Nothing in the PSI should surprise us. She has no record. Not even a speeding ticket. She is a lawful permanent resident.
I’m guessing on a voluntary manslaughter plea, our judges would give her about five to serve.
We are getting a second opinion on the NGRI now. We also have an expert who will say NGRI. The prosecutors might even agree to an NGRI finding, as long as their butts are covered.
Sigh… Its a tough case all around.
We are still in the process of having her evaluated.
Virginia’s standards for not guilty by reason of insanity are not very favorable. Nor are they around the U.S. We have a nasty habit of locking up mentally ill folks here. I wanna say that 80% of death row inmates have a DMS-IV diagnosis. Something close to, anyway.
Don’t get me started on how unjust the system can be for poor folks. Her sisters have had to put up the family home in Brazil to get a loan for an expert witness (after the court denied us the funds twice).
It’s a good question.
The prior DV reports will certainly come in. As I said before, the prosecutors would have to play her entire interrogation as part of their case in chief, which lays the ground work for self-defense. So all the priors would come in to demonstrate that her fear of harm was reasonable. Almost all of his prior bad acts would. Certainly his death threat to the neighbor will come in. Not sure about the “nigglets” though.
Someone upthread asked about the kids’ testimony. The testimony of a child under the age of 12 is inherently incredible. You never know with kids and you can’t really rely on it. BUT… we do have a videotaped interview with the daughter where she recounts the prior acts of violence in the home.
When she says that her parents fight because her Dad’s life used to be great before he had a wife and kids, it just breaks your heart. 
Yeah, I know that not guilty by reason of insanity is incredibly hard, but surely the standards for those charged are lower? If she is mentally ill, then she should be allowed to be treated and medicated regardless of her innocence or guilt in this matter.
And yeah, that’s total BS that she can’t be given the funds for a witness. JC…largest military budget in the world, but the state can’t be bothered to either pay or order witnesses to testify.
Based on the facts as you’ve presented them, the logical side of me says 2nd degree murder. I don’t buy the premeditation…I believe that for most people in this situation, the time between going upstairs and firing the shot wouldn’t be a ‘cool down time for rational thought’ but rather an instinctive ‘I have to get the gun to protect my children’ moment. Depending on how the arguments played out, I could buy involuntary manslaughter (She wasn’t actually in a self defense moment but believed she was and fired as a result). (of course, I’d need more detailed jury instructions on how the letter of the law for the charges works).
However, there’s a large part of me that would want to let her off, rules be damned. I’m usually very strict on this part when I imagine working for a jury, but in this case…does the woman deserve to go to prison for potentially the rest of her life for this? No…I don’t believe she does. She needs oodles of therapy and frankly the world is probably a better place with this guy dead.
I’m going with murder 2, but I am open to being talked out of it.
Because A) He is not in her bedroom. He is not upstairs. He is not approaching her up the stairs, and B) there is this thing called 911, and she could have availed herself of that. She had choices besides lethal force.
See, let’s take the gun out of it, and make the murder weapon a chainsaw. Do you think she would be justified in climbing up and getting the chainsaw, starting it up, walking out the bedroom, walking to the top of the stairs, going downstairs, attacking him the first time, striking him in the neck with it, waiting some period of time after he is down and clearly bleeding, attacking him a second time, striking him in the head with it?
Do you think that is reasonable Self-defense?
Do you think his previous confrontation with her, which was OVER, would justify all of those individual steps?
Because this is about the actions. Her use of deadly force with a lethal result. The point being, you have to ignore the implement and consider whether the use of force (likely to result in his death) was justified. Would the same actions be okay if she used a flamethrower, a fully automatic machine gun, or any other deadly weapon/instrument.
Based on the facts as presented, it’s not justified. The previous history is not that relevant because he’s NEVER been convicted of anything. And given the propensity (even requirement) of the police to arrest for domestic assault, I find that surprising and frankly, suspicious in it’s own right over 15 police responses. It implies that the facts are being spun a bit.
