Opinion
February 5, 2010.
Shelby County, No. 85-01174.
ORAL ARGUMENT REQUESTED.
RESPONSE TO THE ATTORNEY GENERAL'S MOTION TO SET AN EXECUTION DATE FOR GAILE OWENS AND REQUEST FOR A CERTIFICATE OF COMMUTATION
This is an unprecedented case, unlike any other that has come before this Court. This is true not only because it has been over 180 years since Tennessee executed a woman, but for a host of other reasons, including:
(1) Ms. Owens is the only inmate in Tennessee to agree to a life sentence and then receive a death sentence. She accepted a Tennessee District Attorney General's plea offer-approved by the victim's father — yet was forced to trial based on the decision of Sidney Porterfield, her co-defendant, who is likely retarded. It is unprecedented in Tennessee to execute a defendant who accepted a guilty plea and agreed to a life sentence.
(2) Many women have been convicted of murdering their husbands in Tennessee. But while they were incarcerated, paroled, or even given probation for these murders, Ms. Owens is the only woman in Tennessee who received a death sentence for the same crime. This is unprecedented in itself-but it is even more extraordinary given that she was severely sexually, emotionally, and physically abused by her philandering husband. It is unprecedented in Tennessee to execute a battered woman.
(3) Ms. Owens's case set legal precedent as it established the right in Tennessee for all post-conviction defendants to access expert services during post-conviction proceedings. In a cruel twist of irony, Ms. Owens's lawyers squandered this groundbreaking right and hired an incompetent, inexperienced expert who failed to credibly address the crucial issue of battered women's syndrome. Had they employed an expert with experience and credentials, that person would have thoroughly and effectively supported the diagnosis of battered women's syndrome and brought it to light during the appeals process. It is unprecedented in Tennessee to execute a defendant who was denied competent expert witness testimony and apt legal guidance.
4. Tennessee has executed only four women. All of them were hanged, and the last execution of a woman in Tennessee was more than 180 years ago, in 1820.
This Court has not commuted a death sentence since 1901. But a highly unusual case demands highly unusual action by this Court. Based on the unprecedented facts in this case, Ms. Owens respectfully requests that this Court deny the Attorney General's Motion to set an execution date for Ms. Owens and instead commute Ms. Owens's death sentence to life. At the very least, this Court should issue a certificate of commutation.
As the supreme judicial authority of Tennessee, this Court has the inherent, supreme judicial power under Article VI § 1 of the Tennessee Constitution (In Re Burson, 909 S.W.2d 768, 772 (Tenn. 1995)), and undisputed "broad conference of full, plenary, and discretionary inherent power" under Tenn. Code Ann. §§ 16-3-503 504 (Burson, 909 S.W.2d at 772-773), to deny the Attorney General's motion to set an execution date for Ms. Owens and instead vacate Ms. Owens's death sentence and modify it to life — action this Court has not taken since 1901. See Ray v. State, 67 S.W.553 (1901) (modifying death sentence to life); Poe v. State, 78 Tenn. 673 (1882) (modifying death sentence to life). This Court also has the statutory authority to recommend that the Governor commute Ms. Owens's sentence by issuing a certificate of commutation under Tenn. Code Ann. § 40-27-106 (see Green v. State, 14 S.W. 489 (Tenn. 1889) (recommending commutation)), order a new sentencing hearing, or recall the post-conviction mandate and grant post-conviction relief.
I. Gaile Owens Is the Only Inmate in Tennessee Who Received a Death Sentence After Accepting a District Attorney's Offer to Plead Guilty in Exchange For a Life Sentence.
Within days of her arrest, Gaile Owens told her very first attorney, Steve Shankman (now Federal Public Defender for the Western District of Tennessee), that she "was extraordinarily remorseful for hiring someone to kill her husband" and wanted to plead guilty and avoid a trial. (Exhibit 1, Affidavit of Stephen B. Shankman, p. 1). In Mr. Shankman's words, Ms. Owens's "most immediate and profound concern was the well-being of her children," and she believed that pleading guilty would spare her children and the rest of her family further pain. (Id.).
Just days before Gaile Owens's trial was to begin, on January 2, 1986, Shelby County Assistant District Attorney General (ADAG) Don Strother, offered Gaile Owens the opportunity to spare her children and her family further pain by pleading guilty and avoiding a trial. ADAG Strother indicated by letter that "after conferring with General Stanton and the family of the deceased [], the State would recommend to the Court upon a plea of guilty as charged to either count of the Indictment that a Life sentence be imposed upon your client, Marsha Gaile Owens." (Exhibit 2, January 3, 1986 Letter from Strother to Jim Marty and Brett Stein). ADAG Strother made his offer contingent upon its acceptance by both Ms. Owens and Mr. Porterfield.
Consistent with Ms. Owens's acceptance of responsibility from the beginning and with her longstanding desire to avoid a trial, Ms. Owens immediately accepted ADAG Strother's offer. (Exhibit 3, January 3, 1986 Letter from ADAG Strother to Jim Marty and Brett Stein Bearing Ms. Owens's Signature Of Acceptance). Mr. Porterfield, with whom Ms. Owens had no prior relationship and over whom she had no control, did not want to plead guilty, but wanted to go to trial. Mr. Porterfield is likely mentally retarded with a measured IQ between 67 and 75. His lawyer is currently litigating the constitutionality of his death sentence based on mental retardation in a Motion to Reopen Post-Conviction Proceedings in the Shelby County Criminal Court.See Porterfield v. State, Shelby County Criminal Court No. P 14675. Mr. Porterfield insisted at the time of trial, and continues to insist, that he is innocent of first-degree murder. As a result, Mr. Porterfield rejected ADAG Strother's plea bargain. ADAG Strother then refused to honor Ms. Owens's acceptance of the plea bargain. (Exhibit 4, Trial Transcript (In Chambers Conference), pp. 30-36). ADAG Strother told the trial court that the trials of Ms. Owens and Mr. Porterfield were unseverable — he believed that he needed the two to be tried together in order to get a conviction against Mr. Porterfield for first-degree murder. (Id.).
After ADAG Strother refused to honor Ms. Owens's acceptance of the plea bargain, Ms. Owens's trial counsel asked the court to allow Ms. Owens to plead guilty to the Court and for the Court to sentence her to life in accordance with the spirit of the plea agreement. The trial court refused. (Id., pp. 31-32,34). In their plea to the trial court, Ms. Owens's lawyers argued that "We don't think Your Honor, in a Capital Case, . . . I'm not talking about armed robbery or shoplifting or some other offense. We don't think that's a viable reason to withhold an offer of settlement to one defendant simply because another doesn't understand . . may not understand . . . doesn't have whatever facilities ( sic) to understand or accept it." (Id., p. 36). However, the trial court refused to allow Ms. Owens to plead open to the court based on ADAG Strother's insistence that Ms. Owens and Mr. Porterfield had to proceed to trial together.
Prior to her sentencing hearing, Ms. Owens also sought to have the evidence that she was willing to plead guilty and accept a life sentence introduced as mitigating evidence on her behalf. The trial court would not permit it, finding that evidence of plea negotiations is not admissible in court proceedings. As a result, the jury that sentenced Ms. Owens to death did not know that Ms. Owens had sought to avoid putting her family through a trial, accepted responsibility, and admitted that a punishment of life in prison was appropriate. Nor did they know that the DA and the victim's family believed pre-trial that a life sentence would be an appropriate punishment for Ms. Owens.
ADAG Strother's insistence that the trials of Ms. Owens and Mr. Porterfield could not be severed was based on his fear that he would not be able to use Ms. Owens's statement against Mr. Porterfield if he proceeded to trial without her because it would have been inadmissible hearsay. In that same vein, at trial, ADAG Strother introduced Mr. Porterfield's statement to the authorities implicating Ms. Owens, despite the fact that Mr. Porterfield did not testify. The introduction of Mr. Porterfield's statement against Ms. Owens violated Ms. Owens's right to cross-examine Mr. Porterfield under the Sixth Amendment andBruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620 (1968). In Bruton, the United States Supreme Court held that the admission into evidence of a non-testifying co-defendant's confession incriminating the defendant, even when accompanied by jury instructions to consider the confession only against the co-defendant, violates the Sixth Amendment.
Twenty-four years ago, Ms. Owens agreed to plead guilty and accept a life sentence. Today, she is on death row because Sidney Porterfield, a man who is likely mentally retarded, would not do the same: he refused to accept responsibility and accept a life sentence. Indeed, Ms. Owens is the only death row inmate in Tennessee who accepted a plea bargain in exchange for a life sentence, yet found herself on death row.
Based on Ms. Owens's unique position, this Court should exercise its inherent, supreme judicial power and should restore Ms. Owens's sentence to life — a sentence approved and offered by the Shelby County District Attorney and accepted by Ms. Owens over twenty-four years ago. At the very least, this Court should issue a certificate of commutation.
II. Gaile Owens Was a Battered Wife: Had the Jury Heard Details of the Abuse She Endured at the Hands of Her Husband, the Victim, at Least One Juror Would Have Voted for Life. This Court Should Exercise Its Inherent Authority to Reduce Ms. Owens's Sentence to Life, or at the Very Least, Issue a Certificate of Commutation Because It Is Against Public Policy for Tennessee to Execute a Battered Woman.
Battered wife or battered women's syndrome, now more often referred to as a subcategory of Post-Traumatic Stress Disorder, includes a cluster of behaviors: "(1) intrusive recollections of the traumatic events; (2) hyperarousal and high levels of anxiety; (3) avoidance behavior and emotional numbing (usually expressed as depression, dissociation, minimization, repression and denial; (4) disrupted interpersonal relationships from batterer's power and control measures; (5) body image distortion and/or somatic or physical complaints; and (6) sexual intimacy issues." (Exhibit 5, Lenore Walker: "Battered Women's Syndrome: Key Elements of a Diagnosis and Treatment Plan," Psychiatric Times, Vol. 26, No. 7 (July 7, 2009)). As the New Jersey Supreme Court succinctly put it in 1979, battered women's syndrome was "a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives." State v. Kelly, 478 A.2d 364, 371 (N.J. 1984). And even as early as 1984, it was "widely accepted that battered women share common characteristics of feeling shame for their situation and attempting to hide their battering from others." Brief and Appendix of Amici Curiae American Civil Liberties Union of New Jersey and the New Jersey Coalition for the Defense of Battered Women, reprinted in Amicus Briefs, 9 Women's Rts. L. Rep. 247, 249 (1986). See also, Ibn-Tamas v. United States, 407 A.2d 626, 634 (D.C. 1979) (experts report that "battered women are very reluctant to tell anyone that their husbands beat them[]").
As early as 1983, Tennessee courts recognized the concept of "battered wife syndrome." See State v. Rose Horn Leaphart, 673 S.W.2d 870 (Tenn. 1983) (identifying "battered wife syndrome" and recognizing defense counsel's use of a psychology expert to describe "the cycle that typically characterizes physically abusive marriages."); State v. Barker, 1986 Tenn. Crim. App. LEXIS 2314 (acknowledging that defendant, who killed her husband, was a "battered wife" and acknowledging that the situation "constitute[s] the sort of `exceptional circumstances' that will support probation in a case involving a death at the hands of the petitioner); State v. Kirkland, 1986 Tenn. Crim. App. LEXIS 2422 (discussing battered wife syndrome and the importance of "the petitioner['s] . . . right to explain her motivation in the incident. Given the background of abuse, the petitioner's testimony might well have made a difference in the outcome of this case."). However, in 1985, at the time of Gaile Owens's arrest and in the proceedings that led up to her January 1986 trial, the trial court and the prosecution completely dismissed any allegations or discussion of domestic abuse or battered wife syndrome, insisting that Ms. Owens must provide medical proof (Exhibit 6, Pre-Trial Hearing Transcript (Motion for Battered Women's Expert), p. 157), without which "there is not one scintilla of evidence before this court to show or indicate" that Ms. Owens had been battered. (Id., p. 155).
