The Stress Defense
By BOB HERBERT
On the evening of Dec. 27,
1991, a Manhattan resident
named Ramon Roche ended an
argument with his common-law
wife by killing her. Court records
show that he stabbed and slashed
the woman, Lillian Rivera, nearly
two dozen times. The medical
examiner said she suffered
wounds to the face, neck, chest,
arms and hands.
After killing Ms. Rivera, Mr.
Roche went to a neighbor's
apartment, where he smoked
crack and snorted heroin. Later
that night he would tell police that
his wife had committed suicide.
Two juries have convicted Mr.
Roche of second-degree murder.
The first conviction was
overturned because of a
procedural error. At a second
trial, before a different judge, Mr.
Roche was convicted again and sentenced to 25 years to
life in prison.
But last August that conviction was also overturned, in a
ruling by the Appellate Division of State Supreme Court
that I think was both wrong-headed and dangerous. If the
ruling stands, Mr. Roche would get yet another trial. And
when you conduct a trial more than a decade after a crime,
there is always a greater danger that evidence could get
lost or misplaced, or that witnesses disappear or die, or
simply that memories fade. In short, Mr. Roche could go
free.
But the ruling, if it is allowed to stand, is especially
dangerous in that it would make it much easier for men
who kill their wives or girlfriends to escape the harshest
punishment.
At issue is the trial judge's charge to the jury. Mr. Roche's
defense was that he did not kill Ms. Rivera. Nevertheless,
the defense lawyer asked the judge, Renee White, to
instruct the jury that if it determined that Mr. Roche had
killed Ms. Rivera, it should also consider the possibility
that he had acted under the influence of an extreme
emotional disturbance.
Under state law, a defendant found to have been in the
throes of such a disturbance would be convicted of
manslaughter rather than the more serious offense of
second-degree murder. So this is not a defense to be made
available haphazardly.
For a jury to consider this defense, the evidence must
show two things: that the defendant lost control "due to
mental trauma or exposure to extremely unusual and
overwhelming stress," and that there was a reasonable
explanation for this trauma or overwhelming stress.
What happened in this case is that a man and a woman had
an argument, and the man became enraged and killed the
woman. Rage is not a defense against murder.
Justice White denied the defense lawyer's request.
In its ruling last August, the appellate panel ruled that
Justice White was wrong, and that the jury should have
been instructed to consider "the affirmative defense of
extreme emotional disturbance." The panel's majority said
there was sufficient evidence from which a jury could
conclude that the defendant had "lost control," and that
"the source of the rage" was the contentious relationship
of the couple, including Ms. Rivera's tendency to yell and
make "demands of the defendant."
The Manhattan district attorney's office has appealed that
ruling to the State Court of Appeals, which will hear
arguments today. The ruling has upset organizations that
provide services and legal help to victims of domestic
violence. If men who kill their mates can offer up as a
defense the fact that they were really — really — angry,
they will literally be able to get away with murder.
The Center for Battered Women's Legal Services has
joined the district attorney's appeal as a friend of the
court. A pro bono brief prepared for the center by Maria
Galeno and Jane Manning of the Salans law firm in
Manhattan said the August ruling lowered the threshold of
evidence required for the defense of extreme emotional
disturbance to the point where it would apply "to almost
any very violent killing within an intimate relationship."
The lone dissent in the Appellate Division ruling was
offered by Justice Peter Tom, who noted that the mere fact
of a savage attack was not enough to warrant
consideration of this particular defense. Otherwise, he
said, the defense, "rather than being an exceptional vehicle
for mitigation in an exceptional case involving
extraordinary emotional tumult, would be the routine
defense in every case characterized by anger and
violence."
I couldn't agree more.
nytimes.com |