Further, the wife has both PTSD and personality disorder, likely either bi-polar, or borderline personality disorder (BPD), BOTH of which are prone to bouts of significant violence towards others. Here I have to admit both personal knowledge and bias, as I was married to someone diagnosed with both PTSD and a personality disorder (BPD). Without getting into details, with a person like that, it is entirely possible that he was as much, if not more of a victim of domestic abuse/assault as she was. The PTSD/BPD person can have HUGE rage/anger issues from the PTSD trauma, and the BPD makes them very likely to take it out on their partner or children. I lived it. Note that the daughter (as described) witnesses physical violence between the parents. Note that the father is NOT clearly named as the aggressor, and again, the father was NEVER arrested by the police for Domestic Assault. Ever. I find that amazing in this day and age and it really does make my BS meter start to ping on her version of events.
All of that aside, she was not in immediate defense of her children or herself. When she chose to pursue the conflict, she became culpable for the results of her use of deadly force. I voted 2nd degree homicide. 1st degree to me requires more thoughtful calculation, and I do not see that in this case.
Regards,
-Bouncer-
This. I think the jury would be entitled to more information about how Mr. & Mrs. met, why she hadn’t become proficient in English in 10 years, and details about the marriage and how it deteriorated.
chiroptera’s observation has merit, but in this particular case I suspect a very strong case can be made that she was captive by threats and actual abuse and had neither the resources nor the capacity–due to the culture she comes from, and the absolute control over her life exercised by her husband–to get herself and her kids free of the creep. If the case is made that she was effectively a prisoner and this guy made it absolutely impractical to plan an escape for three, then I would quite emphatically say not guilty–the woman deserves a medal.
Murder, in my mind, should be applied to people who are a persistent threat to society. There is no reason to suspect she killed a good man, that she tried to evade responsibility for the act, or that she would ever do it again. Dale Sams hit the heart of it. Sure, she was upstairs and away from the threat for the moment, but it sounds like her whole life can be defined as one moment because she never really has an opportunity to run off. The police have demonstrated they are not willing to mitigate the threat, so that is clearly of no use. I really think the killing has to be taken in context.
The policeman was never arrested for domestic assault? Shocking.
Given the way you presented your case above I’d go with Second Degree. The immediate threat on her life was not present at that time, she was upstairs with the kids and a gun and he was downstairs. That’s time to call the cops. That she didn’t call the cops at that point but instead went downstairs to, what it sounds like to me, seek him out is what pushes this to second degree for me. If he was on the stairs coming up then I’d definitely go with self defense. I wouldn’t believe she was trying to go out the front door because she didn’t have her kids with her. If her phone was downstairs though and that was the only way to call the police then I’d reevaluate my thinking.
I would take her mental state and history of abuse in mind during the punishment phase if I was part of that. I’d probably vote for a lower sentence and mental help if given the choice. But those factors wouldn’t come into play in my decision on the first part of the trial when just trying to decide the circumstances of the killing.
A couple of questions, llcoolbj77. IANAL, and I am relatively ignorant of VA criminal law.
First, since this is a real case, and presumably she’s your client, aren’t you revealing client confidential information by discussing her case in this forum? I know about jury focus groups, but don’t the participants usually sign an NDA?
Getting past that, AIUI, the first shot (that hit the deceased, or shot 2) was fired from a distance of about 4 ft, at a downward angle? What evidence do we have for how long she took between shots 2 and 3? Was shot 3 a contact wound to the back of the head or was it taken from about the same distance as shot 2? Where on the staircase—top, middle, bottom—was the accused when she fired shot 2? Does the rest of her story check out for how the fight progressed? Finally, what did she say about the deceased’s movements after shot 2 but before shot 3? Besides that she thought he was laughing at her? Was he able to get up, roll over, or did he drop after shot 2, or do we not know?
Again, IANAL nor a LEO, and I don’t have the VA criminal code and case law in front of me as to the varying degrees of mens rea, but my thought is that her actions firing shot 3 are sufficient to convict her of first degree murder. From your description, the victim was stopped by shot 2, she advanced on him, and she shot him in the back of the head executing him. A jury can reasonably infer that she had malice and premeditated the act of killing him, from her admission that she was going to get the gun and kill him, her advancing into the face of a stopped, lethal threat, and her firing a second shot into the back of his head. I don’t know how VA applies 2nd degree murder, i.e., just what is lack of pre-meditation? If you have the planned pattern jury charges for the different offenses, I wouldn’t mind reading them.