As discussed in Section III, infra, had Ms. Owens's trial lawyers only looked, they would have uncovered a wealth of mitigating evidence about the abuse Ms. Owens endured both as a child and in her marriage. If her post-conviction attorneys had not squandered the right to hire a qualified and credible expert witness on the issue of battered wife syndrome, they could have presented this mitigating evidence.
It was not until current counsel were preparing for clemency that a thorough and competent assessment of Ms. Owens's entire life history was conducted. Counsel hired Jan Vogelsang, a licensed clinical social worker and mitigation specialist with over twenty-five years of experience, who conducted a Biopsychosocial Assessment, based on all of the information (interviews, records, documents, memorandum) gathered during post-conviction, federal habeas, and by current counsel, as well as her own interviews with Ms. Owens. (Exhibit 8, Biopsychosocial Assessment of Jan Vogelsang). Ms. Vogelsang's affidavit represents the kind of thorough life history that a competent, credible, and experienced expert should have developed on Ms. Owens's behalf and also highlights the breakdowns both at trial and in post-conviction as Ms. Owens's case was repeatedly botched. (Exhibit 7, Affidavit of Jan Vogelsang).
A. In Actuality There Was a Plethora of Evidence Demonstrating That Gaile Owens Was Physically, Emotionally, and Sexually Battered Her Entire Life — First at the Hands of Her Father and Mother, Her Uncle, and Ultimately Her Husband
As we know today, domestic violence is cyclical. Gaile Owens was a victim of the "cycle of violence" with a "family history of domestic violence and sexual abuse across generations." (Exhibit 7, Affidavit of Jan Vogelsang, p. 7). By examining and "[u]nderstanding the role of family history in the life of Ms. Owens" including the physical, sexual, and emotional abuse, alcoholism, the rigid restrictions of the Pentecostal faith, and the secretiveness that was encouraged and ultimately enforced, "[one] can shed light on much of [Ms. Owens's] behavior, including how it is that she came to marry an abusive man, and why she was unable to extricate herself from her marriage." (Id., p. 2).
1. Gaile Owens Was Physically and Emotionally Abused and Neglected By Her Parents as a Child and Throughout Her Teenage Years
Gaile Owens was born in 1952 to Jewell and Izora Kirksey. Her father, Jewell, considered Ripley, Tennessee, home and had two sisters and a brother, whose name was Marshall. (Exhibit 8, Biopsychosocial Assessment of Jan Vogelsang, p. 2). Gaile's mother, Izora, was born in a small town in Mississippi and was the youngest of seven children. (Id.).
Both Jewell and Izora came from difficult backgrounds. Jewell was known as a "`mean-spirited man' with a `wild temper' who had a hard life as a child." Jewell's father was "known to be abusive to Jewell and his brothers and sisters and to be cruel to animals. His mother was known to be demanding and jealous as demonstrated by her temper." (Id., p. 3). Izora's father abandoned her and her six siblings when she was still an infant. (Id.). Izora has been described as "uneducated and not very intelligent. She was `small-minded' and focused on her medical problems (both real and perceived)." (Id.).
Jewell and Izora had three children — born during a period of three years. Wilson, who was born just eighteen months before Gaile, suffered from cerebral palsy. Wilson's disabilities "deeply affected emotionally and financially" the marriage of Izora and Jewell. (Id., p. 8). In fact, "Izora believed Wilson's disabilities were her fault. Jewell's mother convinced her Wilson wasn't normal because during the pregnancy Izora raised her arms above her head while hanging curtains." (Id.). Carolyn, Gaile's younger sister, was born fifteen months after Gaile. (Id., p. 7). Although Gaile was the "middle child, [she] assumed the role of the older child due to her brother's disabilities." (Id., p. 8).
Gaile's father ran a gas station in town and her mother babysat eight to ten children at a time to earn extra money. "The house was messy and it fell to Gaile to keep it clean from the time she was small. Izora prided herself on toilet training and potties were lined along the pantry hallway of their small home. Baby beds were in every room and Gaile had to sleep with a baby. There was never any privacy or special attention. Izora martyred herself before others as the caretaker of her special-needs child, Wilson. Yet at the same time, she filled the home with other children to make extra money. Little energy was left for Gaile's emotional and developmental needs," (id., p. 4), although Izora required Gaile to help her care for eight to ten other children she babysat, in addition to her brother Wilson." (Id., p. 9). Finances were always an issue in the home as "Wilson's disabilities created costly expenditures for the family." (Exhibit 7, Affidavit of Jan Vogelsang, p. 13).
Not only were finances an issue, but so was alcoholism and physical abuse. Gaile's father, Jewell, had a problem with alcohol and "came home drunk frequently." (Exhibit 8, Biopsychosocial Assessment of Jan Vogelsang, p. 4). Gaile's mother would force her to stay up at night to wait with her for Jewell to come home. "When Jewell staggered in, Izora would confront him and set up a fight." Then Izora would "use[] Gaile as a buffer and would not let her leave the room." (Id.) Ms. Owens would then be left to witness her parents fight, "watch[ing] her father re-establish his position of power in the family by beating Izora." (Id.).
Izora was not the only one in the house who was beaten by Jewell. Gaile not only "witnessed her father's beating of her mother, [but also] her disabled brother, and her sister and [she] was herself the victim of his physical violence." (Id., p. 5). Jewell's beatings "resulted in welts and bruises. Jewell's physical violence knew no bounds. One time, Gaile witnessed her father hold a knife to her mother's throat threatening to kill her." (Id., p. 4).
In addition to the physical abuse Gaile endured, "Gaile rarely had a friend come to her house because of her father's drinking and his scary behavior toward other boys and girls. She and her one girlfriend would plan the friend's visits around her father's drinking days." (Id., p. 10). In addition, "Jewell was hung up on sex and prevented normal social relationships for his daughters by scaring boys away. In fact, he . . . kept a shotgun at the door, further alienating Gaile and her sister from the opportunities to create healthy social relationships." (Id., p. 3).
Gaile's younger sister, Carolyn, dealt with the stress of their home by withdrawing and staying out of the chaos as much as possible. "As Gaile became more of a `yes' person to her parents, Carolyn used invisibility as a way to say no to Izora and Jewell. Whereas Gaile was drawn into and used as a buffer between her mother and father, Carolyn quietly avoided family conflict and ultimately spent most of her adolescence with pastor Jimmy Greer and his family. Quite the opposite, Gaile catered to her father's and mother's wishes." (Id., p. 9).
Gaile did have a reprieve "two days every two weeks with her Uncle Nicky, Aunt Nanny, and cousins Mary and Thelma. Unfortunately, this time only added to the confusion that was pervasive during Gaile's childhood. (Id., p. 8). Constantly manipulating, even this time of retreat was stressful as "Izora held the removal of this special time with her aunt and uncle and cousins over [Gaile's] head, requiring her to perform unreasonable chores with the threat of losing that break from Izora and Jewell. Gaile believed that those breaks with Uncle Nicky and Aunt Nanny were the only thing that saved her during childhood and she began to clean obsessively and perfectly to get that reward." (Id., pp. 8-9).
As a teenager, "Gaile continued to suffer in the middle of her parents' conflicts. Gaile's father would yell at her to go to bed and Izora would insist that she stay." (Id., p. 11). Gaile continued to be a good student in high school, quiet and compliant, much like she was at home. But those years were unhappy; unlike most teenage girls, Gaile "was afraid to get involved with anyone because of her father. One boyfriend had to slip in and out of the house so as to avoid her father. Girlfriends had to do the same and so relationships were brief." (Id., p. 12).
Despite the oppressiveness of her life at home, Gaile's loyalty and submissiveness to her parents endured even after she graduated from high school as she continued to live there and help out. However, a breaking point finally came "[w]hen Gaile was a young woman working and still living at home[.] [S]he had gone to stay with a friend to get relief from her situation at home. When she returned, Jewell forced Gaile to strip naked and examined her body in the presence of Izora on the pretense of looking for signs of drug use even though he had no reason to suspect her of any wrongdoing. Gaile had been a good student and had never been in trouble nor had she ever used drugs. Izora looked on without defending her daughter. Gaile was degraded, humiliated and shamed by her father's violation of her body and mistrust." (Id., p. 5). Soon after this incident, "Gaile moved into a small apartment of her own and experienced freedom for the first time." (Id., pp. 12-13).
2. Gaile Owens Grew Up in a House of Secrets Where She Was Taught By Her Mother to Lie, Steal, and Hide Things from Her Father
Gaile's mother, Izora, was an unhappy wife and mother. Izora wanted Jewell's approval "but went about getting it in the wrong way. She was a jealous woman who would steal from her husband and lie about it. In fact, Izora was jealous of everybody including her daughters. She would set the children up to be punished by rushing to the door to tell their father all the things they had done wrong during the day." (Id., p. 3). "Then she would rush to defend them [the children] after Jewell began to beat them, when it was too late." (Id., p. 4).
Izora manipulated and stole from her husband when he was drunk, often blaming Gaile if she got caught. She would "get around [Jewell] by lying and stealing when he was drunk knowing he would not be able to remember about his money. Jewell ran a gas station and kept a bag of cash and receipts in their house. Izora would wait until he passed out, steal his money and lie to him often telling him that Gaile took it. Then Izora would stand by quietly as Gaile would be beaten for her mother's offenses." (Id., p. 6). As a result of her role as her mother's scapegoat, "Gaile came to believe that her father's drinking and the abuse of her mother was her fault, that she was bad, and that she deserved to be mistreated." (Id.).
Izora's way — keeping secrets, stealing from her husband and blaming her daughters, and allowing them to take the beating for her — created a "[h]ouse of secrets" where "asking questions was met with silence and disapproval." (Id., p. 4). In fact, "When Izora's marriage to another man prior to marrying Jewell was discovered by her daughters, Izora continued to deny it even when there was no reason to do so." (Id.).
3. The Rigidity and Submissiveness Demanded By Ms. Owens's Pentecostal Faith Further Isolated Ms. Owens, Making Her Feel Fearful, Confused, and Devalued As a Woman
Gaile grew up in a home that was divided when it came to religion. Gaile's mother, Izora, "had been raised in a very fundamental Pentecostal religion, and she created a home atmosphere of fear, one lacking in joy." (Id., p. 3). Izora's church was "`legalistic' and failure to follow the rules resulted in burning in hell." (Id.). Gaile's father was Methodist, but "went along completely with her mother and enforced all the strict Pentecostal rules until the children were older." (Id., p. 7). "Izora was legalistic and believed that any broken rules doomed you to hell." (Id., p. 6). In fact, "[t]hose who broke the rules were disfellowshipped . . . So abusive were many of the beliefs of the church that in more recent years, a formal spiritual healing group and website were developed to help former members of Pentecostal churches to overcome the mental, emotional, and behavioral damages done by the teachings." (Id., p. 5).
Not only was the Pentecostal church where Gaile was raised characterized by speaking in tongues, fainting, and the laying on of hands, but also by "thought reform" which ensured that rules were enforced by dictating that "no one ever questions anything. Men and women were held to a different standard and women were to be kept childlike, to be seen and not heard. They were required to be submissive and to demonstrate that submissiveness in their dress and behavior. Men controlled the home and their wives." (Id., p. 5).
As a female child, Gaile was isolated from school classmates because of "thought reform" and because of the rigid church rules — "inflexible rules that forbade short sleeves, short hair, movies, TV, gym clothes, the state fair, fingernail polish, pants, and other normal activities," (id., p. 7), "swim[ming] or watch[ing] boys who were swimming[,] go[ing] to movies or participat[ing] in gym." (Id., p. 10). Though Gaile grew to love athletics as a child, she was never allowed to play because of church rules. (Id.).
