after arrest on domestic violence charges, given low bonds and without restrictive bond conditions which prohibit their contact with the survivors.
Significantly, "just leaving" is often not an effective solution for the battered woman. Leaving the assailant is not a guarantee that the violence will stop. In fact, the risk of harm is greater at the time the battered woman leaves. A woman is more likely to suffer injury or death at the hands of an abuser after she has left him. 27 However, most battered women do try to leave. On average, a battered woman leaves her assailant 5-7 times before she is able to leave for good.
Gay and lesbian victims of domestic violence may face unique barriers to escaping abusive relationships. The victim may be uncomfortable reporting domestic violence to the police, or obtaining an order of protection against a batterer. Police and other service providers frequently downplay the violence, calling it a "cat fight" if it involves a lesbian couple, or "mutual battering" if it involves a gay male couple. Some domestic violence service providers do not effectively support, advise or advocate for gay and lesbian survivors. 28
Several of the women who were selected by the Michigan Battered Women's Clemency Project were sentenced in the late 1970s and early 1980s when the public was still relatively uninformed about the epidemic of domestic violence. At that time, assaults on women were systematically ignored by police, courts, doctors, and social service agencies. Domestic violence shelters were few and far between. 29 "Just leaving" for these women has never been so easy as some prosecutors suggest.
1. Family Violence Prevention Fund. See: http://www.igc.apc.org/fund/materials/speakup/news197.htm
2. Bureau of Justice Statistics Special Report: "Violence Against Women. Estimates from the Re-Designed Survey" (NCJ-154348)(1995) p.3.
3. Janet Findlater and Dawn Van Hoek. Prosecutors and Domestic Violence: Local Leadership Makes a Difference. 73 Mich. B.J. 908 n.1 (1994).
4. Domestic Violence Project/SAFE House. See: http://Comnet.org/dvp/victims.html
5. New York City Gay and Lesbian Anti-Violence Project. See: http://www.avp.org
6. See People v Wilson, 194 Mich App. 519, 603 (1992).
7. Donald Downs. More Than Victims: Battered Women, the Syndrome Society and the Law. University of Chicago Press: Chicago (199-).
8. Mira Mihajlovich. Does Plight Make Right? The Battered Woman Syndrome, Expert Testimony and the Law of Self-Defense. 62 Ind. L.J. 1253, 1257 (1987).
9. Sharon Allard. Rethinking Battered Woman Syndrome: A Black Feminist Perspective. 1 UCLA Women's L.J. 191 (1991).
10. Id. at 196.
11. Id at 192.
12. Id at 207, n. 19.
13. Mary Ann Dutton. Battered Women's Strategic Response to Violence: The Role of Context. Survivors, Perpetrators, and Their Children, Chapter 7.
14. National Clearinghouse for the Defense of Battered women. See: http://www.cybergrrl.com/planet/dv/stat/statbwkill.html
15. Allison Bass. "Women Far Less Likely to Kill than Men; No One Sure Why." The Boston Globe. February 24, 1992. p.27.
16. Angela Browne. 11 When Battered Women Kill. The Free Press. 1987.
17. National Clearinghouse for the Defense of Battered Women. See: http://www.cybergrrl.com/planet/dv/stat/statbwkill.html
18. Wendy Keller. Disparate Treatment of Spouse Murder Defendants. 6 S.Cal. Rev. L. & Women's Stud. 255 (1996).
19. Dawn Van Hoek. Unpublished manuscript on file at the National Clearinghouse for the Defense of Battered Women.
21. See: Mihajlovich (citing Margolick. "The Trials of Battered Wives Who Kill." Chi. Daily Law Bull. Feb.3, 1944. p.3).
22. See: Keller at 267 (citing Eileen McNamara. "Judge Criticized After Woman's Death." Boston Globe. Sept. 21, 1986 p.1).
23. See: Findlater and Van Hoek, note 3, supra at 908.
24. 1994 PA 64-65.
25. See: Findlater and Van Hoek at 910.
26. See: Findlater and Van Hoek at 910
27. See: discussion of "separation assault" in Chapter X.
28. New York City Gay and Lesbian Anti-Violence Project. See: http://www.avp.org/
29. The first domestic violence shelter in the country opened in 1974.
Introduction to Clemency
A. Clemency Defined
A. Clemency Defined
Clemency is a general term for the power of an executive to intervene in the sentencing of a criminal defendant to prevent injustice from occurring. It is a relief imparted after the justice system has run its course. 30 Clemency provisions exist in every judicial system in the world except China. 31 The U.S. Constitution gives the President the power to grant clemency. In 35 states, the governor can make clemency decisions directly, or exercise this power in conjunction with an advisory board. In five states, boards make clemency decisions, and in 16 states, the power to grant clemency is shared between the governor and an advisory board. 32
Chief Justice William Howard Taft explained why clemency is essential to just government:
Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford remedy it has always been thought essential in popular governments...to vest in some authority other than the courts power to ameliorate or avoid particular criminal judgments. 33
Types of clemency include amnesty, pardon, commutation, and reprieve. Amnesty is granted to a group of people who committed political offenses. A pardon may lessen a defendant's sentence or set it aside altogether. One may be pardoned even before being formally accused or convicted.
While a pardon attempts to restore a person's reputation, a commutation of sentence is a more limited form of clemency. It does not remove the criminal stigma associated with the crime; it merely substitutes a milder sentence. A reprieve postpones a scheduled execution. 34 Women seeking clemency through the Clemency Project usually request a commutation of sentence. Alternatively, or in addition, they may request a pardon if circumstances suggest that they were not guilty of criminal homicide.
B. A Brief History of the Clemency Power in the U.S.
In 1833, U.S. v. Wilson, 32 U.S. 150, 160 (1883) was the first case to discuss the president's pardoning power. In Wilson, Chief Justice Marchall defined pardoning power as an executive "act of grace." 35. In Biddle v. Perovich 36, Justice Homes challenged the Wilson court's understanding of clemency. According to Holmes:
A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. 37
While the "act of grace" rationale for clemency was rejected for a public welfare centered theory, courts continue to interpret the President's pardoning power broadly.
In Ex parte Garland, 71 U.S. 333 (1866), the Supreme Court held that the pardoning power of the president was not subject to legislative control. Though the judicial branch has some power to regulate the exercise of presidential pardon, the executive clemency power is not significantly limited by other branches.
Scrutiny of an executive's reasoning is left to the political process. 38 When Governor Ray Blanton of Tennessee granted 52 clemencies during his final week in office, Senator James Sasser characterized Blanton's act as "the grossest breach of a chief executive's discretionary power perhaps in the history of the State of Tennessee. 39 In 1986, New Mexico's outgoing mayor, Tony Anaya, was harshly criticized when he commuted the sentences of all five death row inmates just before leaving office. 40 Perhaps because of this scrutiny, the use of executive clemency has declined over the last 20 years. 41
C. Clemency for Battered Women Who Kill
Public scrutiny is particularly harsh when governors grant clemency to battered women who killed. According to the National Clearinghouse for the Defense of Battered Women, since 1978, 104 women in 23 states have received clemency. 42 Recent examples include Diane Faye Firtzig of Illinois (1998); June Briand of New Hampshire (1996); and Kimberly Soubielle of Florida (1993). (See Appendix 3 for newspaper articles on recent awards of clemency).
Just before Christmas in 1990, the outgoing governor of Ohio, Richard Celeste, granted clemency to twenty-five women in prison for killing or assaulting their batterers. 43 Thereafter, he was met with an onslaught of media criticism. The Attorney General of Ohio attempted to invalidate the commutations. 44 The head of the Ohio Prosecuting Attorney's Association stated publicly that Celeste's decision to grant clemency would encourage other battered women to kill their abusers. 45 Other critics argued that the grant of clemency to battered women who killed essentially sanctioned their action, putting an implicit approval on a battered woman's right to impose the death penalty on her abuser. Finally, critics accused Governor Celeste of usurping the role of the jury, insensitivity to victims' family members, and undermining the structure of the criminal justice system. 46
2. Is Clemency an Appropriate Remedy?
Clemency is, of course, an imperfect tool for dealing with women who killed their abusers--many of whom should never have gone to jail in the first place. When clemency comes in the form of a commutation, the only result is a reduction in the term of years or a revocation of a death sentence. Also, a woman's ability to receive clemency depends more on the political climate than on her crime and her prison record.
Imperfect or not, clemency is often the only available tool to rectify past failings of the justice system. In response to the backlash following Governor Celeste's grants of clemency, Christine Becker argued:
Many of these arguments against granting clemency for battered women who have killed are convincing, yet they often seem to reflect a vision of what should be, instead of what is. They often ignore the arguments that society is somewhat responsible for the situation of battered women, and that battered women often do not receive fair trials for various reasons...[E]ven while advocating that battered women should turn to various alternative sources for help...most critics recognize that alternatives for battered women are woefully scarce. The response of police and law enforcement officials to battered women often leaves something to be desired, shelters are few and far between, and court restraining orders are a makeshift shield at best, often violated and hard to enforce. 47
Among many other reasons, we need clemency for battered women who killed because:
1. Legal actors' ignorance of battered women's special circumstances negatively impacts a battered woman's ability to receive a fair trial. (See discussion of Michigan Supreme Court's Task Force on Gender Issues in the Courts in Chapter I).
2. Judicial flexibility in sentencing traditionally played a large role in treating battered women who kill justly. The trend toward inflexible sentencing and strict enforcement of criminal sentencing necessitates increased reliance on clemency. 48
3. The "paradigmatic" battered woman--the subject of much expert testimony on the BWS--excludes women who do not fit right racial or economic types.
4. Women who were sentenced in the late 70s or early 80s often had no evidence of the abusive nature of their relationship presented at trial or sentencing.
5. On average, women who kill their intimate partners are sentenced more harshly than men who kill their intimate partners.
D. Considerations for Improving Future Exercises of Clemency: A Comparative Analysis of Different States' Procedures
It is crucial to find ways to keep the public from hardening its collective heart to the grant of clemency to battered women who kill. Public reaction to clemency puts pressure on the governor to make his or her decision accordingly. The decision of one governor to grant clemency may influence another governor's decision to grant clemency to a similarly situated woman. Criticism of the way in which Governor Celeste selected candidates and reviewed women's files has led clemency advocates to call for principled rationales for the exercise of clemency. 49
Joan Krause, author of Of Merciful Justice and Justified Mercy: Commuting the Sentence of Battered Women Who Kill, suggests ways to structure the clemency process so as to succeed with clemency while not alienating the public. 50 Krause critiques several states' clemency procedures, focusing on issues such as criteria for selection of women, the group which performs the review, and the type of information considered.
1. Selection Criteria
States have differing methods for selecting women for consideration. Some of these include:
• Reviewing the records of women convicted of violent crimes against spouses or companions who abused them
• Reviewing the records of women who could have presented evidence of domestic violence at trial
• Requiring inmate to initiate the process
• Requiring an advocacy group to recommend candidates
• Sending all inmates notice about requirements for eligibility for clemency and
• leaving it to them to choose to submit their own petitions. 51
Governor Celeste selected the first of these alternatives. Krause expressed concern that such a method, while reaching a large number of women, may promote the release of women based on inaccurate and culturally biased stereotypes, particularly when the decision makers have no prior experience with battered women. 52 On the other end of the spectrum, relying on inmates to submit petitions on their own may deter deserving women from applying.
2. Who Should Review the Petitions?
The reviewing body also differs from state to state. In Ohio, the Department of Corrections review clemency applications. In Massachusetts, the Advisory Board of Pardons does so. In Maryland, information about battered women in prison is reviewed and presented to the Governor and Parole Board by two outside advisory groups. The Governor of Maryland was widely criticized for relying so heavily on outside groups who were deemed prejudiced in favor of clemency. Although expertise of advocacy groups is essential in the process, advocates for clemency suggest that it may be politically unwise to have too much expert involvement in the review of clemency petitions. 53
3. What information Should be Reviewed?
Most of the media backlash following Celeste's clemency awards centered on the kind of information which critics felt should--and should not--inform the decision to grant clemency. Governor Shaefer of Maryland was criticized for not reviewing trial transcripts and not notifying victims' relatives, prosecuting attorneys and trial judges. 54 In most states, clemency provisions require notification of both prosecuting attorney and sentencing judge. Many states require notification of the impending decision to grant clemency in local newspapers. Krause suggests that including family members and prosecutors in the clemency process may make clemency more politically palatable. 55 Finally, Krause suggests that acts of clemency might not incur such harsh criticism if governors provided reasoned explanations of their decisions to grant or deny clemency. 56
30. Allison Madden. Clemency for Battered women Who Kill Their Abusers: Finding a Just Forum. 4 Hastings women's L.J. 1, 50 (1993).
32. Christine Noelle Becker. Clemency for Killers? Pardoning Battered Women Who Strike Back. 29 Loy.L.A.L.Rev. 297, 307 (1995).
33. Linda Ammons. Discretionary Justice: A Legal and Policy Analysis of a Governor's Use of the Clemency Power in the Cases of Incarcerated Battered Women. 3 J.L.& Pol'y 1, 30 (1994).
34. There is currently no death penalty in Michigan.
35 See: Becker at 308.
36. Biddle v. Perovich, 274 U.S. 480, 486 (1927).
38. See: Ammons at 29.
39. See id. at 51.
40 See id.
41. See Becker at 310.
42 Husband Killer Pardoned in N.H. U.P.I. December 4, 1996.
43. Joan Krause. Of Merciful Justice and Justified Mercy: Commuting the Sentences of Battered Women who Kill. 46 Fla. L. Rev. 699, 703 (1994).
44. See: id. at 336
45 See: id. at 332.
46. See: id.
47. See: Becker at 333-34.
48. See: Becker at 311.
49. See: id. at 320.
50. See: Krause at note 42, supra.
51. See: Krause at 765-66.
53. See: Madden, note 30, supra.
54. See: Krause, note 42, supra at 769.
Clemency in Michigan
The power to grant commutation rests solely with the Governor. Const. 1963 art. 5 & 14. In Michigan, the Parole Board receives clemency applications, conducts public hearings, and makes formal recommendations to the Governor. The Governor has the power to grant a commutation for any sentence except treason. Commutation is the only release from prison for a person with a non-parolable life sentence. If commutation is granted, a life sentence is first commuted to a term of years. Then the prisoner is paroled from that sentence. 57
Grants of commutation have been rare indeed in Michigan in the last decade. While in the mid-1960s, Governor Romney commuted the sentences of 107 inmates. Twenty years later, Governor Blanchard granted only six commutations -- all but one just before he left office. Governor Engler has granted just five commutations since 1990.
B. The "Citizens'" Parole Board
One would like to think that a battered woman's petition for clemency would be approved or denied according to the merits of the woman's case and her prison record. Unfortunately, in Michigan, as elsewhere, it is the composition of the Parole Board and the occurrence of high profile crimes by recent parolees which ultimately determines whether a petitioner is released.
The current Michigan Parole Board has shown itself to be extremely unsympathetic not only to women seeking clemency, but to many prisoners seeking parole. In the late 1980s and early 1990s, about two-thirds of Michigan prisoners who applied for parole were released. 58 In 1995, the Parole Board approved only about half of the appeals it heard. 59 The Parole Board's reluctance to grant parole is causing the Michigan prison population to soar, even when the number of incoming inmates is declining.
Between 1985 and 1995, Michigan's prison population has skyrocketed from 17,744 to 41,112. 60 A report to the Michigan Sentencing Commission states that if the Board continues these parole practices, the prison population will reach 65,000 by the year 2007. That is an increase of 20,000 in ten years. 61
Tight Parole Board control has caused a drastic increase in prison population for two reasons:
1. Michigan's indeterminate sentencing policy allows the Parole Board great power over a prisoner's out-date. 62 Under an indeterminate sentencing system, a sentencing judge gives prisoners a minimum term proportional to the crime committed. The Parole Board then sets the exact amount of time to be served according to post-sentencing factors. The current Parole Board does not assume that the prisoner should be released at the end of the minimum sentence.
2. The current Parole Board revokes parole for minor and technical violations of parole conditions. Critics contend that while the Parole Board's function should be to assess whether a person poses a danger to society, it has, in fact, become a re-sentencing court. 63 This re-sentencing function is especially dangerous since prisoners do not have a right to counsel or to dispute inaccurate information at their hearing.
The Parole Board's reluctance to grant clemency or parole can be traced to an incident in 1992 in which a parolee committed a series of rape-murders. 64 The ensuing public outrage led to formation of a "law and order" Parole Board.
From 1976 to 1992, Parole Board members all had corrections experience and civil service protection. 65 Following the 1992 incident, the Board was stripped of its civil service protection and completely reconstituted. Today, the Director of the Department of Corrections appoints Parole Board members. Stature requires that at least four members have no prior Department of Corrections employment. Thus, the Parole Board has gone "from a professional Board with corrections experience to a 'citizens' board not required to have any experience with prisons or prisoners." 66 (See appendix 7 for an up-to-date list of Parole Board members.) Because the Parole Board may be held politically accountable for the actions of parolees, it may deny parole or clemency to any controversial candidate.
C. Statutory Provisions 67
1. Criteria for Making a Determination
Currently, the Parole Board does not rely on written guidelines in evaluating a prisoner for commutation purposes. 68 The MDOC once used commutation grid scores to determine the number of years a prisoner should serve before it would make a positive recommendation. 69 In 1987, however, the MDOC rescinded this policy. Since then, the Board has considered petitions on a case-by-case basis. To determine priority areas of Parole Board concern, you might look at parole guidelines. 70 When deciding whether to grant parole the Board considers factors such as: the offense for which the prisoner is incarcerated; the prisoner's institutional program; the prisoner's institutional conduct; the prisoner's prior criminal record; the prisoner's statistical risk screening; and the prisoner's age. 71
2. Composition of the Parole Board
M.C.L.A. § 791.23 (1)(a) mandates that the Parole Board shall consist of ten members appointed by the Director of MDOC. Members may not be within the state civil service. Members are appointed to terms of four, three, or two years. A member may be re-appointed.
Procedure for application, interviews, review, investigation, and public hearing are set forth in M.C.L.A.. § 791.244. (See Appendix 6.) A brief summary follows:
1. One member of the Parole Board should automatically interview a prisoner serving a non-parolable life sentence after ten years. 72 Subsequent interviews will be conducted as deemed appropriate by the Board, but not later than every five years until which time as the prisoner is granted a reprieve, commutation, or pardon by the Governor, or is deceased. 73 PLEASE NOTE: Senate bill 873, proposed on February 10, 1998 would eliminate the "every five year" requirement and leave all the interviews after the initial ten year interview up to the discretion of the Parole Board.
Alternatively, an inmate may initiate the clemency process by submitting a written petition to the Parole Board containing the information required by R 791.7760. (See Appendix 5.) Applications for pardons, reprieves, and commutations must be filed with the Parole Board on forms provided therefor by the Parole Board. 74 (See Appendix 1 for application form).
2. Not more than 60 days after receipt of an application the Parole Board must conduct a review to determine whether the petition has merit. 75 The Board will deliver to the Governor either written documentation of initiation or the prisoner's original application with the Parole Boards' decision, pending an investigation and hearing. Favorable action requires a majority vote by the entire Board.
3. If there is a favorable vote, the Board member who initiated interest in the prisoner requests a PER, a psychological report, and a medical report. 76 If that member decides to proceed, within ten days the Board will send a lifer survey report to the sentencing court and prosecuting attorney for comment. 77 The sentencing judge and the prosecuting attorney, or their successors in office, have 30 days to file information at their disposal or objections, in writing.
4. Within 270 days after receipt of an application that the Parole Board has determined to have merit, the Board will make a full investigation and determination on whether to proceed to a public hearing.
5. Not later than 90 days after making a decision to proceed, a public hearing will be held. At least 30 days before the public hearing, the Parole Board will provide written notice of the hearing by mail to the Attorney General, the sentencing trial judge, the prosecuting attorney or his successor, and each victim who requests notice pursuant to the Crime Victim's Rights Act. 78
6. The hearing will be conducted by one member of the Parole Board. The public is represented by the Attorney General or a member of the Attorney General's staff.
7. The applicant has a right to be present, to testify, and to be represented by counsel. The amended statute provides a victim the opportunity to address and be questioned by the Parole Board at the hearing or to submit written testimony for the hearing. 79 In hearing testimony, the Parole Board shall give liberal construction to any technical rules of evidence. 80
8. In the event that the Board approves a recommendation by a majority vote, the Board will send its formal recommendation, along with a transcript of the hearing and a summary of the case to the Governor. 81 If granted, the Governor will sign a commutation of sentence.
57. Sandra Girard. 175 Michigan Prison Sentences: A Guide for Defense Attorneys. Michigan Appellate Assigned Counsel System: Lansing (1996).
58. Edward Walsh. "Growing Graying Inmate Population Taxing Prisons." The Washington Post. July 5, 1996 p. A01.
60. Stuart Friedman. "Michigan Parole Board: A Smoldering Volcano." 77 Michigan Bar Journal. No. 22.
65. See: Girard at 152.
66. See: Friedman at 184.
67. See: Appendix 6 for relevant statutory law.
68. See: Girard at 175.
69. Id. at 175 n. 90.
70. See M.C.L.A. § 791.233.
72. See: M.C.L.A. § 791.244
73. The previous rule provided for interview at the conclusion of five years, and every two years thereafter.
74. See: M.C.L.A. § 791.243.
75. See: M.C.L.A. § 791.244(a).
76. See: 791.244(2)(d) for special provisions where commutation is based on physical or mental incapacity.
77. See: M.C.L.A. § 791.244(c).
78. The provision requiring notice to victims' families was added as part of the 1992 amendment.
79. See: M.C.L.A. § 791.244(h).
80. See: M.C.L.A. § 791.244(2)(h).
81. See: M.C.L.A. § 791.244(i).
Theories of Defense: Excuse v. Justification
A. The Excuse Defense
Theories of Defense: Excuse v. Justification
Excuse and justification are theories of defense employed to convince a trier of fact that a defendant lacked criminal responsibility for her actions. A defendant who employs an excuse defense admits that the offense she committed was a crime, but submits that factors peculiar to her situation should prevent a judgment of criminal responsibility. Examples of an excuse defense include temporary insanity and diminished capacity. A defendant who employs a justification defense attempts to show that her action was not a crime at all; rather, it was justified under the circumstances to avoid greater harm or to further important societal interests.
A. The Excuse Defense
Before 1980, lawyers defending battered women who killed their spouses typically employed an excuse theory of defense. In 1977, a 29 year old housewife, Francine Hughes, was charged with first degree murder for killing her abusive husband. 82 After enduring thirteen years of vicious beatings, death threats, intimidation, and humiliation, Ms. Hughes set fire to the bed in which her husband was sleeping. For years before the murder, Ms. Hughes tried to escape from her husband without success. She actively sought help from lawyers, judges, social service agencies, and the police, all to no avail. Had she not killed her husband, it seems probable that she would have died at his hands.