My opinion of what will happen, depending on how many prior bad acts you get in front of the jury, where the jury pool is selected from, their antipathy to law enforcement, their views on DV, how well the prosecution hammers into them their duty to follow the law (and suppress their emotions), your answers to my above questions, etc… is that the jury will split the baby and convict on a lesser charge. What that will be, I dunno. If VA follows M’Naughton, I don’t see how you can possibly get an Insanity plea through. We’re arguing she’s so mentally messed up that she doesn’t know that shooting people in the back of the head while they’re lying there is wrong?
What I would do, were I on the jury, and what I voted above, is to nullify and vote Not Guilty. Law enforcement had a dozen opportunities to nip this problem in the bud and didn’t want to ring up a fellow cop. IMHO, it’s a little late for them to start trumpeting respect for the rule of law. My ex rectum guess is that she’s unlikely to re-offend and the deceased sounds like a real shitbag. I just wish she’d shot a little straighter with shot 2, and dumped the rest of the mag into him from the top of the stairs.
An interesting question—obviously not at play here, but I think influencing many of the votes here all the same—is do we convict if all she fired was shot 2, and he bled out?
Interesting definition. So does everyone get one freebie, or just the ones who murder someone who isn’t nice?
I would not want to be on a case like this. From the facts told, I have great sympathy for the woman, I think she suffered abuse, and it sounds like the world is a better place for her having removed this asshole from it---- but I don’t think I could vote to acquit based on that alone. Either way, I would feel shitty about my decision.
Just the ones who murder someone who isn’t nice.
Yeah, because really the only thing you need to know is the sex of the people involved to determine whether any violence is justified.
I didn’t vote because I’m not sure, but first- and second-degree murder are off the table for me.
Someone just tried to *kill *her, like within the last couple of minutes. She was a minute or two away from dying. After that, her adrenaline and her level of pure terror had to be right off the scale. There’s no way in hell she was in any state to assess calmly whether he was in fact an immediate threat to her life or her kids’ lives, and make a logical decision giving due weight to all the contributing factors. Under the influence of that kind of massive adrenaline overload, even people who are trained for combat situations make the wrong decision and kill people they shouldn’t. This woman not only isn’t trained for combat, she has PTSD, which alters your brain’s response to stress and not in a good way. There’s zero chance she was thinking rationally.
If temporary insanity is a defence in your area, I could very easily be convinced of that. I’m not convinced that she’s chronically (is that the word?) insane - I’d need a lot more information before I could be convinced of that. But I think she was probably off the rails in those moments.
If temporary insanity isn’t a possibility, I’d lean towards voluntary manslaughter: she believed she needed to do this, but it wasn’t fully justified. I’m far from sure, though - if I thought about it for long enough, I might end up voting to acquit, I don’t know. I’m glad I won’t be on your jury.
Even if she really did think he was “laughing,” when you put a bullet in someone’s head and he is lying on the ground, a taunt is not a reasonable fear of imminent death or serious bodily harm: murder one. I do not like the BWS defense. It is an excuse to execute someone for domestic violence, without benefit of trial.
Not guilty. He tried to kill her and given another chance, he might have. She had no way to know that the first shot was sufficient to neutralize the threat.
He was lying on the floor after being shot in the head. That is the opposite of “no way to know.”
I think in her mind, she didn’t have another choice. Calls to 911 didn’t help, a protective order didn’t help, the abused women’s shelter didn’t help. Where else could she have turned? In my mind, she was desperate and had been let down so often by the system that she felt the only way to keep herself and her children safe was to eliminate him.
I’d feel bad doing it, but given the circumstances outlined here, for me there’s no question that this is murder one as I, maybe imperfectly, understand the law (in particular, her statement of intent and the double tap). Thing is, if he had been approaching and menacing her when she fired, I’d be happy to acquit.