The rules of the Pentecostal faith not only isolated Gaile, but created confusion when she was encouraged to ignore or disobey them. For instance, "when Gaile visited her cousins, she was allowed to paint her nails but her aunt and uncle would stop for polish remover on the way home and have her nails clean by the time she reached Izora's front door." (Id., p. 6). Her own father allowed her to disobey the rules, sneaking Gaile and Carolyn to see the movie "`Bambi' while swearing them to secrecy. Terrified of hell, but with a child's curiosity and longing to be like other children, Gaile went . . . The joy of that experience was followed by weeks of fearing that she would die and go to hell because she went to the movies." (Id., p. 7). When Gaile's mom got a permanent and other women in the church suddenly cut their hair, "Gaile was terrified [they] would go to hell." (Id.).
"The thought reform and legalism of the Pentecostal faith tells girls that they have no worth, they are under the control of men, and they are to submit and to hide their bodies." (Id., p. 19). The emphasis on "legalism and thought reform kept members rule-bound and living in fear." ( Id., p. 20). "This combination of religious dogma and influence that demanded the submission of women" and promoted living in secrecy and fear further emphasized the oppression that Gaile endured from her parents. (Id., p. 27).
4. Gaile Owens Was Physically and Sexually Abused by Her Paternal Uncle and Grandfather
From the ages of five to twelve, Gaile was sexually molested by her paternal uncle Marshall Kirksey. Gaile loved her Uncle Marshall because he showed her attention, taking her for tractor rides, showing her around his farm, and telling her that her first name, Marcia, was in honor of him and that this was why she had to let him touch her. (Id., p. 10). Uncle Marshall would slip his hands into Gaile's pants when she was only five years old. As time went on, Uncle Marshall would take Gaile on the tractor and "hold her tightly against him as he rubbed himself against her." (Id.). Eventually, Uncle Marshall tried to penetrate Gaile and "although he failed, Gaile was frightened enough to tell her mother." (Id.).
Sadly, when Gaile told her mother about Uncle Marshall's sexual abuse, Izora ignored her. Izora was worried that her husband would find out because she was afraid that Jewell would kill Marshall, so "she protected Marshall instead of her child." (Id.). Because of Izora's refusal to acknowledge Gaile's cry for help, "Gaile never received any intervention or treatment or even recognition or validation that she had been molested." (Id.). She did not know how to handle Uncle Marshall's professed love for her juxtaposed with his sexual assaults and found herself asking "what did I do?" (Id., p. 11). She felt dirty and ashamed and would "run into the house during [Uncle Marshall's] visits and scrub herself in the shower." (Id.).
Not only was Gaile left alone to endure Uncle Marshall's sexual abuse, but she also was forced to endure physical abuse at the hands of her paternal grandfather who would beat her with a belt buckle when he was drunk and enraged. (Id.). "As was the pattern in this family, [Gaile's] grandmother called Izora and Jewell and told them that Gaile needed to stay with them for another week because they were enjoying her so much. In truth, they wanted to wait until her bruises had healed." (Id.). This family pattern of secretiveness and protecting the abuser continued to demonstrate to Gaile "the powerlessness and helplessness of women and the confusion of their willingness to protect the abuser." (Id.).
5. The Combination of Physical, Emotional, and Sexual Abuse That Ms. Owens's Endured as a Child, Her Mother's Deceitfulness, and Her Pentecostal Faith Left Ms. Owens Isolated, Confused and Emotionally Fragile — The Perfect Candidate to Become a Battered Wife
As a child, trying to "manage her fear of church teachings about the power of men, to deal with her violent father and grandfather, to cope with the sexual abuse of a beloved uncle, and ultimately to contend with her violent and sexually abusive husband" left Gaile confused, fearful, and insecure. "[T]here was no intervention for Ms. Owens during the years of ongoing and unrelenting stress at the hands of men who did not have her best interests at heart." (Id., p. 13). Moreover, Gaile's "opportunities for developing social skills were stunted by the isolation she experienced because of her religion and her home life. Gaile [became] the submissive, approval-seeking child her parents created with their limited world view." (Id., p. 10). Studies show that "young girls, who watch their mothers beaten only to forgive and go on as though nothing happened, are believed to be at higher risk than others to marry into a relationship that is abusive. Girls who are molested are at higher risk to marry a sexually abusive man." (Id., p. 19).
"It is significant that there was an accumulation of factors that prevented [Gaile] from developing resilience and placed her at risk to one day succumb to her past and lose at her efforts to overcome the wounds in her childhood." (Id., p. 22). "Gaile was programmed from birth to comply, to ignore her own needs, to bend to the will of parents, church, husband with the eternal threat of hell ever present." (Id., p. 23). As a result, "Gaile entered adulthood with no identity of her own, an emotional fragility that she covered with an attempt at perfection, and a consuming need to be loved. Her developing years would leave her vulnerable and unable to cope when faced with accumulating stress. Her lack of understanding about freedom and independence led Gaile to create a false self fueled by aspirations of perfect behavior and a perfect life. This superficial appearance was exhausting to maintain over time and would eventually wear Gaile down." (Id., p. 13). Gaile's childhood was the beginning of the "cycle of violence" in her life and created the perfect storm, making her a prime candidate to marry an abusive man and to submit to him no matter the cost.
B. Gaile Owens's Unhappy Marriage to Ron Owens Was Rife With Emotional, Sexual, and Physical Abuse, and Infidelity
At age twenty, Gaile Owens married Ron Owens. Ron had just completed duty in the Air Force. Gaile, who was grateful that Ron wanted to date her because of her insecurity about her looks, was infatuated with Ron and "thought he walked on water." (Id., p. 13). Gaile believed that by marrying Ron she was on her way to fulfilling her dream of having an "All American Family." (Id.).
But as early as the wedding night, the problems began. Gaile realized that first night "the impact that her years in the Pentecostal church had had as she simply did not know what to do with the fear and pain of intercourse." (Id.). When Gaile bled and found sex to be painful on their wedding night, Ron threatened that he would find someone who was not so frigid to have sex with." (Id., p. 14). Thus, from the beginning their sexual relationship was troubled and unsatisfying to both. (Id.).
After less than two years of marriage, "Gaile was terrified to learn she was pregnant in 1972." She feared having a child with disabilities like her brother, Wilson. Ron, who had planned to enter school and whose goal was financial stability, was unhappy about the financial strain he felt having a child would cause. (Id.). Their first son, Stephen, was born in January 1973. (Id.). Gaile immediately began to work as a receptionist in a doctor's office to help ease some of Ron's financial stress about having a child.
With their first child at home and "[a]fter only two years of marriage, Gaile had begun to suspect that Ron was having an affair. Gaile, who was desperate for Ron's love and approval, began using medications to improve her looks and attractiveness to him." (Id.). When diet pills didn't resolve their marital problems, Gaile reverted to an early childhood behavior learned at her mother's side, a way to ease the stress and hurt, to steal. Gaile believed that by stealing additional money from Dr. Halle she would make Ron happy and relieve some of the worry about finances." (Id.). Gaile was caught and had to borrow money from her mother to repay what she had taken.
Gaile still was unable to gain Ron's approval and love. "Gaile tried to keep a perfectly clean house because Ron was a stickler for cleanliness. She ironed all their clothes." (Id., p. 15). She maintained her regimen of diet pills in order to have the extra energy boost — eventually "taking as many as three amphetamines a day . . . [leaving herself] exhausted but . . . [unable to] rest." (Id.).
During this time, "Ron's demands for sex had grown more frequent and violent." (Id.). Ron would force sex upon her, and Gaile would fail to please despite the extra energy boost from the diet pills. Unfortunately, "[n]o one, including Gaile herself, was making any connection between her childhood molestation by her uncle and sexual humiliation by her father, her church teachings and the dramatic toll these events had taken on Gaile and her marriage." (Id.). Instead, "Diet pills (amphetamines) would help Gaile to keep her weight off to please Ron, and valium would numb her to his sexual demands. The amphetamines made her feel like a supermom and superwife who could do anything. (Id.).
In 1974, Ron completed his associate degree and applied for a nursing position at Baptist Hospital. Much like his false claims of injury in Vietnam, Ron falsely claimed on his employment application that he had a bachelor's degree. Though Ron was hired, the hospital soon found out about his dishonesty and he was placed on probation at the hospital." (Id.). Gaile similarly lied to Ron in order to gain his approval — she did not know how to express her needs to Ron and "pretended everything was alright when it was not." (Id., p. 16). Because "making Ron happy was central to her existence . . . [Gaile] pretended everything was alright when it was not." (Id.).
Ron was not only violent in the bedroom, but was often violent with Gaile when he was angry — hitting her when he lost his temper. In addition, Ron continued to demand non-traditional sex. (Id.). The violence in the bedroom escalated the night before the scheduled C-section of their second son, when Ron insisted on sex. "Despite her discomfort . . . [Ron] became angry and frustrated with [Gaile] and kept trying to penetrate her." (Id.). The following morning, Gaile was bleeding profusely and upon arrival at the hospital was told she had a partial abruptio placenta, or a torn placenta, which is very often caused by physical trauma. (Id., p. 16).
After the birth of their second son, Brian, Gaile again began using diet pills and valium to lose weight — "she was willing to do anything to get the weight off and please Ron." (Id.). Also, after Brian's birth, "Ron's demands for sex and use of violence during sex increased. Ron began using objects to penetrate Gaile which made sex even more painful and difficult." (Id.). In addition to Ron's increasing demands and use of violence during sex, Gaile again suspected that Ron had a girlfriend. "Gaile believed that their financial stress and her weight was driving him to commit adultery." (Id.).
In hopes that she could ease the financial stress, Gaile, who was working in another doctor's office, again turned to stealing from her employer. However, this time, Gaile was caught forging checks and the doctors pressed charges. (Id.). While friends assisted by helping Gaile find a lawyer and even a psychiatrist, "Ron refused to offer any help or support to Gaile." (Id.). Gaile went to jail for 60 days pending disposition of charges, ultimately pleaded guilty, and was sentenced to five years probation and ordered to make restitution. (Id., p. 17).
"Over the next two years, Gaile worked and mothered her children, attended church and worked to pay the restitution she owed the doctors. Trying to redeem herself and pushing herself on little sleep and with the side of amphetamines for energy, Gaile enrolled at Shelby State Community College in 1980 and attended through the winter of 1981." (Id.). At the same time, Ron began to travel, attending seminars and recruiting nurses. Gaile again believed that Ron was involved with other women — particularly women with whom he worked at the hospital (in fact, he was involved with a nurse named Gala Scott) — and was forced to endure even greater violence in the bedroom. Ultimately, "sex with Ron had become marital rape" as Ron began "using a wine bottle and a pot pipe shaped like a penis and testicles to penetrate her. For Gaile it was painful and degrading, but she submitted while begging him to stop." (Id.).
Ron's charming and charismatic personality caused women at the hospital to flock to him, but often his behavior crossed a line. On one occasion he brought a penis-shaped birthday cake to a nursing supervisor at the hospital. (Id., p. 17).
Eventually, "Ron and Gaile no longer had any sexual relationship at all and while sex was a miserable experience for Gaile, she took Ron's rejection as proof of her worthlessness . . . honesty and respect between Gaile and Ron was no longer even a pretense. Ron's disdain for Gaile was no secret and he told her that he stayed with her only because of the children. When she asked him if he could say anything nice about her, he said, `you don't sweat much for a fat person.'" (Id., pp. 17-18). Gaile tried to talk to Ron about their marriage, but he threatened to successfully take the boys from her because of her history of her forgeries. "The thought of losing her boys drove Gaile over the edge emotionally and the fear of that loss consumed her." (Id., p. 18).
"Gaile was overweight, depressed, and in fear of losing not only Ron but her children. Growing more and more anxious about her situation, her fears intensified when Ron failed to show up for a dinner with the boys and called her to say that he was staying with Gala Scott, who had a miscarriage. Over the next few months, Gaile grew increasingly agitated and anxious. She was beginning to hate her image in the mirror and felt a self-loathing over Ron's rejection that she could not control." (Id., p. 18).