Ms. Hughes' defense counsel believed that a self-defense claim would be legally infirm because self-defense is defined as occurring in the presence of imminent danger. 83 Ms. Hughes fought back at a moment when her husband was sleeping. At the time, Ms. Hughes' lawyer could not find a single precedent for an argument for self-defense in a case in which a woman killed her abuser in a non-confrontational situation. 84
Instead of relying on a self-defense claim, Ms. Hughes utilized an excuse defense--she claimed she had been temporarily insane when she killed her husband. An expert testified that she was "overwhelmed by the massive onslaughts of her most primitive emotions." 85 In this case, temporary insanity was a successful defense. Ms. Hughes was found "not guilty."
Although the temporary insanity defense produced a just result in the Hughes case, it has lost favor for several reasons. First, temporary insanity is a perilous defense. A defendant acquitted because of temporary insanity goes free. But a defendant found "guilty but mentally ill" faces the same term in prison as a sane person.
A second flaw in the excuse defense is that it presumes that a battered woman suffers from a mental defect. Recent psychological and scholarly literature argues that, in fact, battered women who kill their abusive partners behave as would any reasonable, sane person in their situation.
B. The Effect of An Enhanced Understanding of Spousal Abuse on Theories of Defense
Studies on (1) similarities between the Stockholm syndrome and the BWS and (2) the phenomenon of "separation assault" have led to widespread rejection of the belief that battered women suffer from mental defect.
1. Similarities between the BWS and Stockholm Syndrome
Studies of similarities between the BWS and the Stockholm Syndrome support a feminist analysis of the BWS. 86 The Stockholm Syndrome is a psychological theory which attempts to explain why a hostage bonds with her captor. Four conditions give rise to the development of the Stockholm Syndrome 87:
a. A captor threatens to kill a person, and is perceived as having the ability to do so.
b. The person cannot escape, so her life depends on the captor.
c. The person is isolated from outsiders.
d. The captor is perceived as showing some degree of kindness to the person.
The Stockholm Syndrome describes a group of behaviors which develop in response to a threat to survival posed by a captor. Hostages develop survival rather than escape skills because they see opportunities to escape as too dangerous to pursue. 88 Because escape seems impossible, hostages respond to their situation by becoming highly attuned to the pleasures and displeasure of the captor. They cope with a continuous and immediate threat of death by adopting their captor's world view and assuming submissive postures. Other behaviors attributable to the Stockholm Syndrome include:
•Victim denies anger at abuser and focuses on abuser's good qualities.
•Victim's "fight or flight" reactions are inhibited.
•Victim fears interference by authorities.
•Victim feels overwhelmingly grateful to the abuser for having spared her life.
•Victim fears that even though captor is jailed, he will return to capture her again.
Research on the Stockholm Syndrome suggests that the behaviors characteristic of battered women are not pathological or masochistic, but are what we would expect from an individual in a life threatening captor/captive situation. In support of this conclusion, Graham et al. cite the fact that lower income women who continue to live with partners because they have no financial resources reported more partner bonding. 89 In other words, women who are realistically the most unable to escape rationally perceive the impossibility of their situation and reasonably respond to it in the only way possible: by nurturing an emotional bond with the batterer.
Graham et al. also found that women who separated from partners but returned because their partner located them, or because he threatened to kill them, showed more partner bonding. 90 Thus, the degree of "traumatic bonding" is rationally related to the degree to which a woman feels her life is in danger.
Despite the fact that battered women and hostages exhibit shared psychological responses to a similar experience, popular opinion condemns battered women who bond to their partners as masochistic, while sympathizing with hostages who bond to their captors. The media treats hostage situations as high drama, while a battered woman's plight is considered a private family affair. Outsiders are more likely to negotiate and win the release of hostages. Outsiders are often reluctant to involve themselves when a battered woman asks for help. 91
2. Separation Assault
Traumatic bonding may not be the only reason that a battered woman is reluctant to leave her abuser. She may have a perfectly reasonable belief that if she leaves, he will track her down and harm her or kill her.
Law enforcement experts agree that leaving an abuser greatly increases the danger a woman faces. 92 According to the Bureau of Justice Statistics, in 1994, women separated from their husbands had a violent victimization rate of 128 per 1,000.
Orders of protection and pressing criminal charges are not always sufficient to protect a battered woman when her batterer, recognizing his loss of power and control, comes after her. As is clear from the following incidents, some batterers will go to any length to hurt their former partners 93:
•Patricia Kastle, an Olympic skier, was shot by her former husband notwithstanding a protection order forbidding him from coming near her.
•For eight years, Lisa Bianco of Indiana feared the day her husband would be released from prison. When prison officials granted her husband an eight-hour pass, he drove directly to her home, broke in, and beat her to death with the butt of a shotgun.
•Shirley Lowery, a grandmother of 11, was in the hallway of the courthouse where she had gone to get an order of protection when her former boyfriend stabbed her 19 times with a butcher knife.
Martha Mahoney coined the term "separation assault" to focus attention on the empirical evidence of the harm that comes to women who try to leave their abusers. 94 According to Mahoney, battered women in the legal system suffer from legal actors' misconceptions about the reasons battered women stay in abusive relationships. Recognition of the prevalence of separation assault supports the fact that a battered woman acting in self-defense is acting according to a rational perception of danger.
Given the modern view that battered women who kill their spouses are not insane, but rather acting rationally in an effort to defend themselves, the excuse theory of defense is employed less often than it used to be.
3. Does the BWS Support and Excuse or a Justification Defense Where a Battered Woman Kills?
At first glance, the theory that battered women experience traumatic bonding would seem inconsistent when applied to a battered woman who killed. Some critics of using the BWS argue that there is an "inherent inconsistency of describing the battered woman's unhealthy mental state to show the reasonableness of her belief of imminent danger." 95 In her article arguing against admissibility of expert testimony on the BWS, Mira Mihajlovich states that a battered woman's "learned helplessness" necessarily blurs her ability to form rational beliefs about when she is in imminent danger.
Statutory and case law have also misconstrued the BWS as evidence in support of an excuse defense. For example, Missouri law has procedurally equated the BWS with an insanity plea by providing that a defendant who seeks to introduce evidence on the BWS must submit to an exam by a court appointed psychologist or psychiatrist. 96 In addition, appellate opinions have characterized battered women as psychologically disturbed. 97
"Learned helplessness" is misinterpreted when it is defined as a mental defect or character flaw. The whole point of learned helplessness as a psychological theory is to remove the stigma of mental defect from the battered woman by emphasizing that the behaviors associated with it developed as an adaptive survival mechanism in response to abuse.
Angela Browne, author of Assault and Homicide at Home: When Battered Women Kill, explains that there is no inconsistency between learned helplessness and a battered woman who kills--that a battered woman ceases to practice the survival skills characterized by the Stockholm Syndrome when she endures an act of violence which is significantly above the normal range of violence she has previously experienced. A woman who kills her batterer often does so only when she thinks it is impossible to survive the next episode of abuse, or when the batterer escalates or threatens escalation of violence towards a child. Thus, the theory that battered women, like hostages, may experience traumatic bonding is consistent with the fact that some battered women ultimately kill their abusers in defense of their lives.
C. The Justification Defense
Today, a lawyer defending a woman in Francine Hughes' position would probably employ a justification defense. There is a common myth that most battered women kill while their husbands are asleep, or during a lull in the violence. Actually, about 70% of battered women who kill their batterers do so during a confrontation with the batterer. 98 Thus, the trend toward a justification theory of defense is an appropriate one.
Use of a justification defense is still not without its problems, however. Legal scholars engage in hot debate over whether existing definitions of self-defense can accommodate battered women who kill their spouses.
In determining whether a defendant acted in self-defense, a trier of facts considers issues such as: (1) whether the defendant reasonably feared that she needed to use force to defend herself; (2) whether the threat to the defendant was imminent; (3) whether the defendant met the threat with excessive force; and (4) whether the defendant had a duty to retreat.
Some critics charge that battered women, like Francine Hughes, who killed their abusive partners in a non-confrontational situation cannot get a fair trial under existing definitions of self defense. For example, Cynthia Gillespie, author of Justifiable Homicide, asserts that because self-defense jurisprudence requires a threat to be imminent, a woman who kills her batterer while he is sleeping is prevented from utilizing the defense. 99 Specifically, Gillespie argues that under self-defense law strictly applied, a woman is not allowed to fight back with a weapon until her batterer actually beats her severely enough to make it clear that death or great bodily harm is imminent. Of course, by that time, she would be rendered helpless.
Critics of self-defense laws as they apply to battered women who kill also contend that traditional principles of self-defense jurisprudence are based on two men of equal strength who have never met, and that traditional principles do not consider the problems posed by combatants of vastly different size and strength. Scholars who see existing definitions as hurting women's ability to receive a fair trial propose modification of definitions of "imminence," expansion of the reasonable person doctrine to include the "reasonable battered woman, " and elimination of duty to retreat.
Other scholars argue that existing self-defense doctrines can, in principle, accommodate battered women who kill their spouses. 100 According to Professor Holly Maguigan, existing self-defense law is adequate if trial judges properly apply the laws to battered women who kill. Maguigan argues that the requirement that the threat to a defendant be imminent before she act in self-defense is not so limited that it prevent consideration of the woman's circumstances. Rather, a jury can and will consider the imminence requirement fulfilled when, for example, a woman kills her batterer with an honest and reasonable belief that the moment he wakes up he will kill her, and if she waits she will be powerless to defend herself. Thus, Magiugan argues, existing definitions can accommodate the self-defense claim for battered women.
D. The Self-Defense Instruction in Michigan
The Michigan self-defense instruction is a hybrid of the subjective and the objective reasonable person standards. (See Appendix 8). According to the subjective standard, a woman is justified in using deadly force if she honestly believes it is necessary to prevent death or great bodily harm. According to an objective standard, the fact finder asks whether a reasonable person would believe it necessary to use force to protect herself. The Michigan instruction requires that a woman's belief be "honest and reasonable," but also directs the jury to consider "all the circumstances as they appeared to the defendant at the time." 101 The Michigan instruction makes no provision for the special circumstance of battered women with regard to the requirement that she believe her acts are " immediately necessary.".
Most of the danger of injustice to battered women comes from application of the self-defense instruction. For example, the instruction says that a person must not kill to protect herself from minor injury. In determining the degree to which the injury the woman faced at the hands of her batterer was minor, a judge or jury may or may not know that abused women are exquisitely attuned to subtle actions, movements, and threats by a batterer. An action on the part of the deceased batterer which might seem minor to the judge may, because of the victim's prior conduct, alert the woman that there is much worse harm to come. Subtle actions which may not signify danger to an outsider may be known to a woman as a sign that she is in great danger. Some courts have recognized these unique perceptive abilities among survivors of battering. 102
Also, in Michigan, the self-defense instruction asks the jury to consider, in the course of evaluating the woman's reasonable belief, whether the deceased batterer was armed with a dangerous weapon. This instruction may prejudice battered women because batterers are often armed with potentially lethal objects which are not considered deadly weapons. Research and common sense dictate that even non-lethal objects like fists, keys, books, bottles, hot food, or ashtrays can be very threathening--especially when the person wielding the object is significantly bigger and stronger. 103
82. Faith McNulty. The Burning Bed 198-.
83. See: id at 199.
85. See: id. at 255
86. See, e.g., Graham et al. Survivors of Terror: Battered Women, Hostages, and the Stockholm Syndrome. Feminist Perspectives on Wife Abuse. Eds. Yllo and Bograd. SAGE Publications (1988); Graham and Rawlings. Bonding With Abusive Dating Partners: Dynamics of Stockholm Syndrome. Dating Violence: Young Women in Danger. Ed. Levey. Seal Press (1991).
87. See: Graham et al. at 219.
88. See: id. at 224
90. Id. at 30
92. Nancy Gibbs. "'Til Death Do Us Part: When a Woman Kills An Abusive Partner, Is It an Act of Revenge or of Self Defense?" Time. January 18, 1993. p.38.
94. Martha R. Mahoney. Legal Images of Battered Women: Redefining the Issue of Separation. 90 Mich L.Rev. 6(1991).
95. See: Mihajlovich at 1276.
96. Battered Women Who Kill Their Abusers. 106 Harv L.R. 1574, 1586 (1993).
98. Holly Maguigan. Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals. 140 U.Pa.L.Rev. 379 (1991).
99. Cynthia Gillespie. Justifiable Homicide. Ohio State University: Columbus. 1989.
100. See: Maguigan at note 95, supra.
101. See: § 7.17 Michigan Standard Jury Instructions
102. See: People v. Torres, 488 N.Y.2d 358, 362 (1985); State v. Allery, 682 P.2d 312, 314-316 (Wa. 1984);Ibn-Tamas v. U.S., 407 A.2d 626, 634-39 (D.C. 1979).
103. See: Brief of Amici in Support of Tanicca Henry's Appeal for Leave to the Michigan Supreme Court (citing Gillespie at 52-53).
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Admissibility of Expert Testimony on the Battered Woman Syndrome
In 1992, the Michigan Court of Appeals held that expert testimony on the BWS is admissible in cases where domestic violence was a factor in the commission of an offense. 104 (See Appendix 11). Wilson was subsequently limited in 1995 by People v. Christel, 449 Mich. App. 578, 537 N.W. 2d 194 (1995).
In People v. Wilson, the defendant shot her husband while he slept. She claimed, however, that she shot him in self-defense in response to forty-eight hours of abuse and death threats, and years of battery. The Wilson court held that expert testimony on the BWS is necessary to give the trier of fact a better understanding of the evidence--especially in light of the fact that the average juror is unaware or misinformed about certain characteristic behaviors of battered women. In its opinion, the court included a description of the cycle of domestic violence and its effects on the psyche of the battered woman. 105 The Wilson court stated that expert testimony on the BWS should be limited to an explanation of symptoms and a general description of the syndrome. Wilson forbids experts from expressing an opinion about whether the defendant in a particular case suffered from the BWS or acted pursuant to it. In addition, the court held that an expert could not testify that the defendant's allegations of battery were, in fact, truthful.
In 1995, the court in People v. Christel limited the admissibility of expert testimony on the BWS in a case where the battered woman was a witness (not a defendant) against her assailant. 106 The court in Christel acknowledged that expert testimony on the BWS is relevant when needed to explain a complainant's actions--such as prolonged endurance of physical abuse, delays in reporting abuse, or recanting allegations of abuse. However, the court held that expert testimony on the BWS is admissible "only when it is relevant and helpful to the jury in evaluating a complainant's credibility." (emphasis added).
In Christel, the defendant was charged with criminal sexual conduct and sentenced to fifteen to twenty-five years for breaking into his ex-girlfriend's house and raping her. During cross-examination, the defense attempted to portray the complainant as a liar. To rebut some of these claims, the prosecution called an expert to testify on the BWS. The court held that admission of expert testimony was error where the complainant did not remain in the abusive relationship, did not try to hide the abuse, and did not delay in reporting the incident. The court stated: "Expert testimony usually is not needed to explain alternative prosecution theories, but to explain things not readily comprehensible to the average juror."
The Christel decision will probably not have a limiting effect on the trials of battered women who kill their partners because in these cases the woman's credibility (specifically her reasonable belief that she was acting in self-defense) is very much at issue.
B. Admissibility in Other States
The vast majority of states allow expert testimony on the BWS in support of battered women's defense claims. 107 Such testimony is most readily accepted in cases involving traditional self-defense situations. Still, expert testimony has also been admitted in a number of state courts in non-traditional self-defense situation, such as when a battered woman kills her sleeping abuser (accepted by 29% of the states ) or when she hires someone to kill her abuser (accepted by 20% of the states). 108 In about 25% of states, experts can give an opinion on whether the defendant acted in self-defense. Most states do not allow an expert to testify on whether the defendant's belief that she was in imminent danger was reasonable. 109
2. Statutory Law
Since 1990, nine states have enacted legislation to provide for admissibility of expert testimony on the battered woman syndrome. 110 In 1991, the Texas legislature amended the evidence section of the Texas Penal Code to require courts to admit expert testimony if the woman is trying to establish that use of deadly force was imminently necessary. 111 According to the amendment, the woman "shall be permitted to offer" (1) relevant evidence that the defendant had been the victim of acts of family violence committed by the deceased (2) relevant expert testimony regarding the condition of the defendant's mind at the time of the offense.
Some states, like California and Ohio, have enacted legislation to preclude attacks on admissibility by declaring the the BWS is scientifically valid. 112 Maryland has gone so far as to admit evidence of the BWS "notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense." 113
C. Admissibility: Pro and Contra
When a battered woman is accused of killing her assailant, the degree to which expert testimony should be admissible to show her state of mind is a subject of some controversy yet today. The Supreme Court has not yet decided the issue. Most frequently, such testimony has been referred to as "battered women's syndrome testimony." Opponents of admitting expert testimony on the BWS argue that the expert testimony should be excluded because (1) battered women's experiences are not beyond the ken of the average juror; (2) the BWS is "junk science;" and (3) when offered in conjunction with a self-defense plea, expert testimony seeks to give women a license to kill. Proponents of expert testimony argue that it is essential to a woman's self-defense claim.
1. Battered Women's Experiences Are Beyond the Knowledge and Experience of the Average Juror.
In an article arguing for the exclusion of expert testimony of the BWS, Mira Mihajlovich states that jurors do not need the help of expert testimony to understand that previous violent encounters alter a woman's perception about when she is in imminent danger. 114 Mihajlovich further argues that questioning during voir dire is sufficient to root out jurors who hold biased views about women who stay in abusive relationships.
Most courts have found Mihajlovich's argument unpersuasive. As discussed below, the Court of Appeals of Michigan found that the average juror is uninformed or misinformed about certain characteristic behaviors of battered women. 115 Specifically, the admission of expert testimony regarding battering and its effects is imperative to explain to laypeople why the woman stayed in the relationship.
2. Junk Science and the Anti-Syndrome Movement
Increasingly, parties seeking to refute evidence that an adversary acted in accordance with one of the syndromes are calling experts of their own to say that syndromes are nothing but half-baked unscientific attempts to categorize diverse behavioral characteristics into tidy categories. Rape trauma syndrome and battered child syndrome have borne the brunt of the backlash against syndrome evidence in the court room. Nonetheless, some of the same criticisms lodged against rape trauma syndrome and battered child syndrome have been lodged against the BWS in other jurisdictions. 116
First, syndromes like the BWS are not listed in the Diagnostic and Statistical Manual published by the American Psychiatric Association. Second, expert critics of "junk science" maintain that syndromes are the creation not of scientists and researchers, but of therapists who from pseudo-scientific theories on the basis of personal experience and anecdotal evidence. 117 Critics argue that therapists are not in a position to confirm whether symptoms reported by clients actually exist or exist to the degree that they are reported. Junk science witnesses explain that therapists like to impose order on diversity of experience because it makes them "feel better" to attach a name to a series of complex behaviors. 118
According to these skeptics of so-called "junk science," the symptoms and definitions of syndromes become so all-encompassing that every conceivable human behavior is seen as confirming the existence of the syndrome. Thus, syndromes become evidence of everything and nothing; anything a woman does is taken to be consistent with the fact that she was raped/battered. "Junk science" experts seek to place doubt in the minds of judges and juries about whether syndrome evidence is empirically reliable.
3. Claims that expert testimony coupled with a self-defense plea amounts to "license to kill."
In the wake of the recent Bobbit and Menendez trials, one often hears members of the media use the term "the abuse excuse" to describe what was perceived as a disingenuous attempt by defense attorneys to direct attention away from their clients' bad actions. Not only media and lay people, but also judges and lawyers often misconstrue the purpose of expert testimony on abuse in criminal trials.
Some have misconceived expert testimony as an effort to create a special "battered women's defense" to homicide which would allow a woman to "destroy her tormentor at her own discretion." 119 There is no such special defense. No unique legal rules on self-defense apply to the battered woman's self-defense case. When a battered woman kills her abusive partner, expert testimony on the BWS is used not to explain away her actions, but to support her self-defense claim.
According to Jane Parrish, a consultant for the National Clearinghouse for the Defense of Battered Women:
Supporting the introduction of expert testimony does not promote vigilantism; it promotes fair trials. Defendants--including battered women defendants--should be able to introduce all relevant evidence at their trials, including evidence of and expert testimony about their experiences of abuse, that can help the jurors better understand their situations. 120
Parrish further notes that this type of social context information is not unique to battered women's self-defense cases. 121 For example, in a barroom brawl case, a defendant may bring in evidence of the victim's prior threats to support the fact that his actions in self-defense were reasonable. In the same way, expert testimony on the nature and effects of battering can help explain why a woman who killed her partner in self-defense held a reasonable belief that she was in imminent danger.
104. See: People v. Wilson, 487 N.W.2d 822 (1992).
105. See: id. at 823-24
106. 449 Mich. app. 578
107. See: Parrish, note 107, supra at 3.
110. Battered Women Who Kill Their Abusers. 106 Harv.L.R. 1574, 1585 *1993).
111. Tes. Penal Code Ann. ???? 19.06 (Vernon 1989 & Supp. 1993).
112. Battered Women Who Kill Their Abusers. 106 Harv. L.R. 1574, 1585 (1993).
114. See: Mihajlovich at 1253
115. See: People v. Wilson, 194 Mich. App. 599, 487 N.W.2d 822, 824 (1992).
116. See: "Syndrome Evidence: Don't Get Fooled Again." Material for Presentation by Gail Benson and Jeanice Dagher-Margosian. On file at the Battered Women's Clemency Project.
117. See: testimony by Dr. Carol Tavris in "Syndrome Evidence: Don't Get Fooled Again." note 103, supra
119. See: Mihajlovich at 1273.
120. Jane Parrish. "Trend Analysis: Expert Testimony on Battering and Its Effects in Criminal Cases." 1995. See: National Clearinghouse for the Defense of Battered Women at: http://www.cybergrrl.com/planet/dv/stat/statbwkill.html
121. Id. at 2.
Your object in conducting interviews with potential Clemency Project candidates is to elicit information sufficient to compile a comprehensive report on almost every area of the candidate's life. You will be asking questions about: family relationship, marital history, employment, educational and medical history, the offense, her trial, the woman's prison record, and her goals for the future. Your Clemency Interview Questionnaires will be of great assistance to you in structuring the interview. (See Appendix 12). But what if your client responds in monosyllables? How can you elicit the information you need with sensitivity? What can you say if the client becomes emotional? In order to prompt your client's story and to respond to the emotional nature of her recollections, you may want to consider the following suggestions:
B. Physical environment
The physical setting in which an interview is conducted in part determines the attitude and responsiveness of the client. 123 During an interview in which you expect to discuss highly emotional issues, an interviewer would be wise to do what she can to make her client as physically comfortable as possible. Outside a prison setting, this might include taking care that the interviewing room has adequate ventilation, comfortable room temperature, comfortable chairs, freedom from distraction, and privacy.
