Brief Bank # B-831 (Re: F 3.32 n3 / F 9.36.5 n3 / F 9.37 n7 / F 8.10 n10 [Mental Disease Or Defect: Post Partum Psychosis].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT
JOHN DOE,
Petitioner,
vs.
C. W. TERHUNE, In His Capacity As Director of
The California State Department of Corrections,
Respondent.
_____________________________________________/
Excerpt from
PETITION FOR WRIT OF HABEAS CORPUS
THOMAS LUNDY
State Bar # 57656
Attorney at Law
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Petitioner Doe
By Appointment of Court of Appeal
Under the Central California Appellate Project
XVIII
Petitioner’s conviction and sentence were obtained in violation of his Sixth and Fourteenth Amendment rights under the federal constitution to effective assistance of counsel; and his analogous rights under Article I of the California Constitution.
These violations occurred as a result of the failure of petitioner’s trial attorney to investigate post partum depression or other post partum disorders as a basis for negating the mental state of co-defendant Roe upon whom petitioner’s aiding and abetting liability was predicated.
The following facts, among others to be presented at an evidentiary hearing after full investigation and discovery, support this claim:
1. Ms. Roe was convicted of second degree murder which required a finding of express or implied malice.
2. Implied malice requires knowledge that the defendant’s conduct endangers the life of another coupled with circumstances manifest in a conscious disregard for life. (See, People v. Whitfield (1994) 7 Cal.4th 437, 450-51. This is a subjective standard. (See People v. Watson (1981) 30 Cal.3d 290, 296-97.) Accordingly, the defendant must act with “actual knowledge” of life endangerment and conscious disregard for life. (See People v. Cameron (1994) 30 Cal.App.4th 591, 600.)
3. Petitioner was tried solely on the theory that he aided and abetted Roe’s commission of the murder. Hence, his criminal liability was necessarily predicated upon the criminal liability of Roe. (ARB (Doe) pp. 7-10.)
4. Post partum depression affects 10-20 percent of mothers. (See Appendix, p. 62.) [Note: Appendix referred to is Article Bank # A-78. CD-ROM subscribers can access this appendix by searching for A-78.]
5. Post partum depression may have a delayed onset of six weeks to three-to-four months in a course of six months to one year. (See Appendix, p. 63.)
6. Post partum disorder risk factors include the following. (See Appendix, pp. 63-64):
a. Mother of several children;
b. Very young mother;
c. Short intervals between pregnancies;
d. Marriage strain and lack of support from spouse;
e. Stressful life events;
f. Inadequate housing;
g. Poverty;
. Lack of preparation for motherhood;
. Past experience of physical, emotional or sexual abuse and/or victimization;
. Poor relationship with her own mother;
. Prior abortion or miscarriage;
. Difficulty with breast feeding;
. PMS;
. Thyroid problems.
7. Symptoms of post partum depression include (see Appendix, pp. 64-65):
. Thoughts of suicide and infanticide;
. Inability to cope; inability to deal effectively with the child;
. Ambivalence, anger or over-protectiveness toward the baby;
. Ambivalence or negative attitude toward maternal role, “maternal role conflict”;
. Anxiety and agitation;
. Irritability or explosive temper; feeling out of control;
. Feeling hopeless or helpless, overwhelmed;
. Obsessive thoughts.
8. Postpartum depression can negate express or implied malice for reasons including the following (see Appendix, pp. 65-66):
. Can severely impact clear, cogent thinking, cause impulsive behavior and reduce problem-solving skills;
. Can cause a “serious inability to concentrate characterized by muddled thinking and fogginess; or ‘phonetic zooming,’ the feeling of your mind racing, or memory loss”;
. Can cause uncontrolled reactions;
. Left untreated can lead to suicide or infanticide.
. Evidence of postpartum disorder in the present case:
. When the baby was born in September, 1994, Roe and petitioner were separated. (Exhibit O.)
. On October 13, 1994, Roe called Ms. I and was “very stressed.” (RT 373.)
. Roe told Ms. I she had no place to live, no food for the babies, she needed help, and she wanted to know whether Ms. I could take care of the babies for a while. (RT 371-73, 388-89; 395.)
. Roe told Ms. I that the children were “driving her crazy” and she “wanted to commit suicide.” (RT 373-74.)
. Ms. I took the one-month old baby, Baby K, and her one-and-a-half year old sister, Baby T, until January 23, 1995, when Roe took the two infants back from Ms. I. (RT 378.)
. Petitioner and Roe got back together around April, 1995. (Exhibit O.)
. At the end of April 1995, the entire family — petitioner, Roe and three children, who were all homeless — moved into a 10′ x 10′ room in the G’s house. (Mr. And Mrs. G had two children of their own. Mrs. G was Doe’ cousin.) (RT 504-06.)
. During the month of May, 1995, Roe made several statements indicative of frustration, anger and inability to cope with the baby. She told Mr. G that “I hate it when the baby cries all the time.” (RT 508.) Mrs. G testified that when the baby cried, Roe was not attentive to the child; rather, Roe said the baby was a brat and she did not like to listen to her cry. (RT 673.) Roe told Mrs. G that she wished the “kids would shut up because they were driving her crazy.” (Probation Report (Roe) pg. 9.) At other times, when Roe was inattentive to the baby and Mrs. G asked about this, Roe replied that ‘she didn’t want her, and she didn’t want her because she was a ‘fucking brat.’” (RT 674.) Two or three days before the killing, Roe asked Mr. P for tape because she was tired of listening to the baby cry and was going to tape her mouth shut. (RT 425-26.) Another time in May, Roe told Mr. J that she wished Baby K was dead. (RT 761-62.) Roe told Ms. B “she didn’t want this baby.” Ms. B also observed that “Roe was having a very difficult time raising her family.” (Probation Report (Roe) p. 11:12-15.)
. Based on the combination of risk factors and symptoms the present case provides a “very valid” hypothesis for concluding that Roe had a post partum disorder and was operating under its influence at the time the baby was killed. (See, Exhibit L.)
10. Petitioner’s trial counsel did not investigate post partum depression as a possible means of limiting petitioner’s liability. (Exhibit I.)
ARGUMENT VIII
THE FAILURE OF COUNSEL TO INVESTIGATE POSTPARTUM DEPRESSION VIOLATED PETITIONER’S CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL
Post partum disorders are a recognized problem which can severely impact a mother’s mental state during the first year after an infant’s birth. It may afflict up to 10-20% of post partum mothers to varying degrees. In fact, the California Legislature has passed two resolutions attempting to deal with the problems of social responsibility for an awareness of post partum psychosis. (See, 38 UCLA Law Rev. 699, 716; S. Con. Res. 23, 1989-90 Reg. Sess., ch. 83 (July 26, 1989); S. Con. Res. 39, 1989-90 Reg. Sess., ch. 87 (July 26, 1989).)
Hence, post partum disorder is a potential defense theory which should be investigated whenever a mother is charged with neglecting, assaulting or killing her infant child.