"In late 1984, Gaile, feeling abandoned and alone, followed Ron to the hospital early one morning, suspecting that he was meeting Gala. She found Ron and Gala together in the parking lot. Gaile confronted Ron. He called her a `bitch' and ordered her to never follow him again. He slapped her and pushed her into the car. From that moment, Gaile was changed forever. Whatever tenuous threads that had kept her together were broken and her subsequent actions that resulted in Ron's death were set in motion." (Id., p. 18).
The combination of Gaile's fear of Ron taking her sons from her, along with the reality of Ron's infidelity, "created a panic and fear that was insurmountable and obscured her already impaired judgment. Ron's affairs were rejection enough but the threatened loss of her boys after the years of faith, dedication and submission to physical and sexual abuse, left Gaile in a state where she could no longer cope. Gaile succumbed to her feelings of overwhelming helplessness. Unable to commit an act of violence even in response to years of accumulated abuse, Gaile sought and found others who could initiate a process that she could not control resulting in the death of her husband." (Id., p. 29).
C. Having Been Caught in the Cycle of Violence Her Entire Life, By the Time of Her Husband's Murder, There Is No Question That Gaile Owens Suffered From Battered Women's Syndrome When She Hired Someone to Kill Her Husband
As Jan Vogelsang has so eloquently stated, "It is impossible in these cases to point to one life event, one incident, one moment in time and say with confidence that this is why someone took a life. It is the accumulation of stressful factors over a lifetime that contribute to a breakdown of functioning." (Id., p. 20). "For Gaile, the combination of religious dogma and influence that demanded the submission of women, a violent and abusive father, an abusive uncle, an abusive grandfather, a mother who stayed in her marriage and failed to protect her children from the abusers, made life as a female demanding and shameful. As a result, Gaile spent her energy trying to please, seeking approval, fearing hell and damnation, and craving love." (Id., p. 28). As a result, "Gaile was a typical battered woman — having been raised to endure abuse and neglect as a child and then married a man who also abused her." (Id., p. 27).
In examining the history of Gaile Owens, "it is significant that there was an accumulation of factors that prevented her from developing resilience and placed her at risk to one day succumb to her past and lose her efforts to overcome the wounds in her childhood. Gaile was programmed from birth to comply, to ignore her own needs, to bend to the will of parents, church, husband with the eternal threat of hell ever present." (Id., p. 23). Some of these risk factors include an alcoholic, violent father; a mother who used her as a buffer; exposure to the Pentecostal faith, legalism, thought reform; fear of damnation and lack of joy; a religion that belittled and demeaned females and taught submission to men; abuse by her father, mother and grandfather; sexually abuse by her uncle; isolation from opportunities to develop independence and identity; and, isolation from opportunities to develop social skills and healthy relationships. (Id., pp. 23-24). Ultimately, "Ms. Owens's development had impaired her abilities to reason, to step back, to soothe herself, and examine her options rather than react to her impaired judgment, insight and decision-making. ." (Exhibit 7, Affidavit of Jan Vogelsang, p. 15).
As a result, the psychological, sexual, and physical abuse by her husband was more than Ms. Owens was equipped to handle. Ron's "continuing pattern of behavior that include[d] physical and non-physical manifestations of power and control," was especially devastating as it was accompanied by psychological abuse.See Statement of Amici Curiae National Clearinghouse for the Defense of Battered Women and Tennessee Coalition Against Domestic and Sexual Violence In Support of Gaile Owens, Appendix: Brief of Amicus Curiae National Clearinghouse for the Defense of Battered Women, n. 6. Researchers have noted that "At the interpersonal level, psychological abuse accompanying violence often invokes feelings of guilt and shame in the battered victim. Men define violence as a response to their wives inadequacies or provocations which leads battered women to feel that they have failed. Such character assaults are devastating and create long-lasting feelings of inferiority . . . Psychologists working with battered women consistently report that self-confidence wanes over years of ridicule and criticism." Id., pp. 10-11.
Based on her life history of abuse and the abuse in her marriage, Ms. Owens was in fact a battered women and suffered from what was known at the time as Battered Women's Syndrome. As discussed supra (see pp. 5-6), the criteria for battered women's syndrome includes a cluster of behaviors "most of which are incredibly consistent with Gaile's behavior and experiences":
(a) posttraumatic stress and re-experiencing the trauma,
(b) high levels of anxiety and arousal,
(c) emotional numbing, avoidance behaviors, and depression,
(d) disrupted interpersonal relationships,
(e) distorted body image and physical illnesses, and,
(f) sexual issues, including feelings of guilt, shame, and jealousy.
"Ms. Owens also meets the criteria for Post-Traumatic Stress Disorder, in Remission." (Exhibit 8, Biopsychosocial Assessment of Jan Vogelsang, p. 27).
Because Gaile Owens is a battered woman and because public policy of Tennessee would not condone the execution of a woman who has endured a life of physical, sexual, and psychological abuse about which the courts and the jury knew nothing, this Court should exercise its inherent, supreme judicial power and should reduce Ms. Owens's sentence to life imprisonment. At the very least, this Court should issue a certificate of commutation.
III. No Court or Jury Has Ever Fully or Properly Considered Compelling, Mitigating Evidence that Ms. Owens Suffered From Battered Women's Syndrome as a Result of Her Husband's Emotional, Physical, and Sexual Abuse Because of a Series Of Failures By Trial Counsel, Post-Conviction Counsel, and the Trial and Post-Conviction Courts
Because of breakdowns in the judicial process at every turn, no court or jury ever heard that Ms. Owens was a battered woman and suffered from battered women's syndrome. The jury that sentenced Ms. Owens to death heard not a word about her husband's abuse or about battered women's syndrome because of the trial court's lack of knowledge relative to the topic and her trial lawyers' failure to investigate, despite the fact that Ms. Owens had revealed significant details of her husband's emotional, sexual, and physical abuse both to her lawyers and to mental health professionals prior to trial. Trial counsel spent a mere two hours investigating for the penalty phase of trial. During post-conviction proceedings, despite the fact that Ms. Owens's first set of post-conviction lawyers fought hard for the right to retain a battered women's expert, her second set of post-conviction lawyers squandered that opportunity by hiring a graduate student with a degree in counseling and failing to present the credible and compelling evidence that Ms. Owens suffered from battered women's syndrome that was available. Finally, in federal court, Ms. Owens was unable to present her credible and compelling evidence of her life-long history of abuse because she was bound by the AEDPA and its restrictions on the presentation of evidence outside the state court record. As a result, no court or jury has ever had the opportunity to fully consider compelling mitigating evidence that Ms. Owens "suffered at the hands of her husband, who was, like her father, mother, and her grandfather, physically abusive; like her uncle, sexually abusive; and like both of her parents, psychologically and verbally abusive and emotionally neglectful. Gaile was a typical battered woman — having been raised to endure abuse and neglect as a child and then married a man who also abused her." (Exhibit 8, Biopsychosocial Assessment of Jan Vogelsang, p. 27).
Over and over again, this compelling evidence was not presented. This was not the fault of Ms. Owens, but rather due to the ineffectiveness of trial counsel, the ineffectiveness of post-conviction counsel, and the federal statutory restrictions under the AEDPA. Indeed, had this evidence ever been properly presented, it would have caused at least one juror to vote in favor of a life sentence or would have persuaded the post-conviction court to vacate Ms. Owens's death sentence and resentence her to life. Today, this evidence should compel this Court to refuse to set an execution date for Ms. Owens and instead commute Ms. Owens's death sentence to a sentence of life.
A. Gaile Owens Revealed Both To Her Trial Lawyers and To Mental Health Professionals Details About Her Husband's Abuse and Mistreatment Of Her, Yet The Jury That Sentenced Her To Death Heard Nothing About It
1. Ms. Owens Told Her Trial Attorneys Before Trial About Her Husband's Abuse
When Gaile Owens was arrested in 1985 for hiring Sidney Porterfield to kill her husband, she, like most women suffering from battered women's syndrome, initially reported to law enforcement officers only that she had "bad marital problems" with her husband and that "over the years, and I just felt like he had been cruel to me," although "there was very little physical violence." Owens v. State, 746 S.W.2d 441, 444 (Tenn. 1988). Before her arrest, Ms. Owens had been audio-taped without her knowledge talking to a police informant and had revealed that she hired someone to kill her husband because "they had a bad 13 year marriage." (Exhibit 9, General Assignment Report of Investigation, p. 7).
Ms. Owens's statements regarding her husband's cruelty and that "there was very little physical violence" did not, as state and federal courts have claimed, discount the fact that she was abused by her husband. Instead, in the context of a domestic violence case, her reporting to law enforcement is quite consistent with a battered woman who, as part of the syndrome, feels shame and attempts to hide her battering from others. See Statement of Amici Curiae National Clearinghouse for the Defense of Battered Women and Tennessee Coalition Against Domestic and Sexual Violence In Support of Gaile Owens, ¶ 7, and Appendix: Brief of Amicus Curiae National Clearinghouse for the Defense of Battered Women, pp. 6-10.
However, just days after her arrest, when talking in confidence with her newly appointed lawyer, Steve Shankman, Ms. Owens revealed more about her relationship with her husband, explaining that Ron Owens "was abusive and cheated on her regularly" and had threatened to take custody of their children if she asked for a divorce. (Exhibit 1, Affidavit of Stephen B. Shankman, pp. 1-2; Exhibit 10, Affidavit of Dr. Lynne Zager, p. 2). After talking with Ms. Owens about her husband's abuse and infidelity, Mr. Shankman believed that Ms. Owens's best line of investigation and defense was battered women's syndrome. (Exhibit 1, Affidavit of Stephen B. Shankman, p. 2).
Attorney Shankman withdrew from his representation of Ms. Owens just weeks after his initial appointment (which was for the purpose of her arraignment and preliminary hearing) because he was unable to reach an agreement with Ms. Owens regarding his payment as her retained lawyer and declined appointment by the Shelby County Criminal Court. (Exhibit 1, Affidavit of Stephen B. Shankman, p. 2).
Ms. Owens also told her next set of trial attorneys, Wayne Emmons and Jim Marty, who were appointed to represent her in May 1985, about Ron Owens's abuse and adultery. As a result, the lawyers requested that the trial court provide funding for specialized expert assistance in battered wife syndrome: "We believe and honestly state to the court that we believe this case has a meritorious defense in the battered-wife syndrome." (Exhibit 6, Pre-Trial Hearing Transcript (Motion for Battered Women's Expert), p. 152). "We don't believe that a thirty minute visit by a jail doctor can determine if she needs to be examined psychiatrically for matters that are way beyond the purview of competence to stand trial and insanity at the time of the commission of the alleged offense. We're talking in terms of state of mind. We're talking in terms of criminal intent. We're talking in terms of a highly specialized and very unusual defense, that being battered-wife syndrome." (Id., p. 148). Mr. Emmons went on to admit that he was inexperienced in the area of battered wife syndrome, making it even more critical that Ms. Owens receive expert assistance: "I've never encountered this before. I don't know if a battered-wife syndrome can cause a person to be under the — to have a mental disease or defect to the extent that you cannot appreciate the wrongfulness." (Id., p. 160). But the trial court was unsympathetic and retorted: "Isn't that a question for you to school yourself on as counsel?" (Id.).
In order to further demonstrate the need for an expert in battered wife syndrome, Mr. Marty informed the court about a few of the specifics of the abuse: "During the course of our investigation with Ms. Owens, we have determined and learned from her that the deceased engaged in certain sexual perversions, to wit, sodomy, fellatio, to the point where she was required to throw up, to the point where she was — her rectum was torn . . ." (Id., p. 157). But, the prosecution insisted that Ms. Owens's word was not enough: "There is not one scintilla of evidence before this court to show or indicate" that Ms. Owens had been battered. (Id., p. 155) Similarly, the trial court insisted that the lawyers should provide medical proof that Ms. Owens was battered, and thus denied the request for funding. (Id., p. 157). Instead, the trial court ordered that Ms. Owens receive the typical competency/insanity evaluation from Midtown Mental Health Center: It's "the only thing I can do." (Id., p. 163).