In a prison setting, obviously, an interviewer has little control over the physical conditions under which the interview is conducted. Do the best you can. If you cannot do anything about the uncomfortable condition, at least be aware of it and its potential effect on the co-operativeness and responsiveness of the client.
Privacy is vital to a good interview. A client will be less willing to share painful memories with a stranger if she feels she can be overheard. Likewise, you as an interviewer may have trouble concentrating or expressing yourself if you feel that others can hear you. If you are an attorney or an attorney's representative, request a confidential room, as discussed in Chapter VIII.
The presence of a desk between you and the client tends to emphasize the interviewer's authority and to create a sense of formality that may not be conducive to open communication. Think about arranging chairs in a way that fosters a sense of equality.
C. Establishing Rapport
During the course of your interview, you will be asking your client to reveal to you, a total stranger, some of the most painful, humiliating, unendurable moments of her life. You may be working with a client who has difficulty confiding in others, who distrusts lawyers or social workers, or whose culture has conditioned her not to discuss her private matters with outsiders. Before delving into the substance of the interview, it is important to focus on achieving rapport. 124
♦ Greet the client warmly and introduce yourself.
♦ Extend the courtesy of asking the client how she would care to be addressed. Doing so conveys your respect for your client. Be aware that in some ethnic and social backgrounds it may be considered impolite to address an older adult by her first name.
♦ Engage in a "warm up" period with your client. You might tell her a little bit about yourself and why you are interested in the Clemency Project.
♦ Assure the woman that the information she conveys is confidential, and that you will not disclose it to anyone outside the Clemency Project without her express informed consent.
♦ Be respectful and attentive. Try to remember names the client has told you. Take notes, but do not bury your head in your papers.
♦ Pay attention to the non-verbal messages you are sending to your client. Maintain good eye contact. Try not to slouch in your chair, flip through your papers, fiddle with your pen, or tap your foot in a distracting manner while she is talking.
♦ Dress professionally, but do not overdress. You do no want to make your client feel that you are inaccessible.
♦ Start where the client is. If she appears to have something pressing on her mind, allow her to express her concerns before beginning the interview.
Some verbal barriers to effective communication include:
♦ Moralizing (e.g. "You shouldn't have done that.")
♦ Using sarcasm or humor which is distracting or makes light of a client's problems
♦ Responding infrequently
♦ Using self-disclosure inappropriately
♦ Mumbling or speaking inaudibly
♦ Speaking too loudly
♦ Nervous laughter
♦ "Empty consolations" (e.g. "You'll feel better tomorrow;" "Don't worry. Things will work out;" "I really feel sorry for you.")
D. Eliciting Information
If your client is responding in monosyllables, this may be a sign that you are phrasing your questions too narrowly.
Instead of asking:
"Did your husband get mad?" ASK
"What impact did that have on your husband?"
Instead of asking:
"How many children do you have?" ASK
"Tell me about your children."
E. Empathic Responses
There may be moments during your interview when you want to convey to your client that you are trying to appreciate the magnitude of the emotional trauma that she has experienced. You can do this with empathic responses. An "empathic response" is a social work jargon for a response that identifies a feeling a client has just expressed, and reflects it back at them. For example:
"It sounds like you felt completely powerless to help your child."
"You did the best you could under the circumstances."
In making empathic responses, try to avoid telling the client that you know how she feels. Listen to her carefully, and try to respond to what she has just told you with words carefully chosen to reflect emotional nuances.
If a client does become emotional, allow it to happen. You need not immediately jump in with consolations. This may make her feel like it is unacceptable to show emotion around you and you want her to stop. Finally, be attentive to signs that a client may be too emotionally exhausted or otherwise indisposed to continue with the interview.
All Project volunteers will be expected to maintain strict confidentiality. This means you are not to discuss the substance of your interview even with close friends and family. If you have questions about confidentiality issues, please consult one of the Project Coordinators.
122. In drafting this chapter, the author has relied heavily on Hepworth & Larsen's Direct Social Work Practice. 4th Ed. (1993).
123. See: Hepworth & Larsen at 41.
124. Hepworth & Larsen suggest some of the following interview strategies at 42-45.
Tips on Submitting Effective Clemency Petitions
What is the Board Looking for?
• Emphasize the length of time your client has spent in prison. Board members want to feel that any action they take is not too radical or controversial.
• Emphasize that the client will be moving into a stable supportive environment if she is granted clemency. Include information about where she will live, how she will support herself, and who is included in her support network on the outside.
• Consider mentioning the fact that other governors and parole boards in other states have granted clemency. Cite specific examples.
Tips on Writing and Organization
• Include an introductory paragraph or section in which you lay out the strongest part of your petition up front. For example, one woman who recently submitted a petition for clemency graduated summa cum laude from Western Michigan University while in prison. Another woman's sentencing judge specifically stated that he hoped the Parole Board would commute her sentence. Do not hide facts like these in the middle of the petitions.
• Be concise.
• Use clear headings to organize and separate your arguments.
• If there is clearly documented evidence of abuse, consider presenting it in table format to achieve maximum dramatic effect. For example:
|DATE||NATURE OF THE ABUSE||DOCUMENT|
|7/1/70||Dan found on top of Paula with his hands around her neck.;||Smith Affidavit, Ex. 1|
|11/23/72||Dan beats Paula so badly that she has contusions all over her body.||Cook County Hospital Records, Ex. 2|
|10/3/75||Crisis Center overhears abuse and calls police.||Support Service Records, Ex. 4|
|4/4/73||Dan violates restraining order. He is arrested for punching hand through window.||Detroit, MI|
• Include letters of support from prison administrators, work supervisors, religious leaders, educators, and social workers.
• Include police and hospital records documenting abuse.
• Include affidavits from friends, family members, or domestic violence workers who witnessed the abuse, or had first hand knowledge of it.
• Use it! Clemency is intensely political, and our ability to sway public opinion may be our best hope of success.
• A press conference
• Bar journal articles
• Lectures in the community, at law schools, and undergraduate institutions
• Press releases (contact PRNewswire at 800-697-9712)
General Tips: Prison Visits, Client Communications, and Acquiring Necessary Documentation 125
A. Prison Visits 126
Visiting hours vary from one institution to another. Prisoners cannot move to the visiting room during count 127 and visitors cannot enter the gates during staff shift change. All times should be checked in advance to avoid predictable delays.
All visits are processed at the institution's information desk and noted on the prisoner's record. Adult visitors must present picture identification such as a driver's license, Secretary of State identification card, or passport.
Visitors are given a locker in which they must place their coats, purses, the contents of their pockets, and any other personal possessions. Depending on the institution, the visitor may also bring in up to $10 in silver change to buy refreshments from vending machines.
All visitors, including attorneys and clergy, are subject to search and will be prohibited from visiting if they refuse to submit. (See Appendix 13 for one facility's search policy). When you visit your client in prison, avoid wearing lots of metal jewelry, lace up boots, or other difficult to remove items. Visitors may be required to pass through a metal detector or permit inspection by a handheld device. In addition, they must submit to a "clothed body search" by an employee of the same sex. Such a search is defined as:
A thorough manual and visual inspection of all body surfaces, hair clothing, wigs, briefcases, prostheses and similar items; includes visual inspection of the mouth, ears, and nasal cavity. Removal of clothing is not required except outerwear, e.g. jacket or coat, hat, shoes, and socks to allow inspection of the shoes and soles of the feet. All items shall be removed from pockets. 128
Prisoners are strip searched after all visits.
MDOC policy allows for an unlimited number of attorney visits during regular business hours, the prisoner's regular visiting schedule, or other hours by special arrangement. These visits do not count against the prisoner's quota of personal visits. 129 In addition to a picture identification, attorneys need to present their Bar cards. Paralegals, investigators and other agents of the attorney need a letter on the attorney's letterhead stating that the person is employed in a particular capacity and is assisting on this client's case.
Attorneys should contact the institution where the client resides 24 hours in advance and inform the institution of the planned visit. Arrangements are typically made through the facility's Litigation Coordinator, or the Warden's Administrative Assistant. While calling ahead may not be required at all facilities, it is always a good idea and may reduce waiting time upon arrival.
Even if the client is generally restricted to non-contact visits, the attorney can request a contact visit. 130 Attorneys can and should insist on being provided interview space where the conversation cannot be overheard. 131 Always ask for and keep the name of the person you talked to at the institution in case something has changed upon your arrival.
Pursuant to an August 25, 1995 Memorandum issued by Deputy Director Dan Bolden, attorneys may take the following items into a prison visiting room when seeing a client:
•Legal papers, including the attorney's file on the prisoner's case, e.g., correspondence, pleadings, transcripts;
•Writing pads and implements (pen and/or pencil);
•Softbound copies of law books.
Tape recorders, video cameras, or other equipment may be taken in with the prior approval of the warden's office where there is a special need. These items are "not routinely allowed." All items are subject to search.
At most institutions, attorneys cannot leave paperwork for the client in connection with a visit. If transcripts, briefs, or other documents are given to the client during the visit, they will be confiscated and the client will receive a major misconduct for possessing contraband. However, some facilities will allow attorneys to "mail" correspondence through the institutional mail system while at the facility.
B. Client Communications 132
All institutions have prisoner telephones. All calls placed from these phones must be collect. Each prisoner is assigned a Personal Identification Number (PIN) to allow access to a maximum of 20 telephone numbers. Changes in attorney phone numbers must be entered in to the computer within one business day of the prisoner's request.
Telephone calls are automatically terminated after 15 minutes. Warning messages are given a few minutes before the time limit is reached. Then the telephone system simply disconnects the call. If the parties want to continue speaking, the prisoner must dial again, and the recipient must pay the additional charges for accepting another collect call.
Attorney-client telephone conversations are exempt from monitoring if the attorney is not related to the prisoner by blood or marriage. The prisoner must identify the telephone number as that of her attorney, and staff must verify that the number really is a lawyer's. 133 Clients may not be able to return calls to the attorney's home or another office if that number is not listed in the Bar Journal Directory.
If an attorney wants a client to phone, it is advisable to set a specific date and time. An attorney can usually call the warden's office and arrange for the client to call at a specific time during business hours. If the attorney cannot be in the office at the scheduled time, it is strongly recommended that someone be authorized to accept the charges and reschedule another date and time for the call. Prisoners take these "appointments" very seriously.
Mail addressed to a prisoner must include the person's name and number. All regular incoming mail is opened and inspected for contraband.
A prisoner may arrange to have legal mail be treated as confidential and opened only in his or her presence. The client must submit a written request to the mail office in the institution where she resides asking that all mail received from the client's designated attorney "be opened and inspected for contraband in the prisoner's presence." 134 Upon receipt of the clients' request, the mail office will enter an "ATTY" code on the computer. After that, any legal mail will be specially routed to the housing unit where it will be opened and inspected for contraband in the prisoner's presence. Attorneys should clearly mark on the exterior of the envelope: "LEGAL MAIL-CONFIDENTIAL."
An attorney may send one stamped, self-addressed envelope to a client 135. Indigent prisoners are provided with some postage, writing materials, and photocopies to assist them in obtaining access to the courts.
C. Acquiring Necessary Documents 136
1. Prisoner Files
• Institutional File: Contains any document that affects a prisoner's incarceration. The pre-sentence report is in the institutional file. (See Appendix 15 for an explanation of the significance of the pre-sentence report.) The institutional file follows a prisoner from institution
• Central Office File: Contains documents of the parole board decision making process including the Board's notes and additional documents that were considered. This file is located at the MDOC in Lansing.
• Counselor's File: Copies of classification documents and all contacts with prisoners. This file follows prisoners through transfers to other facilities.
• Medical File: Contains all information relevant to a prisoner's medical history and treatment during incarceration. You will need a medical release to access this file.
2. Domestic Violence Shelter Records
Domestic violence shelters will not release records of client contacts without verbal or written authorization from the client. Some shelters will require you to submit a release of information on their own forms. Others will accept a letter from the client.
3. Hospital Records
To obtain hospital records, call the patient records office at the hospital where your client went for treatment. Although hospital policies differ, the hospital will likely tell you to send in a written request for the documents you are seeking. The records office will probably want to know the patient's name, date of birth, social security number, and the specific information you are requesting.
In addition, you will need a signed release form. Usually, hospitals will accept a simple letter on attorney letterhead requesting release of information, signed by the patient. Some hospitals may require a more formal letter in which you cite to relevant statutes.
While some hospitals keep all records in storage, others purge their records after seven years. Hospitals may charge a special lawyers' fee for copying. 137
4. Police Reports
To obtain police records, call the records office in the county where the event occurred. The records office may require you to fill out a FOIA request explaining: your relationship to the client, why you need the report, and the case number (if you have it). At some departments, the FOIA request will be forwarded to the City Attorney who will decide whether to release the information.
Police department policies for storing records vary. Some police departments archive their older records off-site. Some shred their records after seven years. If the event you are researching led to a prosecution, and if records of the event have been shredded by the police department, try contacting the prosecuting attorney's office to see if they still have records on file.
Police records offices charge copying fees on the order of about $3 for the first page and $2 per page thereafter.
125. Most of the text in this chapter was excerpted with the publisher's permission from Michigan Prison Sentences : A Guide for Defense Attorneys (1996) by Sandra Girard. This invaluable publication is published by the Michigan Appellate Assigned Counsel System, and can be ordered with the form attached in Appendix 16.
126. Excerpted from Girard, p. 141-43.
127. "Count" is the time when the Department of Corrections counts all inmates on site for security purposes.
128. PD 04.04.110(A)(5)
129. PD 05.03.140(B)
130. R 791.6614; DOM 1996-42, 7; PD 05.03.140(FF).
131. PD 05.03.116(d).
132. Excerpted from Girard, p.137-41.
133. R 791.6638(2).
134. R 791.6603(4); PD 05.03.118(1).
135. PD 05.03.116(II)(F).
136. Excerpted from Girard, p. 91; 188-89.
137. At one hospital the author called, the charge was a $22.50 clerical fee plus $0.75 per page.
A. Prisoner Advocacy Groups
Prison Legal Services of Michigan
3855 Cooper STreet
Jackson, MI 49201
(517) 780-6639 (Ph)
(517) 787-0014 (Fax)
Director: Sandra Girard
Women's Legal Services
(Has offices at MI Women's Correctional
Facilities and Camp).
Director: Steven Ramey
American Friends Service Committee
Criminal Justice Program
1414 Hill Street
Ann Arbor, MI 48104
(734) 761-8283 (Ph)
(734) 761-6022 (Fax)
Director: Penny Ryder
P.O. Box 2736
Kalamazoo, MI 49003-2736
Director: Kay Perry
MI FAMM (Families Against Mandatory Minimums)
200 N. Washington Square, Ste. 310
Lansing, MI 48933
(517) 482-4982 (Ph)
Director: Laura Sager
The Sentencing Project
918 F. St. N.W. Ste. 501
Washington, D.C. 20004
(202) 628-0871 (Ph)
Director: Malcolm Young
National CURE Headquarters
P.O. Box 2310
National Capitol Station
Washington, D.C. 20013-2310
The National Prison Project
1875 Connecticut Avenue, N.W., Ste 410
Washington, D.C. 20009
Prison Legal News
2400 N.W. 80th Street, #148
Seattle, WA 98117
Publisher: Rollin Wright (561) 547-9716
ABA Criminal Justice Section
740 15th Street NW
Washington, D.C. 20005-1009
(202) 662-1500 (voice)
(202) 662-1501 (Fax)
B. Michigan Women's Correctional Facilities and Camp
Florence Crane Women's Facility
38 Fourth Street
P.O. Box 307
Coldwater, MI 49036
Scott Correctional Facility
47500 Five Mile Road
Plymouth, MI 48170
19 Fourth Street
Coldwater, MI 49036
return to top
C. Other Helpful Resources
State Appellate Defender Office
3300 Penobscot Building
Detroit, MI 48266
(313) 256-9833 (Ph)
(313) 965-0372 (Fax)
State Appellate Defender Office
200 N. Washington Square, Ste. 340
Lansing, MI 48913-0001
(517) 334-6069 (Ph)
Michigan Protection and Advocacy Service (MPAS)
106 W. Allegan, Ste. 210
Lansing, MI 48933-1706
(517) 487-1755 (Ph)
1-800-288-5923 (toll free)
Legislative Corrections Ombudsman
4th Floor Capitol Hill
Lansing, MI 48913
(517) 373-8573 (Ph)
D. Domestic Violence Referrals and Assistance
Prosecuting Attorneys Association of Michigan
Domestic Violence Division
116 Ottawa, Suite 200
Lansing, MI 48913
Domestic Violence Prevention and Treatment Board
235 S. Grand Avenue, Suite 513
Lansing, MI 48933
National Domestic Violence Hotline
1-800-799-SAFE (7233) *** 1-800-787-3224 (TDD)
Family Law Project
University of Michigan Law School
Ann Arbor, MI 48109
1736 Colombia Road N.W.
Washington, D.C. 20009
(specializing in assistance to immigrant battered women)
Michigan Coalition Against Domestic Violence
3893 Okemos Road
Okemos, MI 48864
The Domestic Violence Project, Inc/SAFE House
Post Office Box 7052
Ann Arbor, MI 48107
(800) NO-ABUSE (800) 662-2873
(313) 973--0242 (Business)
(313) 973-7817 (Fax)
(313) 995-5444 (24 hour crisis line)
Susan McGee, Executive Director
Illinois Battered Women's Clemency Project
4669 N. Manor
Chicago, IL 60625
National Clearinghouse for the Defense of Battered Women
Michigan Domestic Violence Prevention & Treatment Board Child and Family Services/Family Independence Agency
235 South Grand Avenue
Grand Tower, Suite 513
P.O. Box 3037
Lansing, MI 48909
(517) 335-6177 (Fax)
Coordinates Michigan's response to domestic violence. Provides shelter service funding, training, and standards on domestic violence issues, and provides advice to the Governor on legislative issues.
Michigan's Coordinating Councils to Prevent Domestic Violence
and initiators of county-wide efforts to provide coordinated community responses
toward ending domestic violence, listed alphabetically by county:
Allegan Prosecuting Attorney's Office
Allegan, MI 49010
Gary Knapp, Chair
205 Grove Street
Mancelona, MI 49659
Patricia Baribeau, Chair
contact: Char Kangas
11 S. 4th Street
L'Anse, MI 49946
Roth Noble, Linda Mendez, Chairs
contace: Linda Mendez
P.O. Box 1458
Bay City, MI 48706
Chief L.J. McKeown, Chair
112 W. Cass
Albion, MI 49224
Pat Hillman, Chair
Three Reivers, MI 49093
Alex Kaczynski, Chair
contact: Peter Armar
1 MacDonald Drive, Suite A
Petoskey, MI 49770
Cynthia Antikainen, Chair
contact: Emily Newhouse
P.O. Box Gx 8
Calumet, MI 49913
Sandy Gaudreau, Chair
contact: Steven Cornier
429 Montague Avenue
Caro, MI 48723
Sue LeDue & Ann Gregory, Chairs
Ingham County Prosecutor's
303 W. Kalamazoo
Lansing, MI 48933
Jeff Winters, Chair
contact: Catherine Talberg
P.O. Box 93
Anne, MI 48846
Judge Chad Schumaker, Chair
contact: Jane Myers
P.O. Box 1526
Jackson, MI 49204
Linnea Mitchell, Chair
333 Monroe NW
Grand Rapids, MI 49503
Judge James Sheridan, Chair
contact: Khristine Henson
213 Toledo Street
Adrian, MI 49221
David Morse, Chair
contact: Cindi Tarchinski
P.O. Box 72
Howell, MI 48843
Nancy Kipling, Chair
407 W. Harrie
Newberry, MI 49868
Mary Kostecki, Chair
100 Marley Street
Ignace, MI 49781
Judge George Steeh, III, Chair
contact: Sue Stempowski
P.O. Box 1123
Mt. Clemens, MI 48046
contact: Glenn Sarka
1310 S. Front Street
Marquette, MI 49855
Kevin Courtney, Chair
contact: Patty Johnson-Welby
P.O. Box 1074
Big Rapids, MI 49307
Tony Tague, Chair
contact: Lois Williams
1221 West Laketon
Muskegon, MI 49441
Judge Ed Sosnick, Chair
contact: Carol Garagiola
853 Woodward Avenue
Royal Oak, MI 48381
Bob Porter, Chair
contact: Cindy Pushman
600 Livingston Boulevard
Gaylord, MI 49735
contact: Donna Cornwell
304 Garden Avenue
Holland, MI 49424
contact: Valerie Hoffman
P.O. Box 565
Saginaw, MI 48606
Cheryl Rogers, Chair
P.O. Box 472
Street Johns, MI 48879
contact: Amy Smith
Port Huron, MI 48060
Anissa Bristol, Chair
Suite 360 Detroit,
Violence Agencies (July 29, 1997)
|Family Counseling & Svcs./
contact: Deb Glauner
213 Toledo St
Adrian, MI 49221
contact: Barbara Morgan
P.O. Box 797
Alpena, MI 49707
Alcona, Alpena, Montmorency, Presque Isle
|DV Project Inc/SAFE House
contact: Susan McGee
P.O. Box 7052
Ann Arbor, MI 48107
313-973-0242 ext. 203
contact: Victoria Reese
P.O. Box 199
Battle Creek, MI 49016
Barry, Calhoun, Eaton
|Bay County Women's Center
contact: Barbara Rajewski
P.O. Box 1458
Bay City, MI 48706
|Safe Shelter, Inc.
contact: Jan Brown
P.O. Box 808
Benton Harbor, MI 49023-0808
|Women's Information Service, Inc
contact: Pam Forbes
P.O. Box 1074
Big Rapids, MI 49307
Mecosta, Newaygo, Osceola
|Cadillac Area OASIS/Family Resource Center
contact: Cheryl Bader
P.O. Box 955, 220 E. Cass
Cadillac, MI 49601
|Barbara Kettle Gundlach Shelter Home for Abused Women, Inc.
contact: Emily Newhouse
P.O. Box 8
Calumet, MI 49913
Houghton, Keweenaw, Ontonagon
|First Step, Inc.