2. Ms. Owens Told Dr. Lynne Zager, A Psychologist Who Evaluated Ms. Owens Prior to Trial, About Her Husband's Abuse
In accordance with the trial court's order, Ms. Owens was evaluated by Dr. Lynne Zager of Midtown Mental Health Center, which had an office located in the Shelby County Jail. (Exhibit 11, Affidavit of Dr. Lynne Zager, pp. 2,4). Dr. Zager had been instructed by the court to evaluate and to opine only about Ms. Owens's competency to stand trial and whether she was insane at the time of the offense, but not about battered wife syndrome or any other penalty phase mitigation. (Exhibit 11, October 3, 1985 Order Directing Evaluation of Defendant). In fact, Dr. Zager was not informed by the court, the prosecution, or Ms. Owens's lawyers that there was a question about whether Ms. Owens suffered from battered wife syndrome or that battered wife syndrome had any relevance to her evaluation whatsoever. (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 2).
On October 22, 1985, Dr. Zager met with Ms. Owens and conducted her competency/sanity evaluation. During the evaluation, Ms. Owens revealed to Dr. Zager "significant information about her relationship with her husband, including affairs, sexual humiliation and overall mistreatment of her, along with the impact his behavior had on her psychologically. Ms. Owens indicated she was depressed, insecure, fearful of him, and could not cope. Ms. Owens was fearful because her husband told her that if she asked for a divorce, he would take custody of the children and keep them from her." (Id., p. 2; Exhibit 12, Notes from Dr. Lynne Zager regarding October 22, 1985 Evaluation of Gaile Owens). Ms. Owens described the desperation of her situation to Dr. Zager: "Last 4-5 years affairs. Didn't admit but didn't deny. None of my business. I run house. It built up in me. I felt like explode. Ask for divorce. He told me I never get kids." (Id.). As a result of the information Ms. Owens provided to Dr. Zager, "it was [her] impression Ms. Owens was a battered woman and that she could have attempted to assert that she had battered women's syndrome to explain her behavior at the time of the offense." (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 2).
However, in accordance with the trial court's order, Dr. Zager simply informed the court that Ms. Owens was competent to stand trial and that she had not reached a conclusion about Ms. Owens's sanity because Ms. Owens was reluctant to provide information about the crime itself without first speaking with her lawyers. (Exhibit 13, November 15, 1985 Letter from Dr. Lynne Zager; Exhibit 10, Affidavit of Dr. Lynne Zager, pp. 3-4). In her 2009 affidavit, Dr. Zager explained that Ms. Owens's reluctance to discuss the crime was not at all uncooperative but was because "Ms. Owens was uncomfortable discussing the specifics of the crime until she had the chance to talk to one of her attorneys." (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 4). Though Dr. Zager "tried on several occasions to speak with [Ms. Owens] about the facts of the crime . . . she indicated she had not yet been able to speak with her attorneys. (Id.).
The post-conviction trial court and the Sixth Circuit incorrectly characterized Ms. Owens's failure to discuss the facts of the crime during Dr. Zager's evaluation as "uncooperative."Owens, 549 F.3d 399, 406-407 (6th Cir. 2008);Owens, 13 S.W.3d 742, 750 (Tenn.Crim.App. 1999). Dr. Zager's affidavit corrects that misunderstanding. In fact, Dr. Zager "was very disappointed to see that that opinion characterized Ms. Owens as `uncooperative' in relationship to my evaluation of her." As Dr. Zager emphasized, "the forensic team, including myself, did not perceive Ms. Owens to be uncooperative at all. Instead . . . Ms. Owens provided me with very personal and significant information relating to her unhappy marriage, her husband's affairs, and her depression and desperation in the months and years prior to the offense. Ms. Owens simply wanted to speak with her attorneys before discussing the specifics of the crime." (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 4).
Unfortunately, Dr. Zager did not have the opportunity to talk with Ms. Owens's trial attorneys. Neither Mr. Emmons, Mr. Marty, nor Mr.Stein ever interviewed Dr. Zager about her evaluation of Ms. Owens or asked to review her file or notes. Consequently, they never knew that Dr. Zager believed, and would have testified that, Ms. Owens was a battered woman. (Id., p. 3). Had Ms. Owens's lawyers talked to Dr. Zager or obtained her file, they would have had the evidence they needed to show the trial court that a battered women's expert was necessary and critical to the presentation of Ms. Owens's case at trial. (Id.).
3. After the Trial Court Refused to Appoint a Battered Women's Expert, Ms. Owens's Lawyers Not Only Failed to Obtain Dr. Zager's File or Talk to Dr. Zager, They Also Failed to Obtain Any Records Whatsoever and Do Any Investigation to Prepare For Ms. Owens's Sentencing Hearing
Having failed to obtain Dr. Zager's file or to discuss with Dr. Zager her evaluation of Ms. Owens, and without an expert in battered wife syndrome, Ms. Owens's lawyers abandoned any investigation relating to Ms. Owens's allegations of abuse, and in effect, abandoned any investigation at all in preparation for Ms. Owens's sentencing hearing. As timesheets filed in this Court in order to obtain payment indicate, Ms. Owens's lawyers spent only two hours investigating to prepare for Ms. Owens's sentencing hearing. (Exhibit 14, Timesheets of Jim Marty and Brett Stein). In fact, Ms. Owens's lawyers failed to gather any records whatsoever and failed to interview any witnesses, including Ms. Owens's family members and friends.
Prior to trial, Ms. Owens's lawyers had also pursued an investigation of Ron Owens's infidelity by requesting from the prosecution in discovery letters, notes, etc. relating to affairs, etc. that they believed were collected during a search of Ron Owens's office and home. This line of investigation was also abandoned when the prosecution lied to the trial court and to Ms. Owens's lawyers and reported that no such evidence existed.See Section IV, infra.
Wayne Emmons, who represented Ms. Owens from May 1985 through December 1985 and had signed most of the pleadings filed in Ms. Owens's case, including those relating to obtaining expert funding and evidence of Ron Owens's infidelity, withdrew just one month before Ms. Owens's trial began. At that time, Brett Stein was appointed to assist Jim Marty.
The only witness that Ms. Owens's lawyers contacted was Dr. Max West, who Mr. Stein called just two weeks prior to trial. Dr. West was a psychiatrist who had seen Ms. Owens in 1978 for one, one-hour therapy session. During his hour-long session with Ms. Owens, Dr. West compiled a very brief history from Ms. Owens, including information about her brother's physical and mental disabilities, her mother's deceitfulness, her father's strictness, indications of sexual problems in Ms. Owens's marriage in the past, and Ms. Owens's own acknowledgment of her problems with lying and stealing. (Exhibit 7, Affidavit of Jan Vogelsang, pp. 4-6). In response to Mr. Stein's inquiry, Dr. West provided a copy of his file to Ms. Owens's lawyers just days before trial and agreed to testify on Ms. Owens's behalf at sentencing regarding the brief history that he obtained. However, but for the brief history that he gathered during his one-hour session, Dr. West had no additional information about Ms. Owens from her lawyers nor did he have an opportunity to interview Ms. Owens prior to trial.
With no expert witness, no records, and no social history whatsoever, Mr. Marty and Mr. Stein only called three witnesses to testify on Ms. Owens's behalf at sentencing — Dr. Max West and two women who worked with Ms. Owens in the Shelby County Jail. Ms. Owens did not testify on her own behalf-which is not surprising given that Ms. Owens had not revealed her husband's physical, sexual, and psychological abuse to anyone prior to her arrest, (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 3), and given the complete lack of investigation and support Ms. Owens received in preparation for trial. Testifying on her own behalf at trial in order to reveal the abuse that Ms. Owens, like most battered women, had hidden for years from the rest of the world was understandably not an option for a depressed, insecure, and fearful Ms. Owens.
Dr. West's testimony at sentencing, while hampered by his limited knowledge of Ms. Owens, was ultimately even shorter than expected because Ms. Owens's attorneys did not know that hearsay was admissible in the penalty phase. As a result, they failed to properly overcome the State's hearsay objection to Dr. West's testimony. As a result, Dr. West was unable to testify about the brief history Ms. Owens had provided to him and instead simply indicated that Ms. Owens had some unspecified and undefined "severe problem." (Exhibit 15, Trial Transcript (Testimony of Dr. Max West), p. 1905). At post-conviction, Mr. Marty claimed that he had purposefully limited Dr. West's testimony because he was afraid that Dr. West would testify that Ms. Owens had homicidal tendencies.Owens, 549 F.3d at 414. Dr. West testified, at the very same post-conviction hearing, that he had never told Mr. Marty that Ms. Owens had homicidal tendencies and that indeed she did not.Id.
In reality, "even though the information Dr. West had was minimal (which is normal for a mental health professional after spending only one hour with a patient, who is likely to minimize any problems) and dated, there was information in Dr. West's reporting letter that would have stood out" and should have been further explored. (Exhibit 7, Affidavit of Jan Vogelsang, p. 4). This information includes information about Ms. Owens's brother, Wilson, and his disabilities, "which played a major role in Ms. Owens's life,"; information that "Ms. Owens stated that as a child she was exposed to deceit and lying on the part of her mother"; indications that Ms. Owens had "sexual problems in the past" in her marriage; Ms. Owen's admissions "during that first hour to lying about money and taking money for her family"; and "answers that intimate that Ms. Owens's childhood was very unhappy and that she had great disdain for herself." (Id., pp. 5-6).
Importantly, Dr. West testified in post-conviction that had he been provided with complete social history information relating to Ms. Owens, he would have agreed with the findings of post-conviction expert, Eric Gentry, who opined that Ms. Owens did suffer from battered women's syndrome and post-traumatic stress disorder.Owens, 13 S.W.3d at 753-754. . After a review of Mr. Gentry's interviews and findings, Dr. West agreed with Eric Gentry's conclusions and ultimately testified at post-conviction that he believed Ms. Owens was "ideally situated" to be a victim of abuse.Owens, 13 S.W.3d at 754.
Gaile Owens has been criticized by the courts for not taking the stand herself and testifying about both the abuse she endured at the hands of her husband and her suspicions about her husband's unfaithfulness. See Owens, 13 S.W.3d at n. 4;Owens, 549 F.3d at 406. What the courts have failed to understand is that battered women's syndrome is a serious mental disorder that includes "low self-esteem, self-blame, anxiety, depression, fear, suspiciousness, and loss of belief in the possibility of change." (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 2). Ms. Owens's low self-esteem, self-blame, anxiety, depression, and fear did not disappear after the death of her husband. As Dr. Zager noted at the time of her evaluation in October 1985, Ms. Owens was still very clearly depressed, anxious, insecure and fearful. (Id., p. 3).
As a result, because of the trial court's failure to provide expert funding, her lawyer's failure to undertake any investigation or develop a social history, and the prosecution's misrepresentations regarding the evidence, the jury never heard that Ms. Owens suffered from battered women's syndrome or that she had endured years of mental torture because of her husband's unfaithfulness or that her husband threatened to take custody of her boys if she asked for a divorce.
"What happened in Ms. Owens's case is a complete and utter failure to investigate and pursue obvious red flags identified in Ms. Owens's own reporting to her attorneys, her [evaluation with Dr. Zager], and Dr. West's file. Counsels' failure to gather records, to speak with family members or friends, to interview mental health professionals at Midtown and review their file, or to timely interview Dr. West and review his file, was egregious and did not meet even the minimal standards for mitigation investigation and the presenting of mitigating evidence in court." (Exhibit 7, Affidavit of Jan Vogelsang, pp. 6-7). Because of these failures, Ms. Owens was sentenced to death.