contact: Judy Ellis
5820 Lilley Road, Ste. 5
Canton, MI 48187
|Thumb Area Assault Crisis Center
contact: Dennis Daniels
429 Montague Ave
Caaro, MI 48723
Huron, Sanilac, Tuscola
|Branch County Coalition Against Domestic Violence
contact: Gail Waymire
P.O. Box 72
Coldwater, MI 49036
|My Sister's Place/Women's Justice Center
contact: Norma Tucker
P.O. Box 13500
Detroit, MI 48213
contact: Mary Lu Lewis
P.O. Box 21904
Detroit, MI 48221
|Alliance Against Violence & Abuse
contact: Sandy St. Ours
1401 N. 26th Street
Escanaba, MI 49829
Delta, Schoolcraft, Menominee
|YWCA of Greater Flint/SAFE House
contact: Mary Ann Ketels
310 Third St.
Flint, MI 48502
|YWCA Domestic Crisis Center
contact: Leslie Newman
25 Sheldon Blvd. S.E.
Grand Rapids, MI 49503
616-459-7062 ext. 113
|River House/Mercy Hospital
contact: Bonnie French
P.O. Box 661
Grayling, MI 49738
Crawford, Ogemaw, Oscoda, Roscommon
contact: Kristin Lucas
P.O. Box 231
Hillsdale, MI 49242
|Center for Women in Transition
contact: Donna Cornwwell
304 Garden Ave
Holland, MI 49424
|Livingston Area Council Against Spouse Abuse, Inc (LA CASA)
contact: Deborah Felder-Smith
P.O. Box 72
Howell, MI 48844
|Eight Cap, Inc.
contact: Catherine Talberg
P.O. Box 93
Ionia, MI 48846
|The Caring House
contact: Cheryl O'Neil
508 Stanton St
Iron Mountain, MI 49801
|Domestic Violence Escape, Inc. (DOVE)
contact: Kim Kolesar
P.O. Box 366
Ironwood, MI 49938
contact: Shirley Pascal
P.O. Box 1526
Jackson, MI 49202
|YWCA Domestic Assault Program
contact: Barbara Mills
353 E. Michigan
Kalamazoo, MI 49007
|Baraga County Shelter Home
contact: Char Kangas
11 S 4th Street
L'Anse, MI 49946
|Council Against Domestic Assault
contact: Abby Schwartz
P.O. Box 14149
Lansing, MI 48901
|Lapeer Area Council Against Domestic Assault
contact: Kim Spurlock, Tracy Walker
P.O. Box 356
Lapeer, MI 48446
|Region Four Community Services
contact: Chris Warne
210 N. Harrison St.
Ludington, MI 49431
Lake, Mason, Oceana
|CHOICES of Manistee
contact: Jacqueline Kiszelik
P.O. Box 604
Manistee, MI 49660
616-723-6597 (Ph. & Fax)
contact: Sue Kensington
1310 S. Front
Marquette, MI 49855
|Shelterhouse/Council on Domestic Violence & Sexual Assault
contact: Bernandine Lasher
P.O. Box 2289
Midland, MI 48641
|Family Counseling & Shelter Services
contact: Bob Oullette
502 W. Elm Ave. Ste. G-East
Montor, MI 48161
|Turning Point, Inc.
contact: Laurie Huff
P.O. Box 1123
Mt. Clemens, MI 48046
|Women's Aid Service, Inc.
contact: Lynn LaPorte
P.O. Box 743
Mt. Pleasant, MI 48804
Clare, Gratiot, Isabella
|Every Woman's Place
contact: Susan Johnson
1221 W. Laketon
Muskegon, MI 49441
|Woman's Resource Center of Northern MI
contact: Jan Mancinelli
Petoskey, MI 49770
Antrim, Charlevoix, Cheboygan, Emmet, Otsego
contact: Hedy Nuriel
75 W. Huron
Pontiac, MI 48342
810 334-2343 ext. 20
|Domestic Assault/Rape Elimination Services (DARES)
contact: Carol Zielinski
P.O. Box 610968, 1840 Grant Pl.
Port Huron, MI 48061
contact: Valerie Hoffman
P.O. Box 565
Saginaw, MI 48606
|Eastern Upper Penninsula Domestic Violence Program
contact: Doreen Howson
P.O. Box 636
Sault Ste Marie, MI 49783
Chippewa, Luce, Mackinac
|Relief After Violent Encounter (R.A.V.E.)
contact: Cheryl Rogers
P.O. Box 472
St. Johns, MI 48879
|Domestic Assault Shelter Coalition Inc.
contact: Pat Hillmann
P.O. Box 402
Three Rivers, MI 49093
Cass, St. Joseph, VanBuren
|Women's Resource Center of Grand Traverse Area
contact: Mary Lee Lord
720 S. Elmwood, Ste. 2
Traverse City, MI 49684
Benzie, Grand Traverse, Kalkaska, Leelanau
contact: Sue Nygren
1530 Main Street
Marinette, WI 54143
Legal Aid Organizations that Accept Domestic Violence Cases
|Berrien County Legal Services
901 Port St., P.O. Box E
St. Joseph, MI 49085
|Central Michigan, Legal Aid of-
Serves Barry, Clinton, Eaton, Ingham & Shiawassee counties.
300 No. Washington Sq, #311
Lansing, MI 48933
|Eastern Michigan, Legal Services of -
Serves Arenac, Bay, Clare, Genessee, Gladwin, Gratiot, Isabella, Lapeer, Midland & Saginaw counties.
547 S. Saginaw
Flint, MI 48502
140 E. Main St.
Midland, MI 48640
320 S. Washington Ave, 3rd Fl.
Saginaw, MI 48607
|Lakeshore Legal Services of-
Serves Huron, Macomb, St. Clair, Sanilac, & Tuscola counties.
|Huron, Sanilac, Tuscola
121 W. Grant St.
Caro, MI 49723
21885 Dunham Rd. #4
Clinton Twp, MI 48036
|St. Clair Office
803 Tenth Ave, #C
Port Huron, MI 48060
|Northern Michigan, Legal Services of-
Serves upper peninsula counties and 21 northern-most lower peninsula counties.
Serves Alcona, Alpena, Montmorey &Presque Isle counties.
230 S. Third Ave
Alpena, MI 49707
Serves Gogebic & Ontonagon counties.
1002 A. East Lead St.
Bessemer, MI 49911
Serves Delta, Dickinson, Iron, Menominee & Schoolcraft counties.
806 Ludington St.
Escanaba, MI 49829
Serves Baraga, Houghton Keweenaw counties.
706 Sharon Ave.
Houghton, MI 49331
Serves Alger & Marquette counties.
125 W. Washington, #G & H
Marquette, MI 49855
Serves Charlevoix, Cheboygan, Emmet & Otsego counties.
446 E. Mitchell St.
Petoskey, MI 49770
|Sault Ste. Marie Office
Serves Chippewa, Luce & Mackinac counties.
130 W. Spruce St.
P.O. Box 710
Sault Ste. Marie, MI 49783
|Traverse City Office
Serves Antrim, Benzie, Crawford, Grand Traverse, Kalkaska, Leelanau, Manistee, Missaukee & Wexford counties.
207 Grandview Pky., #103
Traverse City, MI 49684
|Iosco, Ogemaw, Oscoda & Roscommon counties served by contract attorneys.
|Oakland/Livingston Legal Aid-
Serves Oakland & Livingston counties.
|Livingston County Office
223 W. Grand River Ave.
Howell, MI 48843
35 W. Huron, 5th Fl.
Pontiac, MI 48342
|Southcentral Michigan Legal Services Organization
Serves Branch, Calhoun & Hillsdale counties.
|Battle Creek Office
70 E. Michigan Ave.
Battle Creek, MI 49017
(Branch & Hillsdale Counties)
45 N. Hanchett
Coldwater, MI 49036
|Southeastern Michigan, Legal Services of-
Serves Jackson, Lenawee, Monroe & Washtenaw counties.
|Jackson County Office
800 Harris Bldg.
180 W. Michigan Ave.
Jackson, MI 49201
|Monroe County Office
Serves Lenawee & Monroe counties.
105 E. Front St.
Monroe, MI 48161
420 N. 4th Ave
Ann Arbor, MI 48104
|Family Law Project
Ann Arbor, MI 48109
|Southwestern Michigan, Legal Aid Bureau of-
Serves Cass, Kalamazoo, St. Joseph & Van Buren counties.
Michigan National Bank Bldg
P.O. Box 381
117 S. Broadway
Cassopolis, MI 49031
201 W. Kalamazoo Ave, #308
Kalamazoo, MI 49007
|St. Joseph County
County Annex 1
P.O. Box 663
Centreville, MI 49032
|Van Buren County
303 Paw Paw St.
Paw Paw, MI 49079
|Wayne County Neighborhood Legal Services Family Center
3535 Cadillac Tower
Detroit, MI 313-962-0466
|Free Legal Aid Clinic
4866 Third (lower level)
Detroit, MI 48201
|Western Michigan, Legal Aid of Big Rapids Office
Serves Lake, Mecosta, Montcalm & Osceola counties.
203 S. Third
Big Rapids, MI 49307
|Grand Rapids Office
Serves Allegan, Ionia Kent counties.
89 Ionia N.W., #400
Grand Rapids, MI 49503
Serves Mason, Muskegon, Newaygo, Oceana and Ottawa counties.
600 Comerica Bank Bldg.
Muskegon, MI 49440
Domestic Violence Project/SAFE House Report on
"Michigan Domestic Violence and Sexual Homicides: October 1996 to September 1997."
William Arnett - Age 39. Portage, MI
Died March 11, 1997. The ex-husband of the woman with whom he lived shot him. Robert Reynolds age 33, had a history of assaulting his estranged wife, Linda Condrey. After breaking into her home and killing William Arnett, he committed suicide. Linda and her 16-year-old daughter were barricaded in an upstairs bedroom and unharmed.
Sharon Bailey - Age 31. Detroit, MI
On May 31, 1996, Donald Holmes, age 35, stalked and beat her to death with a board, on the corner of a street. He was charged with Murder I.
Aleisha Belcher - Age 15. Detroit, MI
Shot to death with a shotgun and a pistol on March 23, 1997, along with two of her friends, Mindee Kalka and Rachelle Goodwin. At first it was thought that they had been killed due to gang violence. Later it was learned that Lorenzo Shelton III, age 18, boyfriend of Mindee, had committed the crime. His body was found three days later.
Yolanda Bellamy - Age 24. Detroit, MI
August 13, 1997, Yolanda was found dead in her home with 11 gashes across her head and neck. Scattered about her on the living room floor were the bodies of four small children who had also been stabbed and slashed to death.
Nathan Burns, Jr. - Age 5. Son of Yolanda Bellamy
Nathan Burns III - Age 3. Son of Yolanda Bellamy
Shafontah Bellamy - Age 3. Niece of Yolanda Bellamy
Delvontay Bellamy - Age 5. Nephew of Yolanda Bellamy
Reco Jones, Yolanda's ex-boyfriend, has been charged with five counts of homicide. When brought in for questioning on the murders, he jumped out of a fifth floor window of the Detroit Police Department and was in critical condition. He is charged with five counts of first degree murder.
Crystal Bunting - Age (Young teen). Lansing, MI
Stabbed to death on November 14, 1996, by Marco Chaired, boyfriend of Olga Delacruz, Crystal's mother. Chaired was assaulting Olga at the time and Crystal intervened to protect her mother.
Sherry Campbell - Age 39. Detroit, MI
Died March 10, 1997. Her father, James Campbell, shot Sherry to death along with her mother. He then set their home on fire and fled. He was arrested several hours later.
Joshua Deljanovan - Age 6. Jackson, MI
The son of Andrea and Mark Deljanovan who were divorcing after 13 years of marriage. Andrea had asked Judge Alexander Perlos to order that Mark be supervised during visitation with their son. Her request was denied. During the first unsupervised visit, Mark shot and killed Joshua and then himself.
Najorie Dillard - Age 45. Detroit, MI
She was shot in the chest and died on December 22, 1996. Her husband, Willard Dillard, age 64, is charged with second degree murder.
Lori Fossum - Age Unknown. Eaton Rapids, MI
Found dead in the home of her ex-boyfriend July 23, 1997. Lori's parents found her body, and the body of Glenn Glazier still holding a gun. They had become worried about their daughter and were searching for her. She was engaged to another postal worker at the time of her murder.
Rachelle Goodwin. - Age 17. Detroit, MI
Shot to death, with a shotgun and a pistol, along with two of her friends, Mindee Kalka and Aleisha Belcher, on March 23, 1997. At first thought to be the result of gang violence, it was later learned that Lorenzo Shelton III, age 18, boyfriend of Mindee, had committed the crime. His body was found three days later.
Helen Howard - Age 47. Grand Rapids, MI
Died June 12, 1997 from a blow to the head. Her boyfriend, Andrew Cummings age 34, thought Helen was hiding his beer. She was on the telephone with one of her adult children when he hit her. She died several hours later. He is charged with involuntary manslaughter.
Rosalind Howell - Age 35. Chesterfield Township, MI
Shot in the head December 30, 1996, by her boyfriend Gregory Davis, age 33. She never regained consciousness and died eight days later. Gregory Davis has been convicted of second-degree murder.
Darrell Izzard - Age 57. Wixom, MI
Died November 14, 1996 after being shot by Gerald Atkins, age 29, who also wounded three others. Atkins had entered the Ford Assembly Plant dressed in camouflage clothing and was carrying an assault rifle. He was looking for a female employee, for whom he had purchased an engagement ring, which she had rejected. The woman was not working that day but Atkins felt management had conspired to keep him from seeing the woman. Darrell Izzard was the plant manager. Atkins faces 26 felony charges.
Sherita Johnson - Age 37. Detroit, MI
Shot in the chest and died on April 13, 1996. John Moorer, age 41, with whom she lived, is charged with her murder.
David Joseph - Age 35. Clinton Township, MI
Shot to death by David Gibbard, the ex-husband of Maria Joseph, on December 18, 1996. The Joseph's two-year-old son was found in the next room unharmed. Neighbors reported that problems had recently escalated between Gibbard and his ex-wife. He had visitation rights with their two children but was required to pick them up and drop them off at the Madison Heights Police Department. (This type of arrangement is made by court order when the father may be a threat to the children's mother.)
Lisa Juchemich - Age 31. Iron Mountain, MI
Died February 5, 1997. After what a newspaper described as a "spat", Lisa Juchemich was stabbed by her husband Roger Juchemich, age 30, and shot in the back as she tried to escape from the house. He then shot and killed himself. Their ten-year-old daughter ran to a neighbor's home for help and called the police. Their other child, two years old, was found unharmed in the house.
Anjed Kahn - Age Unknown. Oak Park, MI
Found shot to death February 26, 1997, along with his mother-in-law Ahmedi Begum Khattak. Her husband, age 73, name unknown, was found at the scene and arrested.
Mindee Kalka - Age 14. Detroit, MI
Shot to death March 23, 1997 along with two of her friends, Aleisha Belcher and Rachelle Goodwin, by Lorenzo Shelton III, age 18. Mindee was his girlfriend and he thought she was pregnant. She wasn't. The girls had been shot first with a shotgun and then with a pistol. Three day later Shelton's body was found in a park. According to reports, he had been beaten and shot to death, by a friend, at his request.
Ahmedi Begum Khattak - Age Unknown. Oak Park, MI
Shot to death February 26, 1997, along with her son-in-law Anjed Kahn. Her 73 year old husband, name unknown, was arrested at the scene.
Carol Lynn Knepp - Age Unknown. Centreville, MI
Shot to death through the window of her car with a 20-guage shotgun, on February 19, 1996. She was on her way to work and less than a quarter mile from her home when she was murdered. Her husband, Gary Knepp refused to testify at the inquest, invoking the Fifth Amendment.
Donna Kay Kuster - Age 32. Marquette, MI
Killed by a single shotgun blast to the abdomen August 25, 1997, by her estranged husband David E. Kuster, age 43. He sat in his pickup for over an hour waiting for her to return to her car after attending the first day of classes at Northern Michigan University. She was studying conservation. A Personal Protection Order was found in her purse. It was not enough to protect her from being stalked and murdered. Below is an excerpt from a poem she wrote for her nine year old daughter Rachel.
Through children's eyes we can see the simple wonders of nature about us. To just enjoy what is here for us. To take time to stop and listen to the stillness - the soft whisper of the wind and the steady beat of our own heart. To feel life coursing through us, it is then that we realize how much a part of the earth we really are.
Tara Lee - Age 40. Detroit, MI
The man with whom she lived. Anthony Thomas, age 38, shot Tara in the head. She died March 14, 1996. He tried to commit suicide by shooting himself, but recovered. He is charged with Murder I.
Ingrid Marshall - Age 29. Plymouth Township, MI
Shot to death at work, on September 22, 1997. Ernest Hall, age 44, went to the Purchasing Department of Johnson Controls, fired two shots and took Ingrid hostage while the other employees fled. Ninety minutes later the police found both of them in a cubicle, dead. The month previous, Ingrid Marshall had left the man, fearing his rage, and obtained a Personal Protection Order. On the day of their deaths, Ernest Hall dropped off his wallet and a note to a friend that said, "Take care of my baby." They had a seven-year-old daughter. Ingrid is also survived by an older child. Ingrid had recently graduated from Eastern Michigan University and had applied to be a state trooper. She hoped to go to law school or enter state government.
Nancy Muriel - Age Unknown. Lansing, MI
Died after being hit by a car on April 25, 1997. She had been struggling with Eldrick Price and was running from him when she fell into the road and was hit by a passing car. There was a history of domestic violence perpetrated by Price, which resulted in six dismissals. Price has been charged with murder.
Michele Renea Nowlin - Age 28. Tecumseh, MI
Died April 12, 1997. Michele was strangled by her husband, Jeffrey Nowlin, 26, who then committed suicide. Police said they had responded to the residence a few times in the past because of loud arguments. There was no mention of arrests being made. A friend and former co-worker of Michele's said she was afraid of her husband. "She told me he beat her all the time and wouldn't let her have friends or anything." Michele left two little boys, ages one and seven.
Sandra Prince - Age 34. Saginaw, MI
Died September 10, 1997, from a single gunshot to the head. Her body was found by police in the living room of the home. Her husband, Marvin Prince, has been arraigned on an open charge of murder. The couple's four children, ages 17, 15, 14, and 13, were home at the time of the shooting.
Maria Adela Rubio - Age 35. Omer, MI
Shot in the head by her husband of 20 years, Maria Rubio, died July 18, 1997. She and her husband Pedro Antionio Rubio-Reyes, age 50, were migrant workers at a camp north of Standish, She is survived by two sons, ages 12 and 14.
Susan Sanderling - Age 30. Detroit, MI
Beaten to death with a steel pipe on January 19, 1996, by her husband Michael Sanderling, age 34. He is charged with Murder I.
Marjorie Satmary - Age 58. Romulus, MI
Died March 18, 1997. Marjorie had been struck at least three times in the head with a ball-peen hammer. Police believe she was asleep on the sofa when she was attacked by her 60-year-old husband, Louis, who later tried to commit suicide by slashing his wrists. Charges have not been pressed pending a psychiatric examination and further interviews.
Christie Sawyer - Age 24. Holt, MI
Died October 28, 1996. Her body was found in the back seat of her car in November, 1996. Nathan Andrews, age 37, pled guilty to second degree murder stating that she claimed to have had sex with another man right before him. He took a jump rope she was holding, wrapped it around her neck, tightened it and threw her from the couch to the floor. He then wrapped it around her neck one more time and squeezed. She passed out and died. He dressed her, put her body in the back of her car and left the car in an office complex parking lot.
Susan Thorpe - Age 38. Wayne, MI
Died February 15, 1997. Susan was killed by her estranged husband, Robert Thorpe, 36. Susan had left her husband and moved out several days before the incident. Robert found Susan at a local bar, shot and killed her, then committed suicide.
Rachel Timmerman - Age 19. Newaygo, MI
Rachel and her one-year-old daughter Shannon VerHage were last seen on July 3, 1997. On July 5, Rachel's body was found in Oxford Lake, bound with chains and cinder blocks. Her one-year-old daughter is still missing. Rachel was raped a year ago and was threatened and stalked by the perpetrator, but her family said no one would believe her. After her disappearance, the prosecutor received a letter asking that the charges be dropped. Handwriting analysis proved that Rachel did not write the letter. Police are looking for Marvin Gabrion who had blocks on his property that are quite unusual and match those tied to Rachel's body. Other evidence linking him to her has also been found. A reward has been offered for information leading to the discovery of Shannon. Rachel's mother believes the baby was sold.
Rolanda Turner - Age 28. Detroit, MI
On February, 19, 1996, she was shot in the chest and died. Her husband Leonard Turner, age 37, was charged with Murder I.
Nicole Washington - Age 26. Detroit, MI.
After an argument with Michael Anderson, on January 4, 1996, he strangled her to death and then dismembered her body. Anderson, age 28, was charged with Murder I.
Gary White - Age 48. Flint, MI
April 12, 1997, Gary white was shot to death outside a Buick Plant in Flint. He had been dating the estranged wife of robert Bigelow, age 48, who was arrested for the murder.
Gregory Williams - Age 37. Saginaw, MI.
Killed July 27, 1997, during an ambush in which his wife, Brenda Williams, age 41, and their daughter, Cassandra Barney, age 21, were wounded. Robert B. Wilbert, age 25, rammed the family's car with his car, causing it to flip over on to its top. He then went to the disabled vehicle and started firing. Wilbert was Cassandra's former boyfriend. The family had just been to the police department to file a report concerning Cassandra's abduction by Robert Wilbert earlier in the day. After running from the scene of the murder, the assailant took his own life.
Marcia Williams - Age Unknown. Southfield, MI
Died on February 21, 1997, after being stabbed at least 20 times, The man she divorced the month before, Kenneth Williams, age 35, was arraigned on two murder counts after being stopped by the police and found covered in blood. Marcia had called the police earlier stating that her former husband was following her. Her body was found in a parking lot not far from her car.
Tamara Williams - Age 20. Ann Arbor, MI
Died September 23, 1997, after being stabbed by Kevin Nelson, age 26. The couple lived together on the campus of University of Michigan. The attack began in Tamara's basement apartment. She managed to make it outside to the patio, but he followed and continued stabbing her and shouting at her. Tamara was able to run to a neighbor's home and pound on the window. 911 was called and a campus police officer arrived. He saw Nelson attacking Tamara and shouted for him to let her go. When Nelson continued the attack, the officer shot him twice. He died later in the hospital. Tamar Williams died during surgery. She was a senior at U of M and is survived by her 2-year-old daughter Kiera, who was found asleep in the apartment. Nelson had been convicted of domestic assault in 1995. At that time he received a year's probation and was ordered to stay away from Tamara. She pleaded with the court for a harsher punishment and wrote in a letter to the judge "My main concern is that every time Kevin Nelson has been in trouble, he has only received a tap on the wrist."
Emmanuel Young - Age 14. Redford Township, MI
The son of Terri and Adray Young, he was shot in the head and found sprawled on the back seat of the car, on February 8, 1997. His mother was found dead in the front seat. Emmanuel was in critical condition at Grace Hospital in Detroit, when his father, acting as if he had been out of town, came in and ordered removal of life supports. Emmanuel died shortly after. Adray Young was a Detroit firefighter and is charged with first degree murder.