B. During Post-Conviction Proceedings, Lawyers for Ms. Owens Successively Litigated the Right to Funding for an Expert in Battered Women's Syndrome, But Then Ultimately a New Set of Lawyers Hired a Graduate Student With No Expertise in Battered Women's Syndrome, No Credibility with the Court, and No Experience as a Testifying Expert; As a Result, the Evidence Presented to the Post-Conviction Trial Court Was Not Credible and Was Discounted
1. From the Time of their Appointment, Post-Conviction Lawyers Ron Gilman and Stephen Shankman Pursued Funding for an Expert in Battered Women's Syndrome to Assist Them In Their Investigation and to Testify at a Hearing
In 1990, after the conclusion of Ms. Owens's direct appeal, now Sixth Circuit Judge Ron Gilman and Stephen B. Shankman were appointed to represent Gaile Owens in state post-conviction proceedings. Judge Gilman asked Mr. Shankman to assist him, and Mr. Shankman agreed because he was "so disappointed that Ms. Owens had not been allowed to plead guilty, that her attorneys had not raised a battered women's defense and that Ms. Owens had received the death penalty" after he had withdrawn from his representation of her prior to trial. (Exhibit 1, Affidavit of Stephen B. Shankman, p. 2).
Because both Judge Gilman and Mr. Shankman believed from the outset that the centerpiece of Ms. Owens's case was that she suffered from battered women's syndrome, they contacted Dr. Lenore Walker. (Id., p. 2). At the time, Dr. Walker was the pre-eminent expert on battered women's syndrome. It was, in fact, Dr. Walker's research that first identified the cycle of violence associated with battered women and coined the term "battered women's syndrome." Because of this expertise and the importance of her research, she was asked to testify before Congress and the Senate about family violence and battered women on multiple occasions in the 1980s.
Judge Gilman and Mr. Shankman asked Dr. Walker to review documents relating to Ms. Owens "to determine if there is reason to believe that Ms. Owens was a battered woman and if her history of victimization influenced her behavior and functioning." (Exhibit 16, Affidavit of Dr. Lenore Walker, p. 2). Dr. Walker did so, and opined that "there is a strong possibility that Ms. Owens was battered and subjected to chronic sexual abuse by her husband." (Id.) Dr. Walker indicated that additional investigation and mental health evaluations would be necessary to make a final diagnosis and indicated her willingness to work on Gaile Owens's case. (Id.) Dr. Walker agreed to work on Ms. Owens's case if funding was approved. (Id.).
Much like at trial, the post-conviction trial court denied Ms. Owens's motion for expert funding. Judge Gilman and Mr. Shankman took an interlocutory appeal that they pursued to this Court. Finally in 1995, this Court ruled that Ms. Owens, and all capital petitioners, were entitled to expert funding in post-conviction proceedings. Owens v. State, 908 S.W.2d 923 (Tenn. 1995). Ms. Owens and her lawyers now had the approval they needed to go forward in post-conviction proceedings with the battered women's syndrome expert that she was denied ten years before at trial. However, after their four-year fight for expert funding, Judge Gilman became a candidate for judge on the United States Court of Appeals for the Sixth Circuit. (Exhibit 1, Affidavit of Stephen B. Shankman, p. 3). As a result, both Judge Gilman and Mr. Shankman withdrew from their representation of Ms. Owens.
2. Newly Appointed Lawyers with the State Post-Conviction Defender's Office Squandered the Hard Fought Right To Expert Assistance By Hiring A Graduate Student to Testify at Ms. Owens's Post-Conviction Proceedings
In spite of the investment that Judge Gilman and Mr. Shankman made in order to obtain funding to hire a qualified battered women's expert, Paul Morrow of the Post-conviction Defender's Office, who was subsequently appointed to represent Ms. Owens along with Gerald Green of Memphis, did not hire Lenore Walker or a psychologist or psychiatrist or social worker of her caliber with expertise in battered women's syndrome. (Exhibit 7, Affidavit of Jan Vogelsang, p. 10). Instead, they hired Eric Gentry, a "certified trauma specialist" with a Master's Degree in counseling and a "certificate of advanced study" in traumatology. (Id.). See also, Owens, 13 S.W.3d at n. 4. At the time of his testimony at Ms. Owens's post-conviction hearing, Mr. Gentry was enrolled in a Ph.D. program studying marriage and family therapy and psychotraumatology in Florida but had just finished hiking the Appalachian Trail. (Id.). Mr. Gentry had never published, had no training or experience in forensic psychology, and had never before testified as an expert witness and was clear in his testimony that he would never take the stand again because it was too difficult. (Exhibit 7, Affidavit of Jan Vogelsang, p. 11); Owens, 13 S.W.3d at n. 4.
Mr.Green was "local counsel." His duties were primarily ministerial.
Prior to the hearing, Mr. Morrow had Eric Gentry do a "Psychosocial Assessment" of Gaile Owens. Mr. Gentry's assessment was based on Mr. Morrow's investigation, a few interviews Mr. Gentry did on his own, and records that had been gathered by Mr. Morrow. Unfortunately, Mr. Gentry's "Assessment" was far from thorough, incorporating too few interviews, historical records, and no development of inter-generational patterns. Mr. Gentry's report introduced "Ms. Owens's abuse . . . immediately with no explanation about the relevance of her family background, parental relationships, and her chronological history." (Exhibit 7, Affidavit of Jan Vogelsang, p. 12). As experienced clinical social worker and mitigation specialist Jan Vogelsang has explained, "A mitigation expert should be trained to put a life into context, not to pluck out pieces that are the most convenient." (Id.). Mr. Gentry also failed to include critical and detailed information about Ms. Owens, including insight into the financial struggles during Ms. Owens's childhood, the effect that her brother's disability had on the family, an examination of the impact of the teachings of the Pentecostal faith on Ms. Owens and her family, Ms. Owens's positive conduct as a child and adolescent, and generally the lack of intervention for Ms. Owens while she "deal[t] with her violent father and grandfather, . . . cope[d] with the sexual abuse of a beloved uncle, and ultimately contend[ed] with her violent and sexually abusive husband." (Id., pp. 13-14).
Partially to blame for Mr. Gentry's limited assessment was the incomplete investigation of Mr. Morrow. While a number of interviews were conducted, Dr. Lynne Zager, the first mental health professional to see Ms. Owens after her arrest, was never interviewed; nor was Mr. Shankman, Ms. Owens's first lawyer and first confidante after her arrest. These were critical mistakes (Id., p. 11), as both Dr. Zager and Mr. Shankman could have provided critical information about Ms. Owens's abuse, her husband's infidelity, and her motivations for the crime, as well as context for a claim that Ms. Owens suffered from battered women's syndrome. Along with these investigative failures, Mr. Morrow failed to properly call lay witnesses, who had been interviewed, to testify on Ms. Owens's behalf, including co-workers of Mr. Owens who could have testified about their suspicions of abuse, friends of Mr. Owens who could have testified about Mr. Owens's repetitive infidelity and the illicit relationship he was involved in at the time of his murder, and friends and family members of Ms. Owens who could have testified about physical and sexual abuse in Ms. Owens's family of origin, her father's alcoholism, and the extreme tension and abuse between Ms. Owens's mother and father. See Section II, pp. 8-24, supra. As Jan Vogelsang has described, "Post-conviction counsel and his investigators did investigate Ms. Owens's case prior to the hearing, gathering a number of records relating to Ms. Owens and her extended family and interviewing family members and friends that were still living. This investigation proved fruitful and revealed very relevant information about Ms. Owens's difficult childhood, her physical and sexual abuse as a child, her husband's infidelity and mistreatment of her, and Ms. Owens's very positive role as caretaker to her brother, Wilson, and mother to her two boys. However, neither counsel nor Eric Gentry used this information in a meaningful or thorough way. Moreover, counsel didn't call any lay witnesses to testify about the mitigating information gathered and instead only used the testimony of Eric Gentry and Dr. Max West." (Exhibit 7, Affidavit of Jan Vogelsang, pp. 10-11).
Importantly, Ms. Owens lost her claim of ineffective assistance of counsel in the Sixth Circuit Court of Appeals because the two-judge majority believed, based on Ms. Zager's report, that she was uncooperative with her trial lawyers. Owens, 549 F.3d at 406-407. Dr. Zager's affidavit proves that this was simply not true — Ms. Owens was cooperative and provided significant information that led Dr. Zager to believe that Ms. Owens likely suffered from battered women's syndrome. (Exhibit 10, Affidavit of Dr. Lynne Zager, pp. 2-4). Mr. Shankman's affidavit also corroborates that Ms. Owens was cooperative and had immediately disclosed to him information about her husband's abuse and expressed her great remorse. (Exhibit 1, Affidavit of Stephen B. Shankman, pp. 2-3). If either Dr. Zager or Mr. Shankman had been interviewed and their testimony presented during post-conviction proceedings, the complexion of this case would have radically changed. Because they were not, the Sixth Circuit's opinion is based on basic factual misunderstandings that drove the outcome of its ruling.
As the only expert witness, and with no lay witnesses testifying to corroborate his report, the testimony of Eric Gentry was Ms. Owens's entire case in post-conviction. Thus, the failure of Mr. Morrow to properly prepare Eric Gentry to testify was devastating. Indeed, Mr. Gentry's "inexperience took a dramatic toll on his testimony at Ms. Owens's post-conviction hearing." (Id., p. 11). The problems began with his credentials. The post-conviction trial court barely accepted Mr. Gentry, a post-graduate student and ex-social worker with a lapsed license, as an expert in anything. Owens, 13 S.W.3d at 752-753, n. 4. Ultimately, this post-graduate student was accepted as an expert in "traumatology." Id. A good lawyer would have anticipated these problems and either (1) prepared the witness on how to handle the questioning of his credentials or (2) hired someone with more credibility in the eyes of the Court. Not so here. Instead, during Mr. Gentry's testimony, he became so overwhelmed by the questioning that he exclaimed that he would never testify again because it was just too hard. Id.; (Exhibit 7, Affidavit of Jan Vogelsang, p. 1).
As a result of his lack of experience and limited Assessment (and probably his anxiety about being on the stand), Mr. Gentry's testimony failed to provide context for Ms. Owens's life, failed to explain childhood and adult responses to trauma, failed to address Ms. Owens's prior conviction for embezzlement and place it in the context of her family history, and failed to address the power of neglect or the accumulation of stressors in Ms. Owens's life. (Id., pp. 11-15). "Mr. Gentry's disjointed presentation disrupted any hope that the post-conviction trial court would make reasonable connections between the accumulation of stressors in Ms. Owens's life and the crime, not in order to excuse her, but to meet even the most minimal standards for examining Ms. Owens's development into a person who could commit this crime." (Id., p. 16).
Indeed, the Court of Criminal Appeals' (CCA) review of the post-conviction proceedings hammers this point home. The CCA characterized Mr. Gentry's "psychosocial" assessment as a "social history combined with Gentry's impressions thereof" and quoted extensively from the post-conviction trial court's opinion which repeatedly referred to Mr. Gentry's "lack of training and experience" and "lack of qualifications" when finding that his testimony lacked any credibility. Owens, 13 S.W.3d at 752-753, n. 4.
Thus, despite the fact that Ms. Owens's case is the case in which this Court established the right to expert funding in post-conviction, Ms. Owens's right to have a credible expert testify on her behalf about battered women's syndrome was completely squandered. There was no credible testimony presented about the battering that Ms. Owens endured in her marriage, about her husband's infidelity, or about the effects of battered women's syndrome on Ms. Owens. With none of this information properly or coherently presented, the post-conviction trial court (and ultimately the CCA) disbelieved that she was abused and denied her claims of error. Id., at 755.
C. The Failure to Hire a Credible, Experienced Expert and to Present Available, Compelling Mitigating Evidence About Ms. Owens's Abuse and Battered Women's Syndrome Prevented the Federal Court From Reviewing This Evidence in Ms. Owens's Case
Unfortunately, because no compelling evidence was properly or credibly presented on Ms. Owens's behalf during post-conviction proceedings, the federal courts, who are bound by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), determined that the evidence should not be considered during habeas proceedings.Owens, 549 F.3d at 408.