Terri Young - Age 43. Redford Township, MI
Died February 8, 1997, after being shot in the head and chest was found slumped at the wheel of her car. Her estranged husband, Adray Young had arranged for a meeting with her at a nearby park. Their son Emmanuel, accompanied her because she feared the man. Her husband of 14 years shot them both, leaving them for dead. The next day he ordered life support to be removed from his son, who then died. He is charged with first degree murder.
Woman - Name Unknown. - Age approximately 30. Detroit, MI
March 31, 1997, Easter Sunday, a woman was seen running from a man on Belle Isle. Witnesses said the couple were arguing in a parking lot and the man pulled out a 12 gauge shotgun. They struggled with the gun before shots were fired. THe woman was shot in the face and the man shot himself in the stomach. Although a woman's driver's license was found in the car the police could not identify her. No subsequent stories appeared in the Detroit newspapers to provide identification information. (Attempts by Resource Center staff to discover the woman's identity were futile.)
Woman - Name Unknown - Age 22. Detroit, MI
Shot to death August 3, 1997. Witnesses report her 57-year-old boyfriend of five years was pounding on her door repeatedly before she opened it and shots were fired. Neighbors say she had kicked the man out two months ago. A mother of two, she worked as a driver of handicapped children for the city. No subsequent stories appeared in the Detroit newspapers to provide information on her identity.
The names included in this list are those of women, men, and children who died during the period, October, 1996 into September, 1997. Also included are names that were omitted from last year's list because we were unaware of them at the time. The women, men, and children listed all died because of the determination and desperation of one individual to maintain power and control over another. We create this list to help us remember those whose lives were taken and to emphasize the need for continued efforts to stop domestic and sexual violence.
The list was compiled from information received from individual, and newspaper clippings acquired by the Resource Center on Domestic and Sexual Violence. Annette Wheeler and Ellen Hayse wrote the synopses.
The list is not complete. Others have died for whom we have no information. (State Police records indicate the number of domestic homicides as: 74 in 1995, and 65 in 1996.)
We plan to continue updating the list and would appreciate receiving any information concerning homicides due to domestic or sexual violence. Information from newspapers is not always available or complete. It is most disturbing that two women on the list cannot even be named.
Breakdown of deaths:
* 31 Women
* 6 Men (connected in some way to a targeted woman)
* 10 Children (5 teens, 5 little ones under the age of 6)
* 47 Total Murders (10 of the assailants committed suicide)
Resource Center on Domestic & Sexual Violence
Domestic Violence Prevention and Treatment Board
Family Independence Agency
235 S. Grand Avenue, Suite 513
Lansing, MI 48933
Articles on Women Who Have Been Granted Clemency
Copyright 1998 Chicago Tribune Company, Chicago Tribune
January 9, 1998 Friday, NORTH SPORTS FINAL EDITION
SECTION: COMMENTARY; Pg. 24; ZONE: N; Voice of the people (letter).
LENGTH: 408 words
HEADLINE: BATTERED WOMEN DESERVE CLEMENCY
BYLINE: Margaret Byrne, Director, Illinois Clemency Project for Battered Women.
At 8:04 a.m. on Christmas Eve, Diane Fay Hirtzig walked out of the Dixon Correctional Center in western Illinois, a free woman after serving five years in prison.
Gov. Jim Edgar granted her clemency petition, as he has done in at least seven other cases of battered women who fought back against their abuser and were given long prison sentences.
Hirtzig had been convicted of hiring an undercover agent to kill her husband in a desperate effort to end a decade of constant violence against her and her six children.
What makes Hirtzig's case compelling is that her now-former husband, Edward Hirtzig, contacted the Illinois Clemency Project for Battered Women two years ago and asked us to file a clemency petition for Diane.
Edward Hirtzig told us he never believed Diane would hurt him. He gave us an affidavit in which he admits numerous violent attacks on Diane, including choking her to unconsciousness, beating her with his fists and repeatedly threatening to kill her, once with a knife.
He says, " I know that I made her very afraid of me. I also know this was the only reason she committed the crime she's in prison for. She felt she was protecting herself and her kids."
Since 1993, the Clemency Project has represented 35 incarcerated women. Diane Hirtzig is the sixth to have her sentence reduced through clemency petitions written by volunteer lawyers and law students. Her petition was written by Ines Monte and Eric Wigginton, who attend the Law School of the University of Chicago.
When Hirtzig packed her few belongings and walked out of prison, she left behind dozens of women whose cases are also worthy of clemency. Women whose lawyers failed to investigate or present evidence of the impact of domestic violence. Women whose trial judges failed to consider adequately the mitigating factor of the abuse. And women like Diane Hirtzig, who never should have been charged in the first place.
Copyright 1993 U.P.I.
March 10, 1993, Wednesday, BC cycle
SECTION: Domestic News
LENGTH: 467 words
HEADLINE: Clemency granted for battered woman
BYLINE: BY AL SCHOCH
DATELINE: TALLAHASSE, Fla.
In a landmark decision for battered women in Florida, the Cabinet voted 5-2 Wednesday to grant clemency to an Orlando woman imprisoned for killing her husband who she said beat and sexually abused her.
Kimberly Soubiell, 27, had her sentence commuted to time served. Gov. Lawton Chiles said the Cabinet, acting as the Florida Clemency Board, also recommended a 15-year term of probation.
"Our decision is not a justification for homicide," Chiles said. "We certainly don't condone crimes of homicide, just as we do not condone crimes of domestic violence. She has served five years."
Attorney General Bob Butterworth and Secretary of State Jim Smith voted against clemency.
"It's our belief that she poses no danger to society," Chiles said.
Soubielle is the first person granted clemency under a new state program to review murder convictions of women who may have suffered from "battered women's syndrome" when they killed their abusers.
"I'm very excited today, I'm even more excited for Kimberly," said Candice Slaughter, director of the Florida Women in Prison Committee of the Florida Commission on Domestic Violence.
"I was disappointed because she remains on probation. But, however it turns out, the bottom line is she's going home," Slaughter said.
Slaughter said three other women who claim to have killed an abusive mate or boyfriend are expected to have their cases heard by the Clemency Board in June.
The Women in Prison Committee first brought Soubielle's case to the governor's attention.
Soubielle was convicted of second-degree murder for killing her husband, Pierre, at the Seminole County home on March 14, 1987. She was sent to prison in 1988.
At her clemency hearing in December, Soubielle's attorney said she shot her husband in self-defense while trying to flee with her daughter.
The attorney said Soubiell's husband treated he like a "lifelong prisoner and sex slave" during their 3 years of marriage.
State prosecutor Stephen Plotnick said there was no evidence of abuse and argued that freeing Soubielle would set a dangerous precedent giving people who claim to be battered "carte blanche" to kill their spouse.
In December 1991 the governor and Cabinet created review panels for women convicted of killing people they say abused them.
The panel that reviewed Soubielle's case determined she suffered from battered spouse syndrome bu the Florida Parole Commission rejected the findings.
The commission said there was no factual confirmation Soubielle was battered but the Cabinet decided to grant her clemency.
A dozen prison inmates have applied for special clemency consideration for battered spouses, according to the Office of Executive Clemency in Tallahassee.
December 4, 1996, Wednesday, BC cycle
SECTION: Domestic News
LENGTH: 389 words
HEADLINE: Husband-killer pardoned in N.H.
DATELINE: CONCORD, N.H., Dec. 4
New Hampshire's Governor and Council Wednesday conditionally pardoned a 33-year-old woman who has been in prison for 10 years for killing her abusive husband while he slept. June Briands' petition for "understanding and mercy" because she had been physically and sexually abused by her husband had been supported by several women's groups, political and religious leaders. "Had I not been so physically, sexually and emotionally tormented by him, this tragedy would never have happened," Briand wrote in her petition, heard by Gov. Stephen Merrill and the Council in September. Merrill and the Council specifically granted Briand a "conditional pardon" that means she remains in the women's prison in Goffstwon until April 1997, and then placed on work release while remaining in prison through April 8, 1998. She will be on probation for 18 years and then parole for the rest of her life. Merrill, calling the decision "probably the toughest decision a governor and council has ever had to make," said "There is clear evidence that June Briand's state of mind, as a battered wife, caused her to shoot her husband." "We unanimously agree, " Merrill said, "that June Briand presently bears little resemblance to the tormented perpetrator of the terrible act in question." He said it "amounted to additional prison time to decry the violent act on her part while acknowledging the circumstances created by domestic violence and the unfortunate actions which battered women feel they must make out of desperation of despondency." Briand said she had been punished enough for shooting James "Jimmy" Briand four times, in what her supporters said was a marriage where she suffered repeated beatings, verbal and sexual abuse. Briand pleaded guilty February 1987 to second degree murder and was sentenced to 15 years to life in prison. She would not have been eligible for parole until the year 2002. The state's attorney general and the victim's family vehemently opposed any pardon for Briand. Briand is the third woman in New Hampshire pardoned for killing her husband because of abuse. Since 1978, according to the National Council for the Defense of Battered Women in Philadelphia, 103 other women in 23 states have received clemency under similar circumstances.
Copyright 1984 U.P.I
April 30, 1984, Monday, AM cycle
SECTION: Domestic News
LENGTH: 273 words
HEADLINE: Woman who killed husband released from prison
DATELINE: NASHVILLE, Tenn.
A cancer-stricken woman who claims she killed her husband to end 27 years of abuse, walked sobbing from prison under executive clemency Monday and vowed to crusade for battered women.
"We've all paid a terrible price. So many people have and we want to stop it," said Kaghryn Louise England, 43, who served 16 months of a life sentence at the Tennessee State Prison for Women.
During her trial, Mrs. England admitted she shot to death her husband in 1982 but claimed he abused her repeatedly during their 27-year marriage.
Gov. Lamar Alexander commuted her life sentence April 12 but rejected her battered-wife defense.
"Mrs. England is being granted clemency because, and only because, she is seriously ill," the governor said.
"Look, no handcuffs," said Mrs. England as she left prison for a tearful reunion with her three children and grandson.
Mrs. England, who has breast cancer and is undergoing chemotherapy, said she plans to staff hotlines at the Shelter for Battered Women in Nashville.
"We aren't trying to make it lawful for a woman to kill her husband or lover," said Mrs. England, her eyes filled with tears and her voice wavering. "We just want to stop it (abuse) before it reaches that stage."
"I'm leaving a lot of dear friends behind," she said as other women inmates waved good-bye. "I'm a little nervous to go on the outside but I'm so glad to see my children."
Mrs. England shot her husband with a deer rifle while he slept and waited in the house until he bled to death.
In her trial, she claimed that her husband routinely abused her and took out his rage on the children as well.
Copyright 1991 U.P.I.
February 20, 1991, Wednesday, BC cycle
SECTION: Domestic News
LENGTH: 387 words
HEADLINE: Governor commutes women inmates' sentences
DATELINE: ANNAPOLIS, Md.
Gov. William Donal Schaefer, saying "it's the right thing to do," commuted the sentences of eight women imprisoned for assaulting or killing abusive husbands and boyfriends.
One of the women whose sentences Schaefer commuted was convicted of first-degree murder, five for second-degree murder and the others for battery or voluntary manslaughter.
Schaefer visited the Maryland Correctional Institution for Women in Jessup in January at the request of Rep. Constance Morella, R-Md., met with five women who represented a coalition of abuse victims and asked state officials to review their sentences.
The review by Bishop Robinson, Public Safety and Correctional Services secretary, and member of the Maryland Parole Commission led to a recommendation for clemency for the eight, and an updated parole hearing for a ninth.
"We think, after a thorough review of their cases, it's the right thing to do," Schaefer said during a Tuesday news conference when he announced the commutations. "They served enough time."
The imprisoned women's experiences were brought to Schaefer's attention by a group of lawyers from the House of Ruth, a Baltimore shelter for battered women, and the Public Justice Center, a Baltimore legal services group.
Schaefer says he wants the sentence of the ninth woman, Carolyn Wallace of Baltimore County, and the sentences being served by the remaining three women to be reviewed again by Robinson and the Parole Commission.
"I think, as a result of recommendations by the House of Ruth, something will be done," the governor said.
The eight women, who were serving sentences ranging from 10 months to 40 years, will be released this week, said Mary Ann Saar, a Schaefer aide. Most of the women were convicted of murdering their abusive lovers.
Once released, the eight will remain on parole for the balance of their sentences, officials said. Schaefer aides said the circumstances of the commutation are a first for Maryland, and parallel a decision by former Ohio Gov. Richard Celeste to release 25 women inmates in December.
Schaefer was accompanied at his news conference by Miss America Marjorie Vincent--who has made the issue of spousal abuse the focus of her yearlong reign--also announced a variety of initiatives aimed at domestic violence.
Copyright 1993 The Time Inc. Magazine Company
January 18, 1993, U.S. Edition
SECTION: COVER STORY;Pg. 38
LENGTH: 5618 words
HEADLINE: 'Til Death Do Us Part; When a woman kills an abusive partner, is it an act of revenge or of self defense? A growing clemency movement argues for a new legal standard.
BYLINE: BY NANCY GIBBS:
THE LAW HAS ALWAYS MADE ROOM FOR KILLER. SOLDIERS KILL THE nation's enemies, executioners kill it's killers, police officers under fire may fire back. Even a murder is measured in degrees, depending on the kind of the criminal and the character of the crimes. And sometime this spring, in a triumph of pity over punishment, the law may just find room for Rita Collins.
"They all cried, didn't they? But not me," she starts out, to distinguish herself from her fellow inmates in a Florida prison, who also have stories to tell. "No one will help me. No one will write about me. I don't have a dirty story. I wasn't abused as a child. I was a respectable government employee, employed by the Navy in a high position in Washington."
Her husband John was a military recruiter, a solid man who had a way with words. "He said I was old, fat, crazy and had no friends that were real friends. He said I needed him and he would take care of me." She says his care included threats with a knife, punches, a kick to the stomach that caused a hemorrhage. Navy doctors treated her for injuries to her neck and arm. "He'd slam me up against doors. He gave me black eye, bruises. Winter and summer, I'd go to work like a Puritan, with long sleeves. Afterward he's soothe me, and I'd think, "He's a good man. What did I do wrong?
The bravado dissolves, and she starts to cry.
"I was envied by other wives. I felt ashamed because I didn't appreciate him." After each beating comes apologies and offerings, gifts, a trip. "It's like blackmail. You think it's going to stop, but it doesn't." Collins never told anyone--not her friends in the church choir, not even a son by her first marriages. "I should have, but it was the humiliation of it all. I'm a professional woman. I didn't want people to think I was crazy." But some of them knew anyway; they had seen the bruises, the black eye behind the dark glasses.
She tried to get out. She filed for divorce, got a restraining order, filed an assault-and-battery charge against him, forced him from the house they had bought with a large chunk of her money when they retired to Florida. But still, she says, he came, night after night, banging on windows and doors, trying to break the locks.
It wasn't her idea to buy a weapon. "The police did all they could, but they had no control. They felt sorry for me. They told me to get a gun." She still doesn't remember firing it. She says she remember her husband's face, the glassy eyes, a knife in his hands. "To this day, I don't remember pulling the trigger."
The jury couldn't figure it out either. At Collins' first trial, for first-degree murder, her friends, a minister, her doctors and several experts testified about her character and the violence she had suffered. The prosecution played tapes of her threatening her husband over the phone and portrayed her as a bitter, unstable woman who had bought a gun, lured him to the house and murdered him out of jealousy and anger over the divorce. That trial ended with a hung jury. At her second, nine men and three women debated just two hours before finding her guilty of the lesser charge, second-degree murder. Collins' appeals were denied, and the parole board last year recommended against clemency. Orlando prosecutor Dorothy Sedgwick is certain that justice was done. "Rita Collins is a classic example of how a woman can decide to kill her husband and use the battered woman's syndrome as a fake defense," she says. "She lured him to his death. He was trying to escape her." Collins says her lawyers to everything: the $125,000 three-bedroom house with a pool, $98,000 in cash. "I've worked since I was 15, and i have nothing," she says. "The Bible says, 'Thou shalt not kill,' and everybody figures if you're in here, you're guilty. But I'm not a criminal. Nobody cares if I die in here, but if I live, I tell you one thing: I'm not going to keep quiet."
If in the next round of clemency hearings on March 10, Governor Lawton Chiles grants Collins or any other battered woman clemency., Florida will join 26 other states in a national movement to take another look at the cases of abuse victims who kill their abusers. Just before Christmas, Missouri's conservative Republican Governor John Ashcroft commuted the life sentences of two women who claimed they had killed their husbands in self-defense. After 20 years of trying, these women have made a Darwinian claim for mercy: Victims of perpetual violence should be forgiven if they turn violent themselves.
More American women--rich and poor alike-- are injured by the men in their life than by car accidents, muggings and rape combined. Advocated and experts liken the effect over time to a slow-acting poison. "Most battered women aren't killing to protect themselves from being killed that very moment," observes Charles Ewing, a law professor at SUNY Buffalo. "What they're protecting themselves from is slow but certain destruction, psychologically and physically. There's no place in the law for that."
As the clemency movement grows, it challenges a legal system that does not always distinguish between a crime and a tragedy. what special claims should victims of fate, poverty, violence, addiction be able to make upon the sympathies of juries and the boundaries of the law? In cases of domestic assaults, some women who suffered terrible abuse resorted to terrible means to escape it. Now the juries, and ultimately the society they speck for, have to find some way to express outrage at the brutality that women and children face every day, without accepting murder as a reasonable response to it.
But until America finds a better way to keep people safe in their own homes or offers them some means of surviving if they flee, it will be hard to answer the defendants who ask their judges, "What choice did I really have?"
HOME IS WHERE THE HURT IS
Last year the A.M.A., backed by the Surgeon General, declared that violent men constitute a major threat to women's health. The National League of Cities estimates that as many as half of all women will experience violence at some time in their marriage. Between 22% and 35% of all visits by females to emergency rooms are for injuries from domestic assaults. Though some studies have found that women are just as likely to start a fight as men, others indicate they are six times as likely to be seriously injured in one. Especially grotesque is the brutality reserved for pregnant women: the March of Dimes has concluded that the battering of women during pregnancy causes more birth defects than all the diseases put together for which children are usually immunized. Anywhere from one-third to as many as half of all female murder victims are killed by their spouses or lovers, compared with 4% of male victims.
"Male violence against women is at least as old an institution as marriage," says clinical psychologist Gus Kaufman Jr., co-founder of Men Stopping Violence, and Atlanta clinic established to help men face their battering problems. So long as a woman was considered her husband's legal property, police and the courts were unable to prevent--and unwilling to punish--domestic assaults. Notes N.Y.U. law professor Holly Maguigan: "We talk about the notion of the rule of thumb, forgetting that it had to do with the restriction on a man's right to use a weapon against his wife: he couldn't us a rod that was larger than his thumb." In 1874 North Carolina became one of the first states to limit a man's right to beat his wife, but lawmakers noted that unless he beat her nearly to death "it is better to draw the curtain, shut out the public gaze and leave the parties to forget and forgive."
Out of that old reluctance grew the modern double standard. Until the first wave of legal reform in the 1970s, an aggravated assault against a stranger was a felony, but assaulting a spouse was considered a misdemeanor, which rarely landed the attacker in court, much less in jail. That distinction, which still exists in most states, does not reflect the danger involved: a study by the Boston Bar Association found that the domestic attacks were at least as dangerous as 90% of felony assaults. "Police seldom arrest, even when there are injuries serious enough to require hospitalization of the victim," declared the Florida Supreme Court in a 1990 gender-bias study, which also noted the tendency of prosecutors to drop domestic-violence cases.
Police have always hated answering complaints about domestic disputes. Experts acknowledge that such situations are often particularly dangerous, but suspect that there are other reasons for holding back. "This issues pushes buttons, summons up personal emotion, that almost no other issue does for police and judges," says Linda Osmundson, who co-chairs a battered wives' task force for the National Coalition Against Domestic Violence. "Domestic violence is not seen as a crime. A man's home is still his castle. THere is a system that really believes that women should be passive in every circumstance." And it persists despite a 20-year effort by advocates to transform attitudes toward domestic violence.
While most of the effort has been directed at helping women survive, and escape, abusive homes, much of the publicity has fallen on those rare cases when women resort to violence themselves. Researcher and author Angela Browne points out that a woman is much more likely to be killed by her partner than to kill him. In 1991, when some 4 million women were beaten and 1,320 murdered in domestic attacks, 622 women killed their husbands or boyfriends. Yet the women have become the lightning rods for debate, since their circumstances, and their response, were most extreme.
WHAT CHOICE DID SHE HAVE?
"There is an appropriate means to deal with one's marital problems--legal recourse. Not a .357 Magnum," argues former Florida prosecutor Bill Catto. "If you choose to use a gun to end a problem, then you must suffer the consequences of your act." Defense lawyers call it legitimate self-protection when a victim of abuse fights back--even if she shoots her husband in his sleep. Prosecutors call it an act of vengeance, and in the past, juries have usually agreed and sent the killer to jail. Michael Dowd, director of the pace University Battered Women's Justice Center, has found that the average sentence for a woman who kills her mate is 15 to 20 years; for a man, 2 to 6.
The punishment is not surprising, since many judges insist that evidence of past abuse, even if it went on for years, is not relevant in court unless it occurred around the time of the killing. It is not the dead husband who is on trial, they note, but the wife who pulled the trigger. "Frankly, I feel changing the law would be authorizing preventive murder," argued Los Angeles Superior Court Judge Lillian Stevens in the Los Angeles Times. "The only thing that really matters is, was there an immediate danger? There can't be an old grievance." And even if a woman is allowed to testify about past violence, the jury may still condemn her response to it. If he was really so savage, the prosecutor typically asks, why didn't she leave, seek shelter, call the police, file a complaint?
"The question presumes she has good options," says Julie Blackman, a New Jersey-based social psychologist who has testified as an expert witness in abuse and murder cases. "Sometimes, they don't leave because they have young children and not other way to support them, or because they grow up in cultures that are so immersed in violence that they don't figure there's any place better to go, or because they can't get apartments." The shelter facilities around he country are uniformly inadequate: New York has about 1,300 beds for a state with 18 million people. In 1990 the Baltimore zoo spent twice as much money to care for animals as the state of Maryland spent on shelters for victims of domestic violence.
Last July, even as reports of violence continued to multiply, the National Domestic Violence Hotline was disconnected. The 800 number had received as many as 10,000 calls a month from across the country. Now, says Mary Ann Bohrer, founder of the New York City-based Council for Safe Families, "there is not number, no national resource, for people seeking information about domestic violence."
The other reason women don't flee is because, ironically , they are afraid for their life. Law-enforcement experts agree that running away greatly increases the danger a woman faces. Angered at the loss of power and control, violent men often try to track down their wives and threaten them, or their children, if they don't come home. James Cox III, an unemployed dishwasher in Jacksonville, Florida, was determined to find his ex-girlfriend, despite a court order to stay away from her. Two weeks ago, he forced her mother at gunpoint to tell him the location of the battered women's shelter where her daughter had fled, and stormed the building, firing a shotgun. Police shot him dead. "This case illustrates the extent to which men go to pursue their victims," said executive director Rita DeYoung. "It creates a catch-22 for all battered women. Some will choose to return to their abusers, thinking they can control their behavior."
"After the law turns you away, society closes its doors on you, and you find yourself trapped in a life with someone capable of homicide. What choice in the end was I given?" asks Shalunda Burt, 21, who is serving 17 years for shooting her boyfriend James Fairley two years ago in Bradenton, Florida. She was three months pregnant at the time. A week after she delivered their first baby, James raped her and ripped her stitches. Several times she tried to leave or get help. "I would have a bloody mouth and a swollen face. All the police would do is give me a card with a deputy's name on it and tell me it was a lovers'' quarrel.' The battered women's shelter was full. All they could offer was a counselor on the phone."
Two weeks before the shooting, the police arrested them both: him for aggravated assault because she was pregnant, her for assault with a deadly missile and violently resisting arrest. She had thrown a bottle at his truck. Her bail was $10,000; his was $3,000. He was back home before she was, so she sent the baby to stay with relatives while she tried to raise bail. The end came on a Christmas weekend. After a particularly vicious beating, he followed her to her aunt's house. When he came at her again, she shot him. "They say I'm a violent person, but I'm not. I didn't want revenge. I just wanted our." Facing 25 years, she was told by a female public defender to take a plea bargain and 17 years. "I wanted to fight. But she said I'd get life of the electric chair. I was in a no-win situation."
It is hard for juries to understand why women like Burt do not turn to the courts for orders of protection. But these are a makeshift shield at best, often violated and hard to enforce. Olympic skier Patricia Kastle had a restraining order when her former husband shot her. Lisa Bianco in Indiana remained terrified of her husband even after he was sent to jail for eight years. When prison officials granted Alan Matheney and eight-hour pass in March 1989, he drove directly to Bianco's home, broke in and beat her to death with the butt of a shotgun. Last March, Shirley Lowery, a grandmother of 11, was stabbed 19 times with a butcher knife by her former boyfriend in the hallway of the courthouse where she had gone to get an order of protection.
THE MIND OF THE VICTIM
Defense lawyers have a hard time explaining to juries the shame, isolation and emotional dependency that bind victims to their abusers. Many women are too proud to admit to their family or friends that their marriage is not working and blame themselves for its failure even as they cling to the faith that their violent lover will change. "People confuse the woman's love for the man with love of abuse," says Pace's Dowd. "It's not the same thing. Which of us hasn't been involved in a romantic relationship where people say this is no good for you?"
It was Denver psychologist Lenore Walker, writing in 1984, who coined the term battered-woman syndrome to explain the behavior of abuse victims. Her study discussed the cycle of violence in battering households: first a period of growing tension; then a violent explosion, often unleashed by drugs or alcohol; and finally a stage of remorse and kindness. A violent man, she argues, typically acts out of a powerful need for control--physical, emotional, even financial. He may keep his wife under close surveillance, isolating her from family and friends, forbidding her to work or calling constantly to check on her whereabouts. Woven into the scrutiny are insults and threats that in the end can destroy a woman's confidence and leave her feeling trapped between her fear of staying in a violent home--and her fear of fleeing it.
Many lawyers say it is virtually impossible to defend a battered woman without some expert testimony about the effect of that syndrome over time. Such testimony allows attorneys to stretch the rules governing self-defense, which were designed to deal with two men caught in a bar fight, not a woman caught in a violent relationship with a stronger man.
In a traditional case of self-defense, a jury is presented a "snapshot" of a crime: the mugger threatens a subway rider with a knife; the rider pulls a gun and shoots his attacker. It is up to the jurors to decide whither the danger was real and immediate and whether the response was reasonable. A woman who shoots her husband while he lunges at her with a knife should have little trouble claiming that she acted in self-defense. Yet lawyers still find jurors to be very uncomfortable with female violence under any circumstances, especially violence directed at a man she may have lived with for years.
Given that bias, it is even harder for a lawyer to call it self-defense when a woman shoots a sleeping husband. The danger was hardly immediate, prosecutors argue, nor was the lethal response reasonable. Evidence about battered-women syndrome may be the only way to persuade a jury to identify with a killer. "Battered women are extraordinarily sensitive to cues of danger, and that's how they survive," says Walker. "That is why many battered women kill, not during what looks like the middle of a fight, but when the man is more vulnerable or the violence is just beginning."
A classic self-defense plea also demands a fair fight. A person who is punched can punch back, but if he shoots, he runs the risk of being charged with murder or manslaughter. This leaves women and children, who are almost always smaller and weaker than their attackers, in a bind. THey often see no way to escape and assault without using a weapon and the element of surprise--arguing, in essence, that their best hope of self-defense was s pre-emptive strike. "Morally and legally a a woman should not be expected to wait until his hands are around her neck," argues Los Angeles defense attorney Leslie Abramsom. "Say a husband says, 'When I get up tomorrow morning, I'm going to beat the living daylights out of you.'" says Joshua Dressler, a law professor and Wayne State University who specializes in criminal procedures. "If you use the word imminent, the woman would have to wait until the next morning and, just as he's about to kill her, then use self-defense."
That argument, prosecutors retort, is an invitation to anarchy. If a woman has survived past beatings, what persuaded her that this time was different, that she had no choice but to kill or be killed? The real catalyst, they suggest, was not her fear but her fury. Prosecutors often turn a woman's history of abuse into a motive for murder. "What some clemency advocates are really saying is that the s.o.b. deserved to die and why should she be punished for what she did," argues Dressler. Unless the killing came in the midst of a violent attack, it amounts to a personal death-penalty sentence. "I find it very hard to say that killing the most rotten human being in the world when he's not currently threatening the individual is the right thing to do."
Those who oppose changes in the laws point out that many domestic disputes are much more complicated than the clemency movement would suggest. "We've got to stop perpetuating the myth that men are all vicious and that women are all Snow White," says sonny Burmeister, a divorced father of three children who, as president of the Georgia Council for Children's Rights in Marietta, lobbies for equal treatment of men involved in custody battles. He recently sheltered a husband whose wife had pulled a gun on him. When police were called, their response was "So?" Says Burmeister: "We perpetuate this macho, chauvinistic, paternalistic attitude for men. We are taught to be protective of the weaker sex. We encourage women to report domestic violence. We believe men are guilty. But women are just as guilty."
He charges that feminists are trying to write a customized set of laws. "If Mom gets mad and shoots Dad, we call is PMS and point out that he hit her six month ago," he complains. "If Dad gets mad and shoots Mom, we call it domestic violence and charge him with murder. We paint men as violent and we paint women as victims, removing them from the social and legal consequences of their actions. I don't care how oppressed a woman is; should we condone premeditated murder?"
Only nine states have passes laws permitting expert testimony on battered-woman syndrome and spousal violence. In most cases it remains a matter of judicial discretion. One Pennsylvania judge ruled that testimony presented by a prosecutor show that the defendant had not been beaten badly enough to qualify as a battered woman and therefore could not have that standard applied to her case. President Bush signed legislation in October urging states to accept expert testimony in criminal cases involving battered women. The law calls for development of training materials to assist defendants and their attorneys in using such testimony in appropriate cases.
Judge Lillian Stevens instructed the jury on the rules governing self-defense at the 1983 trial of Brenda Clubine, who claimed that she killed her police-informant husband because he was going to kill her. Clubine says that during an 11-year relationship, she was kicked, punched, stabbed, had the skin on one side of her face torn off, a lung pierced, ribs broken. She had a judge's order protecting her and had pressed charges to have her husband arrested for felony battery. But six weeks later, she agreed to meet him in a motel, where Clubine alleges that she felt he life was in danger and hit him over the head with a wine bottle, causing a fatal brain hemorrhage. "I didn't mean to kill him," she says. "He had hit me several times. Something inside me snapped; I grabbed the bottle and swung." The jury found Clubine guilty of second-degree manslaughter, and Judge Stevens sentenced her 15 years to life. She says Clubine drugged her husband into lethargy before fatally hitting him. "It seemed to me [the beatings] were some time ago," Stevens told the Los Angeles Times. Furthermore, she added, "there was evidence that a lot of it was mutual."
It is interesting that within the legal community there are eloquent opponents of battered-woman syndrome--on feminist grounds--who dislike the label's implication that all battered women are helpless victims of some shared mental disability that prevents them from acting rationally. Social liberals, says N.Y.U.'s Maguigan, typically explain male violence in terms of social or economic pressures. Gemale violence, on the other hand, is examined in psychological terms. "They look to what's wrong with her and reinforce a notion that women who use violence are, per se, unreasonable, that something must be wrong with her because she's not acting like a good woman, in the way that women are socialized to behave."
Researcher Charles Ewing compared a group of 100 battered women who had killed their partners with 100 battered women who hadn't taken that fatal step. Women who resorted to violence were usually those who were most isolated, socially and economically; they had been the most badly beaten, their children had been abused, and their husbands were drug and alcohol abuser. That is, the common bond was circumstantial, not psychological. "They're not pathological," says social psychologist Blackman. "They don't have personality disorders. They're just beat up worse."
Women who have endured years of beatings without fighting back may reach the breaking point once the abuse spreads to others they love. Arlene Caris is serving a 25-year sentence in New York for killing her husband. He had tormented her for yours, both physically and psychologically. Then she reportedly learned that he was sexually abusing her granddaughter. On the night she finally decided to leave him, he came at her in a rage. She took a rifle, shot him, wrapped him in bed sheets and then hid the body in the attic for five months.
Offering such women clemency, the advocates note, is not precisely the same as amnesty; the punishment is reduced, though the act is not excused. Clemency may be most appropriate in cases where all the circumstances of the crimes were not heard in court. The higher courts have certainly sent the message that justice is not uniform in domestic violence cases. One study found that 40% of women who appeal their murder convictions get the sentence thrown out. Compared with an 8.5% reversal rate for homicides as a whole. "I've worked on cases involving battered women who have talked only briefly to their lawyers in the courtroom for 15 or 20 minutes and then they take a plea and do 15 to life," recalls Blackman. "I see women who are Hispanic and don't speak English well, or women who are very quickly moved through the system, who take pleas and do substantial chunks of time, often without getting any real attention paid to the circumstances of their case."
The first mass release in the U.S. came at Christmas in 1990, when Ohio Governor Richard Celeste commuted the sentences of 27 battered women serving time for killing or assaulting male companions. His initiative was born of long-held convictions. As a legislator in the early '702, he and his wife helped open a women's center in Cleveland and held hearings on domestic violence. When he became lieutenant governor in 1974 and moved to Colombus, he and his wife rented out their home in Cleveland as emergency shelter for battered women. He and the parole board reviewed 107 cases, looking at evidence of past abuse, criminal record, adjustment to prison life and participation in post release programs before granting the clemencies. "The system of justice had not really worked on their cases," he says. "They had not had the opportunity for a fair trial because vitally important evidence affecting their circumstances and the terrible things done to them was not presented to the jury."
The impending reviews in other states have caused some prosecutors and judges to sound an alarm. They are worried that Governors' second-guessing the courts undermines the judicial system and invites manipulation by prisoners. "Anybody in the penitentiary, if they see a possible out, will be claiming, 'Oh, I was a battered woman,'" says Dallas assistant district attorney Norman Kinne. "They can't take every female who says she's a battered woman and say, 'Oh, we're sorry, we'll let you out.' If they're going to do it right, it's an exhaustive study."
Clemency critics point to one woman released in Maryland who soon afterward boasted about having committed the crimes. Especially controversial are women who have been granted clemency fro crimes that were undeniably premeditated. Delia Alaniz hired a contract killer to pretend to rob her home and murder her husband in the process. He had beaten her and their children for years, sexually abusing their 14-year-old daughter. The prosecutor from Skagit County, Washington, was sufficiently impressed by the evidence of abuse that he reduced the charge from first-degree murder and life imprisonment to second-degree manslaughter with a sentence of 10 to 14 years. In October 1989, Governor Booth Gardner granted her clemency. "Delia was driven to extremes. The situation was desperate, and she viewed it that way," says Skagit County public defender Robert Jones. "The harm to those kids having a mom in prison was to much considering the suffering they went through. As a state, we don't condone what she did, but we understand and have compassion."
THE ALTERNATIVES TO MURDER
There is always a risk that the debate over clemency will continue to obscure the missing debate over violence. "I grew up in a society that really tolerated a lot of injustice when it came to women," says Pace University's Dowd. "It was ingrained as a part of society. This isn't a woman's issue. It's a human-rights issue. Men should have as much to offer fighting sexism as they do racism because the reality is that it's our hands that strike the blows." The best way to keep battered women out of jail is to keep them from being battered in the first place.
In a sense, a society's priorities can be measured by whom it punishes. A survey of the population of a typical prison suggests that violent husbands and fathers are still not viewed as criminals. In New York State about half the inmates are drug offenders, the result of a decade-long War on Drugs that demanded mandatory sentences. A War on Violence would send the same message, that society genuinely abhors parents who beat children and spouses who batter each other, and is willing to punish the behavior rather than dismiss it.
Minnesota serves as a model for other states. In 1981 Duluth was the first U.S. city to institute mandatory arrests in domestic disputes. Since then about half the states have done the same, which means that even if a victim does not with to press charges, the police are obliged to make and arrest if they see evidence of abuse. Advocates in some Minnesota jurisdictions track cases from the first call to police through prosecution and sentencing, to try to spot where the system is failing. Prosecutors are increasingly reluctant to plea-bargain assault down to disorderly conduct. They have also found it helpful to use the arresting officer as complainant, so that their case does not depend on a frightened victim's testifying.
Better training of police officers, judges, emergency room personnel and other professionals is having an impact in many cities. "We used to train police to be counselors in domestic abuse cases," says Osmundson. "No longer. We teach them to make arrests." In Jacksonville, Florida, new procedures helped raise the arrest rate from 25% to 40%. "Arrests send a message to the woman that help is available and to men that abuse is not accepted," says shelter executive director DeYoung, who also serves as president of the Florida Coalition Against Domestic Violence. "Children too see that it's not accepted and are more likely to grow up not accepting abuse in the home."
Since 1990 at least 28 states have passed "stalking laws" that make it a crime to threaten, follow or harass someone. Congress this month may take up the Violence Against Women bill, which would increase penalties for federal sex crimes; provide $300 million to police, prosecutors and courts to combat violent crimes against women; and reinforce state domestic violence laws. Most women, of course, are not looking to put their partners in jail; they want the violence to stop.
A Minneapolis project was founded in 1979 at the prompting of women in shelters who said they wanted to go back to their partners if they would stop battering. Counselors have found that men resort to violence because they want to control their partners, and they know they can get away with it--unlike in other relationships. "A lot of people experience low impulse control, fear of abandonment, alcohol and drug addiction, all the characteristics of a batterer," says Ellen Pence, training coordinator for the Domestic Abuse Intervention Project in Duluth. "However, the same guy is not beating up his boss."
Most men come to the program either by order of the courts or as a condition set by their partners. The counselors start with the assumption that battering is learned behavior. Eighty percent of the participants grew up in a home where they saw or were victims of physical, sexual or other abuse. Once imprinted with that model, they must be taught to recognize warning signs and redirect their anger. "We don't say, 'Never get angry,'" says Carol Arthur, the Minneapolis project's executive director. "Anger is a normal, healthy emotion. What we work with is a way to express it." Men describe to the group their most violent incident. One man told about throwing food in his wife's face at dinner and then beating her to the floor only to turn and see his two small children huddled terrified under the table. Arthur remembers his self-assessment at that moment: "My God, what must they be thinking about me? I didn't want to be like that."
If the police and the courts crack down on abuser, and programs exist to help change violent behavior, victims will be less likely to take--and less justified in taking--the law into their own hands. And once the cycle of violence winds down in this generation, it is less likely to poison the next. That would be a family value worth fighting for.
Time Magazine, January 18, 1993, U.S. Edition
Article: 'Til Death Do Us Part: When a woman kills an abusive partner, is it an act of revenge or of self-defense? A growing clemency movement argues for a new legal standard.
Reprieves, commutations or pardons: MCLA § 791.244; MCL § 816
R 791.7760 Pardons, reprieves, and commutations
Rule 760. (1) A person who is convicted of a crime may apply for a pardon, reprieve, or commutation by filing a notarized copy of the appropriate application with the parole board. The application shall contain all of the following information:
(a) Date of conviction and sentence imposed for the crime for which the person is seeking clemency.(b) Personal history, including all of the following information:
(iii) Marital status
(iv) Number of dependents
(v) If on parole or discharged from sentence, employment history and character references.
(c) Criminal record
(d) Circumstances of crime for which the person is seeking clemency.
(e) Reasons for seeking clemency
(f) Other relevant information requested by the parole board.
(2) Upon receipt of an application for pardon, reprieve, or commutation, the parole board shall handle the application pursuant to the procedures contained in section 44 of Act No. 232 of the Public Acts of 1953, as amended, being S791.244 of the Michigan Compiled Laws, except that the parole board is not required to act upon an application that is substantially identical to one which has been denied within 2 years of the date of the present application.
(3) If a public hearing is held on an application for pardon, reprieve, or commutation, notice of the hearing shall be provided as set forth in section 44(2)(g) of Act No. 232 of the Public Acts of 1953, as amended, being S791.244(2)(g) of the Michigan Compiled Laws, and shall also be provided to the public press.
(4) If a public hearing is held, it shall be conducted by at least 1 member of the parole board who will be involved in the formal recommendation to grant or deny the application for pardon, reprieve, or commutation. The parole board shall give liberal construction to any technical rules of evidence.
(5) At a public hearing on the applicant's petition for pardon, reprieve, or commutation, the applicant may testify and present relevant witnesses and oral documentary evidence. The applicant may be represented by retained or appointed counsel. The public shall be represented by the department of attorney general. The presiding parole board member shall summarize all statements and documents presented both for and against the application for clemency.
(6) A person who is a victim of the applicant's offense, as defined in section 2(l)(i) of Act No. 87 of the Public Acts of 1985, as amended, being S780.752(l)(i) of the Michigan Compiled Laws, shall be given an opportunity to address and be questioned by the parole board or if a public hearing is conducted, to submit written testimony. The victim shall be given notice if a reprieve, commutation, or pardon has been granted.
History: 1954 ACS 93, Eff. Nov. 30, 1977;1979 AC; 1988 MR 12, Eff. Dec. 29, 1988; 1996 MR 1, Eff. Jan.26, 1996.
R 791.654 Inmate Visitors
Rule 654. (1) The administrator shall uniformly set the number of permissible visits for each inmate and the number of visitors permitted for each visit. Visits should be governed by administrative constraints and space availability.
(2) Visits shall be allowed for identified members of an inmate's immediate family, his counsel, clergyman, and in the case of an inmate awaiting trial, persons with whom he may need to confer in order to prepare the defense of his case. Where security permits, provision may be made for family members under 18 years of age and established friends to visit inmates.
(3) An inmate shall not be denied visits by properly identified clergy, counsel of his own choosing, or counsel appointed by the court. These conversations shall not be monitored.
(4) The administrator may deny a visit to an inmate when he has reasonable grounds to believe that the visit might endanger the good order or the security of the facility. Reasons for denial of a visit shall be in writing.
(5) A visitor shall register, giving his name, address, relationship and nature of business. Visits shall be under supervision.
(6) A visitor shall not be allowed inside an inmate living area.
History: 1954 ACS 84, Eff. Sept. 3, 1975; 1979 AC.
R 791.2220 Business hours of facilities; tours; visits.
Rule 220. (1) the normal business hours of department facilities shall be from 8 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.
(2) Persons desiring to conduct business in a particular facility during nonbusiness hours shall request permission from the head of the facility.
(3) Professional and college students in the areas of criminal justice and corrections may request permission to tour a particular facility from the head of that facility.
(4) Persons who wish to visit a departmental facility, but who do not meet the criteria of subrule (2) or (3) or this rule, shall request permission from the director.
(5) The department shall establish reasonable policies regarding news media visits to department facilities.
(6) Visits during disturbances may be permitted only with prior approval from the warden.
(7) All visitors inside the security perimeter of any facility classified above level I shall be escorted by facility staff.
(8) Visits with prisoners are governed by the provisions of R 791.6607, R 791.6609, R 791.6611, and R 791.6614.
(9) Notwithstanding the provisions of subrule (2), (6), or (7) of this rule, staff of the office of the legislative corrections ombudsman shall have access to all facilities under the control of the department as set
Reprieves, commutations or pardons: MCLA § 791.244; MCL § 816
Michigan Compiled Laws Annotated
Chapter 791. Department of Corrections
Department of Corrections
Chapter III. Bureau of Pardons and Paroles; Parole Board
Copr. West Group 1997. All rights reserved.
Current through P.A. 1997, No. 25
791.244. Reprieves, commutations, or pardons; interviews, application or initiation; parole board duties; review, investigation, public hearing, notice to victim, recommendations; public record
Sec. 44. (1) Subject to the constitutional authority of the governor to grant reprieves, commutations, and pardons, 1 member of the parole board shall interview a prisoner serving a sentence for murder in the first degree or a sentence of imprisonment for life without parole at the conclusion of 10 calendar years and there after as determined appropriate by the parole board, but not later than every 5 years until such time as the prisoner is granted a reprieve, commutation, or pardon by the governor, or is deceased. The interview schedule prescribed in this subsection applies to all prisoners to whom this section is applicable, whether sentenced before, on, or after the effective date of the 1992 amendatory act that amended this subsection.
(2) Upon is own initiation or, or upon receipt of any application for, a reprieve, commutation, or pardon, the parole board shall do all of the following, as applicable:
(a) Not more than 60 days after receipt of an application, conduct a review to determine whether the application for a reprieve, commutation, or pardon has merit.
(b) Deliver either the written documentation of the initiation of the original application with the parole board's determination regarding merit, to the governor and retain a copy of each in its file, pending an investigation and hearing.
(c) Within 10 days after initiation, or after determining that an application has merit, forward to the sentencing judge and to the prosecuting attorney of the county having original jurisdiction of the case, or their successors in office, a written notice of the filing of the application or initiation, together with copies of the application or initiation, any supporting affidavits, and a brief summary of the case. Within 30 days after receipt of notice of the filing of any application or initiation, the sentencing judge and the prosecuting attorney, or their successors in office, may file information at their disposal, together with any objections, in writing, which they may desire to interpose. If the sentencing judge and the prosecuting attorney, or their successors in office, do not respond within 30 days, the parole board shall proceed on the application or initiation.