It is for this reason that state post-conviction proceedings, and the hearing in particular, are considered critically important — in all likelihood these proceedings are a defendant's last chance to present their case, including claims that counsel was ineffective at trial. Because the proceeding is post-direct appeal, the burden of proof is on the defendant to prove her claims. It is not enough to simply allege that your lawyer did a bad job or didn't work hard enough on your case. The defendant must also prove what evidence would have been presented had the lawyer done an effective job. The only way to meet that burden of proof is for the post-conviction lawyer to conduct the investigation that the trial lawyer should have conducted and then present the evidence in court, just as if he were presenting the sentencing case to the jury.
Most importantly, the failings of post-conviction counsel to present evidence on the defendant's behalf, or "failures to develop," are attributed to the defendant in federal court.See 28 U.S.C. § 2254. Thus, the federal courts blamed Ms. Owens, instead of post-conviction counsel, for "failing to develop" evidence relating to battered women's syndrome and the ineffectiveness of her trial counsel and refused to consider any evidence outside the post-conviction record. Owens, 549 F.3d at 408.
D. Because Breakdowns in the Judicial Process Prevented the Jury and Every Court From Hearing the True Story of Gaile Owens, This Court Should Now Consider This Compelling Evidence and Should Commute Ms. Owens's Sentence to Life
The judicial process failed Ms. Owens at every step. As a result, the jury and every court that has reviewed her case were deprived of crucial evidence that radically changes the circumstances of this case. Ms. Owens was not driven by greed, as the prosecutor argued. Ms. Owens was a battered wife who acted out of desperation, shame, and fear.
Tragically, no court has been able to review or grant relief to Ms. Owens because her original trial counsel were ineffective, her post-conviction lawyer failed in his job, and the procedural default rules in post-conviction and federal habeas have barred a complete presentation of Ms. Owens's powerful mitigating evidence. For that reason, it is now appropriate for this Court to step in and to exercise its inherent, supreme judicial power to consider this evidence that has never been fully and properly presented and to find that Ms. Owens was indeed a battered woman who was prevented from presenting compelling mitigating evidence of the battering-evidence that would have caused at least one juror to vote for a life sentence — by the ineffectiveness of her trial and post-conviction lawyers and the trial court. In so concluding, this Court should deny the State's motion to set an execution date and reduce Ms. Owens's sentence to life imprisonment. At the very least, this Court should issue a certificate of commutation.
IV. This Court Should Correct Its Earlier Erroneous Ruling That Ms. Owens's Was Not Denied Her Constitutional Rights UnderBrady v Maryland When the Prosecutor Unequivocally Disavowed the Existence of Sexually Explicit Love Letters Which Were Specifically Requested By Trial Counsel
A. The Prosecution Blatantly and Purposefully Denied The Existence Of And Withheld Sexually Explicit Letters Specifically Requested By Ms. Owens's Lawyers That Proved That Ron Owens Was Involved in an Illicit Affair
When Gaile Owens was arrested, she told law enforcement officers that she hired Sidney Porterfield to kill her husband, Ron Owens, because he had long been cruel to her and because they had a bad marriage. See Owens, 746 S.W.2d at 444. Ms. Owens later provided details to psychologist Dr. Lynne Zager about Ron Owens's cruelty and her belief that he had been repeatedly unfaithful. (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 2; Exhibit 12, Notes from Dr. Lynne Zager regarding October 22, 1985 Evaluation of Gaile Owens); see pp. 29-31, supra. Ms. Owens also told her trial lawyers, Wayne Emmons and Jim Marty, that she believed that her husband was cheating on her. Based on that, Emmons and Marty made a pre-trial discovery request for any information that Ron Owens "had numerous girl friends, extra marital sexual affairs possibl[y] involving unusual sexual proclivities and/or perversions." (Exhibit 17, Motion for Exculpatory Evidence, p. 1). The motion stated that there was "good reason to believe that the deceased husband of the defendant had numerous girlfriends" which he "flaunted . . . with such regularity and in such ways as to contribute to [Ms. Owens's] state of mind" and that "proof of such is material to issues of guilt and punishment." (Id.). The motion recited Mr. Emmons' belief that the prosecution would have collected this sort of evidence during the "search of the entire house of the deceased after the defendant was in custody" and when "[the victim's] personal possessions at his office were inventories and seized." (Id.). The motion requested "names, addresses, correspondence to and from "lovers" which would be of great benefit to the defense." (Id., p. 2) (emphasis added). Lawyer Emmons explained both in his motion and during a pre-trial hearing on the Brady motion information about Ron Owens's extra-marital affairs was necessary both to Ms. Owens's defense and to her case in mitigation. (Exhibit 18, Pre-Trial Hearing Transcript (Motion for Exculpatory Evidence), p. 69).
In response to the request of Ms. Owens's lawyers, ADAG Strother announced to the court at the pre-trial hearing: "we have shown them every single scintilla of evidence which we have seized and which we have that came from the house," and " everything we have in the way of any kind of piece of physical evidence, any piece of paper, any notebook, any-anything along those lines, letters, et cetera that we have, we have made available to them." (Id., pp. 69,74) (emphasis added). When defense counsel continued to press on the existence of sexually explicit letters, ADAG Strother reiterated to the trial court that the prosecution had complied with its obligations under Brady:
The United States Supreme Court recently found that Don Strother, the very same Shelby County ADAG, withheld exculpatory evidence and made "false and misleading" arguments during the 1982 sentencing of Tennessee death row inmate Gary Cone inCone v. Bell, 129 S.Ct. 1769 (April 28, 2009). In the Cone case, the theory of defense was that Gary Cone was a heavy drug user and as a result was less culpable because he was unable to appreciate the wrongfulness of his conduct. ADAG Strother knew this and withheld evidence, including multiple statements from multiple witnesses about Mr. Cone's heavy drug use at the time of the offense. ADAG Strother then argued vehemently to the jury that rather than being a drug user, Mr. Cone was a drug seller: "I'm not trying to be absurd, but he says he's a drug addict. I say baloney. He's a drug seller. Doesn't the proof show that?"Cone, 129 S.Ct. At 1775. In finding that ADAG Strother had withheld evidence and misled the jury about Mr. Cone, the Supreme
Court determined that "It is possible that the suppressed evidence, viewed cumulatively, may have persuaded the jury that Cone had a far more serious drug problem than the prosecution was prepared to acknowledge, and that Cone's drug use played a mitigating, though not exculpating, role in the crimes he committed." Id., at 1786.
Everything we have in the way of any kind of piece of physical evidence, any piece of paper, any notebook, any — anything along those lines, letters and et cetera that we have, we have made available to them.
(Id., p. 74) (emphasis added). Ms. Owens's lawyer replied, "Well I certainly accept that. I've got no reason not to." Id. When counsel then asked if ADAG Strother could produce an inventory of the items seized, the trial court asked, "Do you have an inventory of the office, Mr. Strother?" (id., p. 73) and ADAG Strother replied, "Not that I am aware of, Your Honor." Id.
At trial, ADAG Strother theorized that Ms. Owens hired someone to kill her husband not because of cruelty or infidelity but because she wanted his life insurance money. Strother's insurance theory was supported by no evidence whatsoever. In closing argument, ADAG Strother argued that Ms. Owens should be sentenced to death because Mr. Owens was a wholly innocent man:
If it takes the execution of ten Sidney Porterfields [sic] and Marsha Gaile Owens [sic], who would cooly and deliberately plot and design the death of a Ronald Owens . . . if it takes ten of their deaths in the electric chair to make only one potential Sidney Porterfield or Marsha Gaile Owens say, "No, I will not kill that innocent man, because I might get electricuted [sic] for it," it's worth it.
(Exhibit 19, Sentencing Transcript (Rebuttal Argument of Strother), pp. 1942-1943 (emphasis added)). ADAG Strother further argued during the guilt phase that Ms. Owens "was a desperate woman; not because of anyone else's actions, but because of her own actions she was about to lose everything that mattered to her, and there was one way and one way only to salvage that; to salvage her way of life, and that was to have her husband killed and collect the insurance money." (Exhibit 20, Trial Transcript (Rebuttal Argument of Strother), pp. 1833-1834). In turn, having been told by ADAG Strother that they had found no evidence whatsoever of Mr. Owens's infidelity in the house or in his office, Ms. Owens's attorneys completely abandoned any theory of the case relating to Mr. Owens's unfaithfulness.
In fact, ADAG Strother was not being honest with the jury at trial about Mr. Owens's innocence, or with the trial court or Ms. Owens's lawyers at the pre-trial hearing about the existence of Brady material. To the contrary, ADAG Strother knew that Mr. Owens was not an innocent man because the Bartlett Police (who conducted the investigation) had seized sexually explicit cards and letters from Ron Owens's office written by Ron Owens to Gala Scott, his lover, and from Gala Scott to Ron Owens. In the police's investigative file was a typed report documenting the discovery of these sexually explicit cards and letters and a subsequent interview with Gala Scott, who admitted to having an affair with Ron Owens. (Exhibit 9, General Assignment Report of Investigation, pp. 2-3). The letters were "juvenilistic love notes" in which, Ron Owens and his lover, Gala Scott, referred to each other by their pet names, "Fluff," "Flufflicker," and "Lollipop." (Exhibit 21, Post-Conviction Transcript (Testimony of Bartlett Detective), p. 178); (Exhibit 9, General Assignment Report of Investigation, pp. 2-3).
Despite the very specific request by Ms. Owens's lawyers for this very evidence before trial, this information was not discovered until post-conviction proceedings more than 10 years later, when pursuant to a Tennessee Public Records Act request, the police report detailing the search of Ron Owens's home and office and the discovery of the sexually explicit love letters, was finally disclosed by the state. At the post-conviction hearing, a Bartlett Detective testified that prior to trial, Mr. Owens's lover, Gala Scott, asked that the sexually explicit letters be returned to her. The detective testified that he called one of the prosecutors in the Gaile Owens case to get permission to return the sexually explicit letters to Ms. Scott: "To the best of my memory it was General Strother. It may have been a city prosecutor, George McCrary. Or it could have been Mr. Challen, I believe was involved in the — I'm sorry. I just don't remember who it was." (Exhibit 21, Post-Conviction Transcript (Testimony of Bartlett Detective), p. 179). The prosecutor responded that the sexually explicit letters were not relevant to the case and to give them back to Ms. Scott, which he did. (Id., p. 178).
B. Throughout the Appellate Process, Both the State Courts and the Federal Courts Have Repeatedly Misunderstood and Mischaracterized the Prosecution's Misleading and Withholding From Ms. Owens of Sexually Explicit Letters Proving Mr. Owens's Unfaithfulness
After discovering that the prosecution withheld evidence during preparations for state post-conviction proceedings, Ms. Owens alleged that her rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated vis-a-vis her capital sentence. Ms. Owens argued that the report and sexually explicit letters were mitigating evidence because people who commit murder because of a spouse's infidelity are generally believed to be less culpable than many others who commit murder. The post-conviction court denied relief finding first that the prosecution did not suppress the evidence because it was not in the possession of the State's attorneys (but was instead in police possession) and second that Ms. Owens was not prejudiced because she knew of her husband's affair with Gala Scott. Owens, 13 S.W.3d at 758.
Ms. Owens did not challenge her conviction for accessory before the fact to first degree murder in state post-conviction or in federal habeas proceedings.
On appeal, the CCA agreed with the post-conviction court finding that the State had no "duty" to provide the sexually explicit letters because Ms. Owens knew about or suspected that her husband was having an affair. The CCA went on to find that sexually explicit letters were not exculpatory because where Ms. Owens was alleging that the evidence was "relevant to the appellant's state of mind and the victim's treatment of the appellant,". . . "this evidence may have provided the appellant with a motive to kill her husband."Owens, 13 S.W.3d at 758-759.