(d) If an application or initiation for commutation is based on physical or mental incapacity, direct the bureau of health care services to evaluate the condition of the prisoner and report on that condition. If the bureau of health care services determines that the prisoner is physically or mentally incapacitated the bureau shall appoint a specialist in the appropriate field of medicine, who is not employed by the department, to evaluate the condition of the prisoner and to report on that condition. These reports are protected by the doctor-patient privilege of confidentiality, except that these reports shall be provided to the governor for his or her review.
(e) Within 270 days after initiation by the parole board or receipt of an application that the parole board has determined to have merit pursuant to subdivision (a), make a full investigation and determination on whether or not to proceed to a public hearing.
(f) Conduct a public hearing not later than 90 days after making a decision to proceed with consideration of a recommendation for the granting of a reprieve, commutation, or pardon. The public hearing shall be held before a formal recommendation is transmitted to the governor. One member of the parole board who will be involved in the formal recommendation may conduct the hearing, and the public shall be represented by the attorney general or a member of the attorney general's staff.
(g) At least 30 days before conducting the public hearing, provide written notice of the public hearing by mail to the attorney general, the sentencing trial judge, and the prosecuting attorney, or their successors in office, and each victim who requests notice pursuant to the crime victim's rights act, Act No. 87 of the Public Acts of 1985, being sections 780.751 to 780.834 of the Michigan Compiled Laws.
(h) Conduct the public hearing pursuant to the rules promulgated by the department. Except as otherwise provided in this subdivision, any person having information in connection with the pardon, commutation, or reprieve shall be sworn as a witness. A person who is a victim shall be given an opportunity to address and be questioned by the parole board at the hearing or to submit written testimony for the hearing. In hearing testimony, the parole board shall give liberal construction to any technical rules of evidence.
(i) Transmit its formal recommendation to the governor.
(j) Make all data in its files available to the governor if the parole board recommends the granting of a reprieve, commutation, or pardon.
(3) Except for medical records protected by the doctor-patient privilege of confidentiality, the files of the parole board in cases under this section shall be matters of public record.
1997 Electronic Update
Amended by P.A.1982, No. 314, § 1, Imd. Eff. Oct. 15; P.A.1992, No. 181, § 1, Imd. Eff. Sept. 22, 1992.
<General Materials (GM) - References, Annotations, or Tables>
HISTORICAL AND STATUTORY NOTES
1997 Electronic Update
1982 Amendment. Rewrote the section.
The 1992 amendment rewrote this section, which prior thereto read:
"Subject to the constitutional authority of the governor to grant reprieves, commutations, and pardons, 1 member of the parole board shall interview a prisoner serving a sentence for murder in the first degree at the conclusion of 4 calendar years and biennially thereafter until such times as the prisoner is granted a reprieve, commutation, or pardon by the governor, or is deceased. Upon receipt of any application for reprieve, commutation, or pardon, the parole board shall:
"(a) Deliver the original application to the governor and retain a copy in its file, pending investigation and hearing.
"(b) Within 10 days after receipt of any application, forward to the sentencing judge and to the prosecuting attorney of the county having original jurisdiction of the case, or their successors in office, a written notice of the filing of the application, together with copies of the application, the supporting affidavits, and a brief summary of the case. Within 30 days after receipt of notice of the filing of any application, the sentencing judge and the prosecuting attorney, or their successors in office, may file information at their disposal, together with any objections, in writing, which they may desire to interpose. If the sentencing judge and the prosecuting attorney, or their successors in office, do not respond within 30 days, the parole board shall proceed on the application.
"(c) In all cases where a commutation application is based on physical or mental incapacity, direct the office of health care to evaluate the condition of the prisoner and report on that condition. If the office of health care determines that the applicant is physically or mentally incapacitated, the office shall appoint a specialist in the appropriate field of medicine, who is not employed by the department, to evaluate the condition of the prisoner and to report on that condition. These reports are protected by the doctor-patient privilege of confidentiality, except that the reports shall be provided to the governor for review.
"(d) In all cases where the parole board initiated or the applicant applies for a reprieve, commutation, or pardon, the parole board shall conduct a public hearing not later than 90 days after making a decision to proceed with consideration of a recommendation for executive clemency. The public hearing must be held before a formal recommendation of executive clemency is made. One member of the parole board may conduct the hearing, and the public shall be represented by the attorney general or a member of the attorney general's staff.
"(e) At least 5 days before a public hearing, written notice of the public hearing shall be transmitted by mail to the attorney general, the sentencing trial judge, and the prosecuting attorney, or their successors in office.
"(f) A public hearing shall be conducted pursuant to the rules promulgated by the department. Any person having information in connection with any application for pardon, commutation, or reprieve, shall be sworn as a witness. In hearing testimony, the parole board shall give liberal construction to any technical rules of evidence.
"(g) If an application has been made for executive clemency, the parole board shall make a full investigation and determination on whether or not to proceed to a public hearing within 270 days of receipt of the application. If the parole board recommends executive clemency, it shall make all data in its files available to the governor. Except for medical records protected by the doctor-patient privilege of confidentiality, the files of the parole board in these cases shall be matters of public record."
1982 Main Volume
P.A.1953, No. 232, § 44, Eff. Oc. 2.
C.L.1948, § 791.244.
C.L.1970, § 791.244.
P.A.1937, No. 255, c.3, § 14.
P.A.1947, 2nd Ex.Sess., No. 4, § 42.
C.L.1948, § 791.42
return to top
1982 Main Volume
Article 5, § 14, provides:
"The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor."
Victims of crime, notice of public hearing regarding reprieve, commutation or pardon, see § 780.769.
MICHIGAN ADMINISTRATIVE CODE
1997 Electronic Update
For Rules and Regulations, see Rules 791.1101 et seq., 791.7701 et seq., Michigan Administrative Code.
LAW REVIEW COMMENTARIES
Duties of prosecutor. John T. Hammond, 51 Mich.St.B.J. 40 (1972).
Executive pardons in the courts. 21 Mich.L.Rev. 683 (1923).
1982 Main Volume
Pardon and Parole 7, 12, 13.
C.J.S. Pardon and Parole § 4,13, 30 to 38, 43, 44, 47 to 53, 59.
M.L.P. Criminal Law § 718.
UNITED STATES SUPREME COURT
Preparoled conditional supervision, due process protections, see Young v. Harper, 1997, 117 S.Ct.1148.
NOTES OF DECISION
In general 1
The 1992 amendments to Michigan's parole laws governing frequency of parole review hearings violated ex post facto clause as applied retroactively to inmates who committed their crimes and were convicted between 1982 and 1992 and received sentences of mandatory life, parolable life, or long indeterminate sentences; under statute in effect at times inmates were convicted, inmates were to be interviewed after four years, and then every two years thereafter, while amendments changed schedule to ten years and five years thereafter, and there was sufficient nexus between parole hearings and parole eligibility under Michigan parole system that amendments could be considered to create sufficient risk of increased punishment, even though parole board retained discretion to schedule hearing more frequently and even though hearing was not required in order for inmate to be eligible for parole. Shabazz v. Gabry, E.D.Mich.1995, 900 F.Supp. 118, affirmed in part, reversed in part.
The 1992 amendments to Michigan's parole laws governing frequency of parole review hearings did not violate ex post facto clause as applied to inmates who committed their crimes and were convicted between 1977 and 1982 and received mandatory life sentences or inmates who committed their crimes and were convicted prior to 1977 and received mandatory life, parolable life, or long indeterminate sentences; at time inmates were convicted, frequency of hearings was determined by internal policies and procedures of corrections department or parole board rather than by statute or administrative regulation, and such policies and procedures were not "laws" within meaning of ex post facto clause. Shabazz v. Gabry, E.D.Mich.1995, 900 F. Supp. 118, affirmed in part, reversed in part.
1. In general
Denial of judicial review of parole board's decision denying inmate consideration for parole did not violate inmate's due process rights under federal or state law. Shields v. Department of Corrections (1983) 340 N.W.2d 95, 128 Mich.App. 380.
This section governing procedure for processing application for reprieve, commutation or pardon does not require hearing before the Parole Board upon every application for commutation of sentence. Berry v. Department of Corrections (1982) 324 N.W.2d 65, 117 Mich.App. 494.
Since inmate's complaint challenged the defendant agencies' interpretation of this section governing procedure for processing application for reprieve, commutation or pardon, and since rule (1979 AC, R 791.7760) incorporates this section by reference, complaint sought determination of applicability of this rule, even though it was not specifically cited in complaint, and thus trial court had jurisdiction to issue declaratory judgment under § 24.264 of the Administrative Procedure Act (§ 24.201 et seq.). Berry v. Department of Corrections (1982) 324 N.W.2d 65, 117 Mich.App. 494.
Parole board's determination that defendant would be given meaningful parole consideration after having served 20 years of his sentence, and board's decision to continue investigation into granting defendant parole, did not entitle defendant to public hearing outlined in statute, as requirement of public hearing did not establish right for defendant but, rather, established restriction on authority of parole board; statute did not establish public hearing to ensure that a prisoner was fully considered for parole, but established public hearing as means of preventing parole board from granting parole without full consideration of facts involved. Middleton v. Parole Bd. (1995) 528 N.W.2d 791, 208 Mich.App. 563.
Parole board is under no obligation to hold public hearing unless it initially determines that it desires to parole prisoner, in which case public hearing must be held before parole may be granted; prisoner has no right to public hearing absent parole board's decision to hold one. Middleton v. Parole Bd. (1995) 528 N.W.2d 791, 208 Mich.App. 563.
Parole board did not create contractual obligation to conduct public hearing by informing defendant that it would give meaningful parole consideration after defendant served 20 years of his sentence, or by investigating in detail prospects of parole. Middleton v. Parole Bd. (1995) 528 N.W.2d 791, 208 Mich.App. 563.
MI ST 791.244
PARDON, PAROLE, AND COMMUTATION OF SENTENCE
Callaghan's Mich Dig, Pardons and Paroles
Girard, Prosecution Appeals of Decisions to Parole - A Different Perspective, 73 Mich BJ 2:188 (1994)
Dagher & Margosian, Life Means Life: Parole Rarely Granted on Nonmandatory Life Terms, 73 Mich BJ 1184 (1994)
Pardon as restoring public office or license or eligibility therefor, 58 ALR3d 1191.
Prejudicial effect of statement of prosecutor as to possibility of pardon or paroled, 16 ALR3d 1137.
Prejudicial effect of statement or instruction of court as to possibility of parole or pardon, 12 ALR3d 832.
Validity of statutes prohibiting or restricting parole, probation, or suspension of sentence in cases of violent crimes, 100 ALR3d 431.
Acquittal in criminal proceeding as precluding revocation of parole on same charge, 76 ALR3d 578.
Prejudicial effect of statement of prosecutor as to possibility of pardon or parole, 16 ALR3d 1137.
Prejudicial effect of statement or instruction of court as to possibility of parole or pardon, 12 ALR3d 832.
18A Am Jur Pl & Pr Forms (Rev), Pardon and Parole
Auto-Cite : Cases and annotations referred to here can be further researched through the Auto-Cite computer-assisted research service. Use Auto-Cite to check citations fro from, parallel references, prior and later history, and annotation references.
§ 815. Constitutional provisions
§ 816. Pardons, commutations, and reprieves - Statutory provisions.
§ 816.50 --Infringement on executive power of clemency.§ 817. Requisites and effect§ 818. Parole --Statutory provisions
§ 818.50 --Notice to victim.
§ 819. --Nature and purpose
§ 820. --Status of paroled prisoner.
§ 820.10. --Revocation of parole.
§ 821. Reserved
§ 815. Constitutional provisions
Under the constitution the governor is given the power to grant reprieves, commutations and pardons after conviction for all offenses, except cases of impeachment, on such conditions and limitations as the governor may direct, subject to procedures and regulation prescribed by law. 1 The governor is directed by the constitution to inform the legislature annually of each reprieve, commutation and pardon granted, stating the reasons each was granted. 2
The constitution also sets out that the legislature may provide for indeterminate sentences as a punishment for crimes, and for the detention and release of persons imprisoned or detained on such sentences.3
1. Const 1963, art V, § 14.
2. Const 1963, art V, § 14.
3. Const 1963, art IV, § 45.
§ 816. Pardons, commutations, and reprieves--Statutory provisions
The pardoning power is vested exclusively in the governor under the constitution. 1 The legislature cannot grant a pardon or commute a sentence. 2 Under the constitutional power conferred on the governor to commute sentences the matter of the commutation of a sentence rests entirely on executive clemency. 3 The power conferred on the governor under the constitution to grant pardons is almost unrestricted, and executive clemency is a matter of discretion. 4 It is not a privilege by an official duty lodged in the governor not for the benefit of the convict only but for the welfare of the people who may insist on performance of the duty. 5 The coordinate branches of the government have nothing to do with the pardoning power, except that the legislature may by law provide how application ar to be made and is entitled to a report of actions taken. 6
The Michigan corrections commission consists of six member to be appointed by the governor. 7 Within the department of corrections there is a bureau of field services, under the direction and supervision of a deputy director 8, and a parole board consisting of ten members not subject to the state civil service. 9 Subject to the constitutional powers vested in the executive and judicial departments of the state, the department of corrections has exclusive jurisdiction over pardons and reprieves. 10
All applications for pardons and reprieves must be filed with the parole board on forms provided by the board, and must contain information the board may by rule require. 11 Upon its own initiation or on receipt of any application for a reprieve, commutation, or pardon, the parole board is required to deliver either the written documentation of the initiation or the original application with the board's determination regarding merit to the governor and retain a copy of each in its file pending investigation and hearing. 12 Within 10 days after initiation, or after determining that an application has merit, the board must forward to the sentencing judge and the prosecuting attorney of the county having original jurisdiction of the case a written notice of the filing of the application or initiation, together with copies and any supporting affidavits and a brief summary of the case. Within 30 days after receipt of the notice of the filing, the sentencing judge and prosecuting attorney may file information at their disposal, together with any objections, which they may interpose; if they do not so respond within the 30-day period the parole board is required to proceed on the application or initiation. 13
One member of the parole board is required to conduct a public hearing on all applications before recommending executive clemency. 14 A hearing before the board is not required for every application, but merely when the board is inclined toward recommending clemency. 15
The public must be represented by the attorney general or a staff member. 16 At least 30 days before and public hearing notice must be sent to the attorney general, the sentencing judge, the prosecuting attorney and each victim who requested notice under the Crime Victim's Rights Act. 17 The hearing must be conducted in accordance with rules adopted by the commission at which any person having knowledge to divulge in connection with the application may be sworn as a witness. 18 A person who is a victim is entitled to address and be questioned by the parole board or to give written testimony for the hearing. 19
At the conclusion of the hearing the board must transmit its formal recommendation to the governor. 20 Except for medical records 21 protected by the doctor-patient privilege of confidentiality, the files of the board in all cases are matters of public record. 22
1. Oakland County Prosecutor v. 52nd Dist. Judge, 172 Mich App 557, 432 NW2d 322; People v. Garcia, 118 Mich App 676, 325 NW2d 540; People v. Allen, 79 Mich App 100, 261 NW2d 225.
2. Meyers v. Jackson, 245 Mich 692, 224 NW 356.
3. Meyers v. Jackson, 245 Mich 692, 224 NW 356.
4. Rich v. Chamberlain, 104 Mich 436, 62 NW 584.
5. Rich v. Chamberlain, 104 Mich 436, 62 NW 584.
6. Rich v. Chamberlain, 104 Mich 436, 62 NW 584.
7. MSA § 28.2271-28.2343 MCL § 791.201-791.283.
8. MSA § 28.2301; MCL§ 791.231.
9. MSA § 28.2301; MCL § 791.231a
10. MSA § 28.2274; MCL § 791.204
11. MSA § 28.2313; MCL § 791.243.
12. MSA § 28.2314, subd (2); MCL § 791.244, subd (2).
Michigan Parole Board members
Maurice Armstrong has a master's degree in public administration. He previously worked in court administration and human services in Texas, as a legal services technician for the U.S. Air Force Judge Advocate Corps, as a municipal court administrator, and as a judicial accounts clerk for the Ingham Circuit Court.
Charles Braddock was formerly a homicide detective with the Saginaw Police Department.
Ronald Gach, a member of the Board since 1985, is the only current member who served on the pre- 1992 Board. He has served as a deputy warden at two Michigan facilities and superintendent at another. He has a master's degree in sociology from the University of Detroit.
John Hallacy was formerly a Chief Assistant Prosecutor in Calhoun County.
Barabara Queen Johnson, appointed to the Board in 1985, has a master's degree in social work from Indiana University in Indianapolis. She previously worked at Orchard's Children's Services in Southfield, where she was involved in foster care management and training. She has also worked as a part-time therapist.
Stephen Marschke, who began he law enforcement career in 1977, was the Barrien County Sheriff before being appointed to the Board. He also worked for the Benton Harbor, MI and Elkhard, IN Police Departments and commanded the Metro Narcotics Unit in Barrien County. He has a bachelor's degree from Indiana University in South Bend.
Margie McNutt was a pretrial services investigator in Ingham County from 1979 until she was appointed to the Board in 1992. She interviewed accused felons for bond recommendations and supervised caseloads for compliance with the conditions of pretrial release.
Andrea Morse administered the Victim and Witness Protection Act for the Western District of Michigan and advised the U.S. Attorney on victim-witness matters before joining the Board. From 1980-1985, she directed victim-witness services for the Kent County Prosecutor's Office. She has a master's degree in public administration from Western Michigan University.
William Reed was formerly a probation supervisor with the Michigan Department of Corrections.
William Slaughter was formerly a police officer.
Michigan Standard Jury Instructions
Use of Deadly Force in Self-Defense
1) The defendant claims that [he/she] acted in lawful self-defense. A person has the right to use force or even take a life to defend [himself/herself] under certain circumstances. If a person acts in lawful self-defense, [his/her] actions are excused and [he/she] is not guilty of any crime.
2) You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful self-defense. Remember to judge the defendant's conduct according to how the circumstances appeared to [him/her] at the time [he/she] acted.
3) First, at the time [he/she] acted, the defendant must have honestly and reasonable believed that [he/she] was in danger of being [killed/seriously injured/forcibly sexually penetrated]. If [his/her] belief was honest and reasonable, [he/she] could act immediately to defend [himself/herself] even if it turned out later that [he/she] was wrong about how much danger [he/she] was in. In deciding if the defendant's belief was honest and reasonable, you should consider all the circumstances as they appeared to the defendant at the time.
4) Second, a person may not kill or seriously injure another person just to protect [himself/herself] against what seem like a threat of only minor injury. The defendant must have been afraid of [death/serious physical injury/forcible sexual penetration]. When you decide if the defendant was afraid of one or more of these, you should consider all the circumstances: [the condition of the people involved, including their relative strength/ whether the other person was armed with a dangerous weapon or had some other means of injuring the defendant / the nature of the other person's attack or threat / whether the defendant knew about any previous violent acts or threats made by the other person].
5) Third, at the time [he/she] acted, the defendant must have honestly and reasonably believed that what [he/she] did was immediately necessary. Under the law, a person may only use as much force as [he/she] thinks is necessary at the time to protect [himself/herself], but you may also consider how the excitement of the moment affected the choice the defendant made.
Use when requested where some evidence of self-defense has been introduced or elicited.
CJI2d 7.15 was CJI 7:9:01; amended June, 1990; June, 1991.
In People v Deason, 148 Mich App 27, 31, 384 NW2d 72 (1985), the court of appeals stated that the test for determining whether a defendant acted in lawful self-defense is whether (1) the defendant honestly believed that he or she was in danger, (2) the degree of danger was of serious bodily harm or death, and (3) the action taken by the defendant appeared at the time to be immediately necessary, that is, defendant is only entitled to use the amount of force necessary for self-defense.
Poin (1) in the above test has been a matter of some controversy in Michigan until the controversy apparently was put to rest in People v Heflin (People v Landrum), 434 Mich 482, 502-503, 456 NW2d 10 (1990), where the majority rejected the honest belief standard and stated that a defendant must have both an honest belief standard and reasonable belief that he or she was in danger. The jury instructions on self-defense were modified in June of 1990 to reflect that standard.
The amount of force immediately necessary may include taking another person's life under some circumstances. Patten v People, 18 Mich 314 (1869); People v Giacalone, 242 Mich 16, 217 NW 758 (1928).
In People v Barker, 437 Mich 161, 468 NW2d 492 (1991), the court held that the trial judge erred in refusing to instruct that a defendant may use deadly force to repel an imminent forcible sexual penetration, but found the instructional omission harmless under the facts of the case. See MCLA 750.520a(l); MSA 28.788(1)(l) for the definition of sexual penetration. CJI2d 7.15 was revised in June, 1991, to include forcible sexual penetration.
In cases involving the use of deadly force, Michigan recognizes the doctrine of imperfect self-defense. Imperfect self-defense is a qualified defense that can mitigate second-degree murder to voluntary manslaughter. Although in some other jurisdictions the defense applies where the defendant reacted with unreasonable force or had an unreasonable belief about the danger at hand, in Michigan the doctrine only applies where the defendant would have had a right to self-defense but for the defendant's actions as the initial aggressor. Deason, 148 Mich App at 32.
The defendant must request an instruction on imperfect self-defense. People v Fuqua, 146 Mich App 133, 379 NW2d 396 (1985). The defendant is not entitled to the instruction where his or her position at trial is that the victims were the initial aggressors, as imperfect self-defense focuses on whether the defendant would have had a right to self-defense but for his actions as the initial aggressor. People v Vicuna, 141 Mich App 486, 367 NW2d 887 (1985).
In People v Curry, 175 Mich App 33, 437 NW2d 310 (1989), the court of appeals held that the trial court's failure to instruct on imperfect self-defense was not reversible error where testimony was conflicting on whether the defendant was the aggressor in the fight, and general self-defense instructions were otherwise adequate.
In Landrum (People v Heflin), 434 Mich at 507-509, the Michigan Supreme Court refused to recognize the doctrine of imperfect self-defense as a means of mitigating murder to involuntary manslaughter.
Duty to Retreat to Avoid Using Deadly Force
(1) By law, a person must avoid using deadly force if [he/she] can safely do so. If the defendant could have safely retreated but did not do so, you can consider that fact, along with all the other circumstances, when you decide whether [he/she] went farther in protecting [himself/herself] than [he/she] should have.
(2) However, if the defendant honestly and reasonably believed that it was immediately necessary to use deadly force to protect [himself/herself] from and imminent threat of [death / serious injury / forcible sexual penetration], the law does not require [him/her] to retreat. [ He/She} may stand [his/her] ground and use the amount of force [he/she] believes necessary to protect [ himself/herself].
Use CJI2d 7.17 if the act occurred in the defendant's dwelling or in inhabited buildings within its curtilage; in those situations, do not use this instruction.
CJI2d 7.16 was CJI 7:9:02; amended September, 1990; June, 1991.
If the defendant has the option of retreating to a place of safety, he or she normally must exercise that option. The supreme court stated the rule in People v Stallworth, 364 Mich 528, 535, 111 NW2d 742 (1961), quoting Pond v People, 8 Mich 150, 176 (1860):
Self-defense, however, requires a showing that the defendant had done "all which is reasonably in his power to avoid the necessity of extreme resistance, by retreating where retreat is safe."..."[A] man is not...obliged to retreat if assaulted in his dwelling."
See also People v Mroue, 111 Mich App 759, 765, 315 NW2d 192 (1981).
The jury instructions on self-defense were modified in 1990 to reflect the standard in People v Heflin (People v Landrum), 434 Mich 482, 502-503, 456 NW2d 10 (1990). In June, 1991, the jury instructions were modified to reflect the supreme court's decision in People v Barker, 437 Mich 161, 468 NW2d 492 (1991). See commentary to CJI 2d 7.15.
No Duty to Retreat While in Own Dwelling
If a person [assaulted the defendant in the defendant's own home / forcibly entered the defendant's home], the defendant did not have to try to retreat or get away. Under those circumstances, the defendant could stand [his/her] ground and resist the [attack / intrusion] with as much force as [he/she] honestly and reasonably believed necessary at the time to protect [himself/herself].
This instruction may be used when the force used was either deadly or nondeadly. Either CJI2d 7.15 or CJI2d 7.22 must also be given.
This instruction may be given when the act occurred in inhabited buildings within the curtilage of the defendant's dwelling. For a statutory definition of "dwelling," see MCLA 750.110a(1)(a), MSA 28.305(a)(1)(a). The curtilage does not necessarily extend to the lot line. See commentary.
Michigan law recognizes that there is no duty to retreat from either an assault within one's home or a forcible entry of one's home. See commentary. Choose the factually appropriate alternative(s) from the bracketed language. In situations involving use of deadly force in defense of property, see Pond v People, 8 Mich 150, 177-178 (1860).
CJI2d 7.17 was CJI 7:9:03; amended September, 1990; January, 1991.
A person is not obligated to retreat if he or she is assaulted in his or her own dwelling. People v Lenkevich, 394 Mich 117, 229 NW2d 298 (1975).
If the defendant was in his or her dwelling at the time of the offense, the trial court must instruct the jury sua sponte on the no-duty-to-retreat rule. People v Paxton, 47 Mich App 144, 209 NW2d 251 (1973); People v Szymarek, 57 Mich App 354, 225 NW2d 765 (1975); see also Lenkevich. However, in People v Godsey, 54 Mich App 316, 220 NW2d 801 (1974), the court was not required to instruct sua sponte on the no-duty-to-retreat rule when defendant was charged with killing his next-door neighbor near the common boundary line of their adjacent lots.
Deadly Aggressor - Withdrawal
A person who started an assault on someone else [with deadly force / with a dangerous or deadly weapon] cannot claim that [he/she] acted in self-defense unless [he/she] genuinely stopped [fighting / (his/her) assault] and clearly let the other person know that [he/she] wanted to make peace. Then, if the other person kept on fighting or started fighting again later, the defendant had the same right to defend [himself/herself] as anyone else and could use force to save [himself/herself] from immediate physical harm.
If supported by the facts, failure to give this instruction sua sponte is reversible error.
CJI2d 7.18 was CJI 7:9:04.
A defendant who was initially the aggressor may still claim self-defense if he decided to withdraw from the conflict an communicated that withdrawal to the other person. People v Peoples, 75 Mich App 616, 255 NW2d 707 (1977). In Peoples, the court held that were the facts clearly establish withdrawal, and also where the facts are conflicting, the trial court should instruct on withdrawal. If the facts support the instruction, it is reversible error for the trial court to fail sua sponte to instruct the jury that an aggressor's communicated withdrawal revives his or her right to self-defense.
In People v Kerley, 95 Mich App 74, 83-84, 289 NW2d 883 (1980), the court declined to apply the Peoples requirement of a sua sponte instruction where there was conflicting testimony as to whether the defendant was withdrawing and had reasonably informed his adversary of his intent to withdraw.
In People v Terrell, 106 Mich App 319, 321, 308 NW2d 183 (1981), the court cited Kerley and held that it was error not to instruct sua sponte on an element of self-defense where the element is "clear and uncontested."
Michigan Standard Jury Instructions Use of Deadly Force to Protect Others § 7.21
Defense of Others - Deadly Force
(1) The defendant claims the [he/she] acted lawfully to defend________________. A person has the right to use force or even take a life to defend someone else under certain circumstances. If a person acts in lawful defense of another, [his/her] actions are excused and [he/she] is not guilty of any crime.
(2) You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful defense of another. Remember to judge the defendant's conduct according to how the circumstances appeared to [him/her] at the time [he/she} acted.
(3) First, when [he/she] acted, the defendant must have honestly and reasonably believed that ______________ was in danger of being [killed / seriously injured / forcibly sexually penetrated]. If [his/her] belief was honest and reasonable, [he/she] could act at once to defend ___________, even if it turns out later that the defendant was wrong about how much danger _______________ was in.
(4) Second, if the defendant was only afraid that ___________________ would receive a minor injury, then[he/she] was not justified in killing or seriously injuring the attacker. The defendant must have been afraid that ______________ would be [killed / seriously physically injured / forcibly sexually penetrated]. When you decide if [he/she] was so afraid, you should consider all the circumstances: [the conditions of the people involved, including their relative strength / whether the other person was armed with a dangerous weapon or had some other means of injuring ___________ / the nature of the other person's attack or threat / whether the defendant knew about any previous violent acts or threats made by the attacker].
List of Potential Expert Witnesses on Domestic Violence in Michigan
(compiled from Michigan PAAM Resources)
Lisa Huosiamaa, M. El
Mary Ann Ketels
Judith Lee, LPC, CSW
Susan G.S. McGee
R. Hedy Nuriel
Cheryl Rogers, J.D.
People v Wilson
194 Mich.App. 599, 487 N.W.2d 822
PEOPLE of the State of Michigan, Plaintiff-Appellant,
Geraldine Margaret WILSON, Defendant-Appellee.
Docket No. 140339
Court of Appeals of Michigan
Submitted Jan. 14, 1992, at Grand Rapids
Decided July 6, 1992, at 9:35 a.m.
Released for Publication Aug. 28, 1992.
A defendant charged with open murder and possession of a firearm during the commission of a felony filed a motion to admit expert evidence regarding the battered spouse syndrome. The Isabella Circuit Court, Paul F. O'Connel, J., entered an interlocutory opinion and order that allowed the testimony in part. The People appealed by leave granted. THe Court of Appeals, McDonald, J., held that: (1) expert giving testimny regarding battered spouse syndrome was qualified only to render an opinion regarding syndrome and the symptoms that manifested it, not whether the individual defendant suffered from the syndrome or acted pursuant to it, and (2) expert could not testify that the defendant's allegations of battery were in fact truthful.
Affirmed in part, reversed in part, and remanded.
**823 *600 Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Larry J. Burdick, Pros. Atty., and Mark H. Duthie, Chief Asst. Pros. Atty., for the People.
Daniel R. O'Neil, Mount Pleasant, for defendant.
Criminal Defense Attys. of Michigan by Gail Rodwan, Detroit, and Jeanice Dagher-Margosian, Ann Arbor, amicus curiae.
Before BRENNAN, P.J., and HOLBROOK and McDONALD, JJ.
The people appeal by leave granted from and April 29, 1991, interlocutory order granting defendant's motion in limine regarding the admissibility of expert opinion testimony regarding the "battered spouse syndrome" (BSS). We affirm in part, reversin in part, and remand for further proceedings consistent with the opinion. The issue before this Court is one of first impression and involves the admissibility of expert testimony regarding the BSS in situations where a self-defense claim is raised in a homicide trial. Defendant is charged with open murder, M.C.L. § 750.316; M.S.A. § 28.548, and possession of a firearm during the commission of a felony, M.C.L. §750.227b; M.S.A. *601 § 28.424(2), arising out of the shooting death of her husband. Defendant admits shotting the victim while he slept, but claims she acted in self-defense following forty-eight hours of abuse and death threats and years of battery.
Defendant asserts expert testimony regarding the BSS is essential to her defense, and thus she filed a motion before trial to obtain an advance ruling regarding its admissibility. The people challenged the motion, denying the relevancy of the proposed testimony absent an offer of proof by defendant demonstrating that she was battered druing her relationshp with her husband and arguing defendant should be required to disclose the identity of the proposed witness. The peopl further suggested that the testimony, if found admissible, should be limited to a description by the expert of general behavioral patterns attributable to an individual suffering from the syndrome, and should not include expert testimony regarding the ultimate fact whether defendant suffers from the syndrome or whether the shooting resulted therefrom. The trial court entered an opion and order finding expert testimony regarding the BSS admissible under the following parameters:
[A]n expert qualified in the battered spouse syndrome may testify: (1) to a description of the general syndroms; (2) that the particular behavior of the spouse was characteristic of battered spouse syndrome victims generally' (3) whether the defendant suffers from the syndrome; (4) whether the defendant's act was the result of the syndrome. The expert may not testify that the allegation of battering are in fact truthful or not. Issues of credibility are for the jury.
We agree with the people and find the trial court's holding allowing expert testimony that defendant *602 suffers from this syndrome and that defendant's specific acts are attributable to this syndrome too broad and thus improper.
 The decision to admit or deny expert tesitmony falls within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990). Expert testimony may be received when it is "necessary" or "helpful" to the trier of fact in deciding an issue that is material. [FN1] MRE 702; Beckley, supra.
FN1. We do not address the requirement of MRE 702 that the expert testimony constitute evidence of a recognized scientific, technical, or other specialized discipline because the people concede this point by acknowledging the admissibility, in some form, of BSS testimony. Moreover, in Beckley, supra, our Supreme Court recognized the existence of the syndrome and held as a general rule that behavioral sciences are not subject to the Davis-Frye test, People v. Davis, Mich. 348, 72 N.W.2d 269 (1995); Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). Likewise, we do not address the sufficiency of the defendant's proposed expert's qualifications because the trial has yet to commence and the trial court has therefore not ruled with regard to this question.
 Defendant argues expert testimony regardin the BSS will help present her **824 theory of self-defense. In People v. Heflin, 434 Mich. 482, 456 N.W.2d 10 (1990), our Supreme Court addressed the test for determingin whether a person acts in self-defense. In Michigan, a homicide is justified under the theory of self-defense if the defendant "honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm." Heflin at 502, 456 N.W.2d 10. A defendant who argues self-defense implies his actions were intentional but that the circumstances justified his actions. Heflin, supra. Thus, defendant argues the jury should consider the fact she suffered from the Bss in evaluating her self-defense claim because it relates to the question whether she reasonably believed he life was in danger. Defendant also argues the evidence is relevant in rebuttin the *603 prosecution's claim that she could have left her husband. One court has described the syndrome as follows: The "battered woman syndrome" generally refers to common characteristics appearing in women who are physically and spychologically abused by their mates. The typical pattern of violence consists of three recurrent phases of abuse: a tension-building stage, characterized by minor abuse; an acute battering stage, characterized by uncontrollable explosions of brutal violence; and a loving respite stage, characterized by calm and loving behavior of the batterer, coupled with pleas for forgiveness. The continued cycle of violence and contrition results in the battered woman living in a state of learned helplessness. Because she is financially dependent on the batterer, she may feel partly responsible for the batterer's violence, she may believe that her children need a father, or fear reprisal if she leaves. The battered woman lives with constant fear, coupled with a perceived inability to escape. Eventually, she comes to believe that her only options are enduring the abuse, striking back, or committing suicide. [Tourlakis v. Morris, 738 F.Supp. 1128, 1134 (S.D.Ohio, 1990), citing Fennell v Goolsby, 630 F.Supp. 451, 456 (E.D.Pa., 1985).]
We do not believe the average juror is familiar with the complex behavior of a victim of the BSS. [FN2] Moreover, the majority of jurisdictions favor the admissibility of expert testimony regarding the BSS. See, generally, anno: Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 A.L.R.4th 1153 (1982); Tourlakis *604 v. Morris, supra. Testimony regarding the BSS has been used in other jurisdictions to explain how a battered spouse reacts to the batterer, to explain the reasonableness of the battered spouse's perception that danger or great bodily harm is imminent, and also to rebut the prosecution's inference that the defendant could have left rather than kill the spouse. Tourlakis, supra, State v. Hennum, 441 N.W.2d 793 (Minn.1989), and Mather The skeleton in the closet: the battered woman syndrome, self-defense and expert testimony, 39 Mercer L. 545 (1988).
FN2. In Beckley, supra, in permitting the introduction of expert testimony regarding the child sexual abuse accommodation syndrome, our Supreme Court recognized society's adverse reaction to the typical behavior of victims of sexual assaults and found testimony by an expert helpful to explain the unfamiliar responses of children subjected to such abuse.
We conclude that in cases such as this one expert testimony regarding the BSS will give the trier of fact a "better understanding of the evidence or assist in determining **825 a fact in issue." Beckley, 434 Mich. at 711, 456 N.W.2d 391.
 Having determined the introduction of expert testimony regarding the BSS generally may be relevant and helpful to the jury, we must now address the scope of its admissibility. As previously noted, we find the parameters outlined by the trial court to be too broad. We look to our Supreme Court's decision in People v. Beckley, supra, for guidance. In Beckley, the Court addressed the admissibility of expert testimony regarding the child sexual abuse accommodation syndrome. Given the nature of "syndrome" evidence, we find the reasoning contained in Beckley applicable to testimony regarding the BSS.
In Beckley, the Court found expert testimony regarding the syndrome useful to the jury becasue it provided the jury information with which to dispel some of the common misconceptions regarding a child's behavior following abuse. Given this rationale for the introduction of "syndrome" testimony, the Court limited the testimony to background information or discussion of the traits or symptoms experienced by victim s of the syndrome. *605 Because an expert regarding the child sexual abuse accomodation syndrome is an expert with regard to the syndrome and not the victim, it is inappropriate for that expert to render an opinion regarding whether the victim actually suffers from the syndrome. However, the Court in Beckley held the expert could render an opinion that the victim's behavior is common to the class of child abuse victims as long as the symptoms are already established in evidence. The expert may not introduce new facts about the victim unless those facts are properly admitted under a rule other than MRE 702. Beckley at 726-727, 729, 456 N.W.2d 391.
We believe the same limitations should apply to experts who testify about the BSS. As with the child abuse syndrome, the BSS expert is an expert with regard to the syndrome and not the particular defendant. Thus, the expert is qualified only to render an opinion regarding the "syndrome" and the symptoms that manifest it, not whether the individual defendant suffers from the syndrome or acted pursuant to it.
 We therefore affrim that portion of the trial court's interlocutory order permitting the introduction of expert testimony regarding a description of the general syndrome and that certain behavior of the defendant already in evidence is characteristic of batterd spouse victims generally, but reverse that portion of the order permitting testimony regarding whether the defendant suffers from the syndrome and whether the defendant's act was the result of the syndrome. Further, as ordered by the trial court and consistent with Beckley, the expert may not testify that the allegations of battery are in fact truthful, this being an issue of credibility for the jury.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
Interview Question (Legal Interview and DV Interview)
Legal Interview Guide
DATE OF CONVICTION:_______________
DATE OF SENTENCE:________________
TRIAL ATTORNEY'S NAME AND
APPELLATE ATTORNEY'S NAME AND
1. Did you file for an appeal? At what point are you in the appellate process? (E.g. Request for an attorney? Court of Appeals? Supreme Court?(request for review? request granted? brief filed?) Circuit Court post-judgement motions? Request for habeas relief? Habeas filed? Or are all avenues of relief exhausted?)
2. What was your trial like?
a. If you plead, why did you plead?
b. If not, what was your defense?
c. What jury instruction were given?
d. What did the judge say to you?
e. What was the composition of the jury?
3. What was your major concern about the trial level proceeding? Was trial attorney available? Were the consequences of plea/conviction explained to you? Was evidence of domestic violence presented? Were these issues raised on appeal?
4. If your trial lawyer did take the abuse into account, how was it brought up at trial? Do you remember whether the judge told jury members that they should consider the abuse when making a decision?
5. Was domestic violence considered in the sentencing process? did your lawyer bring it up? Did the probation agent ask you about it and/or include it in the pre-sentence report?
6. Was there a psychological report? If so, was it obtained at your request, at the prosecutor's request, or at the request of the court? Did you sign a release to give the psychological evaluation to the court? To your lawyer? To the probation department? Did your attorney see it before the judge did? Did you see it before the judge did?
7. Are all the facts of your case on record? If not, what non-record issues or facts are important to the case? (i.e. things your attorney knew that were not brought up, off-record discussion with the judge, discussions with your lawyer that were not made part of the record). Is there supporting evidence such as police or hospital records?
8. Have you seen the Parole Board? How many times? What happened?
9. What do you feel is the greatest injustice about your conviction?
10. What are your plans upon release? Do you have a job, a place to live, a place to parole out to?
11. What is your prison record like? How many major and minor misconduct tickets do you have? What for? What is your security classification level? How many points do you have?
Michigan Battered Women's Clemency Project Interview Questions
Date of birth:_________________________
General Questions About the Relationship and the Offense
What was happening in your life at the time you committed the offense?
Please describe the incident.
Why do you feel that you committed this crime? (If she says she committed the crime because she was battered, ask her to explain what she means by that. Get as much information in her own words as possible.)
TELL THE WOMAN THAT YOU WOULD LIKE TO TALK ABOUT THE RELATIONSHIP BETWEEN HER AND HER BATTERER.
History of the Abusive Relationship
Assailant's status (alive/dead, where he is living, if alive):____________________________________
1. When did you first meet your partner?
2. In the beginning, what was the relationship like?
a. Describe your partner's behavior toward you.
b. If you had a disagreement, how was it handled?
c. How did you partner feel about you and the relationship?
d. How soon did you commit to the relationship? (i.e. living together, going "steady", marriage?)
3. At what point did you begin to have concerns about the relationship?
a. Describe specific situations.
b. Describe things your partner said to you.
c. What was a typical argument like?
(IF ASSAILANT WAS NOT AN INTIMATE PARTNER, ASK ABOUT WHAT RELATIONSHIP SHE HAD WITH THE ASSAILANT AND WHEN SHE BEGAN TO HAVE CONCERNS ABOUT THE RELATIONSHIP.)
SHOW THE WOMAN THE POWER AND CONTROL WHEEL ATTACHED TO THIS LIST. READ THE ABUSIVE TACTICS AND THE EXAMPLES LISTED. ASK HER WHICH TACTICS HER ASSAILANT USED ON HER. ASK HER TO COME UP WITH EXAMPLES. LET HER USE HER OWN WORDS TO DESCRIBE THE EXPERIENCE.
Did you partner ever....
4. Destroy your personal possessions?
5. Rip or tear your clothing?
6. Rip the phone out of the wall?
7. Smash or throw items in the house?
8. Bang or punch walls?
9. Put fear in you by using looks, actions, voices?
10. How often were you afraid of your partner?
11. What effect did this have on you?
Did your partner ever...
12. Give you time limits or make you report your whereabouts?
13. Check your mileage?
14. Control your choice of friends?
15. Restrict you from seeing certain people?
16. Lock you in the house?
17. What effect did this have on you?
D. Emotional Abuse
Did your partner ever...
18. Call you names? Which names? How often?
19. Try to make you think you were crazy? How?
20. Force you to take drugs or alcohol?
21. Tell you that you could not do anything right?
22. What effect did this have on you?
E. Economic Abuse
Did your partner ever...
23. Tell you that you could not work?
24. Disturb you at work?
25. Take your money?
26. What effect did this have on you?
F. Using Children
Did you partner ever...
27. Criticize your parenting skills?
28. Use children to give you messages or threats?
29. Force children to watch the abuse?
30. Use visitation as a way to harass you?
31. Direct the children to disobey you?
32. Direct the children to verbally attack you?
33. Threaten to take the children and prevent you from having custody or seeing them again?
34. Sexually or physically abuse the children?
35. What effect did this have on you?
Did you partner ever threaten to...
36. Kill or harm your pets?
37. Kill or harm you?
38. Cause trouble so that you would lose your job?
39. Kill or harm your family/kids?
40. Commit suicide?
41. Report you to welfare?
42. (If lesbian) tell your friends, employer, etc. your sexual orientation?
43. How often did he carry through on his threats?
44. How did this make you feel?
Did your partner ever accuse you of...
45. Having affairs?
46. Not being where you said you would be?
47. Being attracted to different people?
48. Being a lesbian? (for lesbian women - not being a true lesbian or not femme or butch enough?)
49. How did this feel?
I. Using Male Privilege
50. Did your partner ever treat you like a servant?
51. What were your partner's ideas about what male/female roles should be?
52. What were your views of marriage? Of roles for men and women?
53. What did your partner expect from you?
54. Did he/she ever ask for you opinion or permission?
55. What effect did this have on you?
J. Sexual Abuse
Did your partner ever...
56. Force or coerce you to have sex or to do particular sex acts?
57. Force or coerce you to have sex with another person or animal?
58. Rape you with an object?
59. Threaten to give you a sexually transmitted disease?
60. Call you sexually derogatory names (whore, slut, etc.)?
61. What effect did this have on you?
K. Physical Abuse
62. Describe the first physical assault.
63. How did you feel after the first assault?
64. Describe a typical assault.
65. What was the worst assault?
66. How did you react?
67. What did you do to protect yourself?
L. Attempts to Seek Help
68. Did you seek medical treatment after an assault? How many times?
69. How many times did you call the police?
70. What happened when you called the police?
71. Did they arrest you?
72. How many times?
73. Did you have restraining order?
74. If you had a restraining order, did the police enforce it?
75. Did the police give you information on services like shelters?
76. Do you have medical or police reports?
77. Did you approach a religious or spiritual community for help?
78. How often did you try to separate yourself from your partner?
79. How often did you leave?
80. What did your partner do when you left?
81. Did you ever to to a battered women's shelter"
82. What else did you do to try and protect yourself and get help?
83. After your partner assaulted you, what did he do or say?
84. Did your partner ever talk about the assault?
85. Describe the fear you felt toward your partner.
86. What was your childhood like?
87. If you were abused, what happened?
88. How did you disclose the abuse you experience to your family? How did they respond?
89. Do you have any children? If so, where are they? When was the last time you saw them? What kind of relationship would like with them if you were to be released?
90. Do you have any medical problems? How have they been treated?
91. Who could write letters of support for you?
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