The CCA never considered how Ms. Owens might have used the withheld evidence at sentencing — instead, the court focused on her defense lawyer's claim that the evidence may have somehow established a more negative motive for the killing. Their focus was misplaced where the court failed to acknowledge the state's alleged insurance motive for Ms. Owens's hiring someone to kill her husband — his life insurance money. Though it had no proof whatsoever of a life insurance policy, the state argued that Ms. Owens was a greedy, no-good, insurance proceeds-seeker, who killed an "innocent" man "in the prime of his life." (Exhibit 19, Sentencing Transcript (Rebuttal Argument of Strother), pp. 1942-1943). Had Ms. Owens been able to use the withheld, sexually explicit letters, she would have had documentary proof to support the argument that she was simply a jealous, long-suffering wife, motivated to kill her husband by the betrayal and humiliation she felt as a result of her husband's infidelity and abuse. Moreover, having been deprived of its "insurance money" motive, the prosecution would not have been able to contend that Mr. Owens was an "innocent man," and would have had to concede that Mr. Owens had been a philanderer and that Ms. Owens was not as culpable as other killers who deserve the death sentence. (Id.) In addition, with the letters in hand establishing a more mitigating motive for the killing, Ms. Owens's defense lawyers could have been emboldened to call Ms. Scott as a witness or had Ms. Owens chosen to testify, the letters would have insulated her on cross-examination, because she would have had powerfully persuasive proof that her husband was cheating on her and rubbing her nose in it.
Tennessee case law is replete with circumstances in which the unfaithfulness of a spouse — even if not providing a legal justification for the killing — has reduced the killing to something less than a death penalty case. See e.g., State v. Thornton, 730 S.W.2d 309 (Tenn. 1987); State v. Whitsett, 299 S.W.2d 2 (1957); Drye v. State, 184 S.W.2d 10 (Tenn. 1944); State v. Reagan, 2004 Tenn.Crim.App.Lexis 452; State v. McCarver, 2003 Tenn.Crim.App.Lexis 784; State v. Belcher, 2001 Tenn.Crim.App.Lexis 803. See also, Section V, infra.
Not only did the CCA fail to consider how this evidence established a much more understandable and mitigating motive, but also, the CCA ignored the fact that ADAG Strother affirmatively misled Ms. Owens's lawyers about whether or not the affair even happened. Ms. Owens's lawyers filed their discovery request for the letters based on what they had heard had been recovered. When ADAG Strother stridently denied that such evidence had ever been seized, the lawyers were left to conclude that the rumors of the affair were just that — rumors. The letters were the best evidence of the affair and could have been introduced in mitigation on their own.See Tenn. Code Ann. § 39-2-203(c) (Michie 1982) (any evidence tending to establish a mitigating factor admissible).
This Court declined to review the CCA's decision and denied Ms. Owens's application for permission to appeal, thus foregoing its opportunity to weigh in on Ms. Owens's Brady claim. Moreover, the federal courts, bound by the state court's fact-findings under the AEDPA, ruled similarly, finding reasonable the CCA's conclusion that Ms. Owens was not prejudiced because she could have testified herself or could have called Gala Scott to testify. Owens, 549 F.3d at 418.
In the Sixth Circuit, one dissenting judge observed that with respect to prejudice or materiality, "The majority's [and the Tennessee Court of Criminal Appeal's] proposed rule is nonsense," Id., and directly contrary to Brady, i.e.: "if a defendant has knowledge of any fact, or a reasonable suspicion of a fact, the defendant is not entitled to exculpatory evidence regarding that fact because she could testify regarding that fact herself." Owens, 549 F.3d. at 425 (Merritt, J., dissenting). Taken to its logical conclusion, the new rule means that even Mr. Brady himself would have lost — "Brady had knowledge that he did not kill the victim, but had no documentary evidence to support that knowledge or to support his view of the identity of the real culprit." Id. "[A]ccording to the rule announced by my colleagues, Brady should have taken the stand and testified about his knowledge or put the real culprit on the stand and examined him. This argument is directly contrary to Brady." Id.
The dissenting judge found that the "blatant prosecutorial misconduct" was material and prejudicial, recognizing not only that ADAG Strother had already acknowledged that Ms. Owens was less culpable by offering her a life sentence but also that ADAG Strother knowingly misled the jury when he argued that Ms. Owens had her husband killed simply for the insurance money:
The prosecution offered Owens life imprisonment (conditioned on the guilty plea of her confederate) because the killing under these mitigating circumstances-circumstances the jury never heard about at all — made her less culpable. The jury never heard the evidence in the hand of the prosecution that made her less culpable because the prosecution consciously and deliberately covered it up. And now my colleagues say, "fine, no problem, she should have taken the stand."
Rather than tell the jury the truth about the matter, the prosecution told the jury that she killed her husband to get "insurance money."
Id., at 426.
There is no dispute that Ron Owens was unfaithful. That fact, in and of itself, would cause at least one juror to vote for a sentence of less than death for Ms. Owens. Yet, due to the deceit of ADAG Strother, the jury never heard this evidence. Respectfully, the Court of Criminal Appeals got it wrong when they were presented this claim in post-conviction. This Court, as the Supreme Judicial Authority in this State, ought to correct this egregious error and set aside Ms. Owens's capital sentence. In the alternative, if this Court believes it does not have the authority to correct this error in the context of these proceedings, then at the very least, this Court should exercise its supreme, judicial authority and issue a certificate of commutation.
V. Gaile Owens's Death Sentence Is Extremely Disproportionate in Light of the Sentences of Other Similarly Situated, Battered Women Who Were Convicted For Their Involvement in the Murder of Their Husbands
Gaile Owens is the only woman in Tennessee who has received a death sentence for hiring someone to kill her abusive and unfaithful husband. While Ms. Owens's case did pass through this Court's statutorily mandated proportionality review at the time of her direct appeal in 1988, any proportionality review undertaken by this Court was less than cursory. Indeed, this Court's opinion, written by Justice Robert Cooper, addresses the proportionality of the death sentence in a single sentence:
[T]he sentences of death under the circumstances of this case are in no way arbitrary or disproportionate.
Owens, 746 S.W.2d at 444. This Court then cited three cases where the defendants were sentenced to death: State v. Harbison, 704 S.W.2d 312 (Tenn. 1986); State v. Austin, 618 S.W.2d 738 (Tenn. 1981), and State v. Groseclose, 615 S.W.2d 142 (Tenn. 1981), implying that these cases were used comparatively to justify Ms. Owens's sentence of death.Id. Importantly, this Court did not have all the facts when it conducted its proportionality review.
Interestingly, none of these cases present a similar factual scenario nor were the defendants similarly situated to Ms. Owens. InHarbison, the defendant broke into an elderly woman's home, robbed her, and beat her to death with a 25 lb. vase. InAustin, the defendant hired someone to kill a law enforcement officer who had implicated Austin in another crime and was going to be the principal witness testifying against him. Finally, inGroseclose, defendant Groseclose hired Ronald Rickman to kill his wife. Rickman and another co-defendant raped and stabbed Debbie Groseclose, and left her in the trunk of a car where she froze to death and wasn't found until days later — a murder described as "the most atrocious and inhuman conceivable." Groseclose, 615 S.W.2d at 145.
William Groseclose's sentence was vacated in federal court due to the ineffective assistance of counsel and that he was resentenced to life imprisonment in 1999. See Groseclose v. Bell, 130 F.3d 1161 (6th Cir. 1997).
Ms. Owens's motivation was in no way similar to these three men. Ms. Owens was motivated by her husband's "affairs, sexual humiliation and overall mistreatment of her, along with the impact his behavior had on her psychologically. Ms. Owens . . . was depressed, insecure, fearful of him, and could not cope. Ms. Owens was fearful because her husband told her that if she asked for a divorce, he would take custody of the children and keep them from her." (Exhibit 10, Affidavit of Dr. Lynne Zager, p. 2; Exhibit 12, Notes from Dr. Lynne Zager regarding October 22, 1985 Evaluation of Gaile Owens). Moreover, Ms. Owens's acceptance of responsibility in the face of her arrest and indictment was in no way similar to Harbison, Austin or Groseclose, none of whom accepted a plea offer to serve life and all of whom contested their guilt at trial and on appeal.
Ms. Owens's case is more similar to that of Mary Winkler, who was convicted of second degree murder and served 67 days in prison for killing her husband while her children were in the other room, or to a host of other Tennessee women who have been convicted of first degree murder for killing their husbands or hiring someone to kill them, including:
This list of intimate homicides (spousal killing) was compiled by the Federal Public Defender's Office using a disk generated by the Tennessee Supreme Court which contains all of the Court's Rule 12 forms, which trial judges in Tennessee are required to complete in every case where a defendant is convicted of first degree murder. See Tennessee Supreme Court Rule 12(1).
• Barbara Tipton, who was sentenced to life in 1982, for hiring her younger lover to kill her husband;
• Joan Hall, who enlisted her own minor son to kill her husband and received a life sentence in 1996;
• Brenda Holleman, who hired two men to kill her husband and was sentenced to life without parole in 2002;
• Carolyn Strickland, who planned and executed the murder of her husband with her step-child and was sentenced to life in 1992;
• Dana Soloman, who solicited her boyfriend to kill her husband and received a life sentence in 1999;
• Deborah Furlough, who killed her husband and was sentenced to life in 1988;
• Evelyn Mosher, who hired Bobby Wilcoxson (whose death sentence was vacated) to kill her husband and received a life sentence in 1986;
• Elizabeth Smith, who shot her husband in the chest and received a life sentence in 1992;
• Erika East, who shot her husband and received a life sentence in 2002;
• Alicia Lovera, who with her lover, beat her husband to death, and received a life sentence in 1996;
• Janis Watson, who conspired to kill her husband with a co-defendant and was sentenced to life in 2004;
• Kimberly Ann Ross, who hired someone to kill her husband and was sentenced to life in 2007;
• Leah Joy Ward, who shot and killed her husband and then mutilated his body and was sentenced to life in 2005.
• Lee Etta Fugate, who shot her husband in the head while he was lying in bed and received a life sentence in 1987.
• Mindy Sue Dodd, who convinced her live-in nephew to kill her husband and received a life sentence in 2001.
• Sarah Kathryn Richardson, who conspired with her brother and another co-defendant to kill her husband and was sentenced to life in 1991.
• Teresa M. King, who conspired with her boyfriend to kill her husband for the life insurance money and was sentenced to life imprisonment in 1991.
• Twanda Ward, who killed her husband by setting him on fire and was sentenced to life in 1989.
• Vikki Spellman, who set her trailer on fire while her husband was inside and was sentenced to life in 1988.
• Y'Vette Vaden, who shot her husband four times and was sentenced to life in 1996.
Rule 12 forms indicate that of these nineteen women, eleven hired or conspired with another to have their husbands killed, just as Ms. Owens did. Rule 12 forms report that at least six of these women were motivated to kill their husbands because of his mistreatment or abuse of them, just like Ms. Owens, who from the time of her arrest indicated that it was her husband's cruelty and their bad marriage that motivated her to have him killed. And, based on the Rule 12 reports, at least five of these women were permitted to plead guilty to avoid a death sentence.
This Court has made clear that Tennessee's statutory comparative proportionality review "presumes that the death penalty is not disproportionate to the crime in the traditional sense, . . . [but] purports to inquire instead whether the death penalty in nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997), and requires an examination of the facts of the crimes, the characteristics of the defendants, and the aggravating and mitigating factors involved.Id. at 664. However, the Court had held that it will only consider those cases where "the State seeks that death penalty, a capital sentencing hearing is held, and the sentencing jury determines whether the sentences should be life imprisonment, life imprisonment without the possibility of parole, or death, regardless of the sentence actually imposed." State v. Godsey, 60 S.W.3d 759, 783 (Tenn. 2001). This Court specifically excludes from proportionality review cases where the defendant was permitted to plead guilty to avoid a death sentence or where the death penalty was not sought.
Comparing this narrow pool of cases, this Court has stated that it "considers many variables" including the motivation for the killing; the defendant's prior criminal record; the defendant's age, race and gender; the defendant's mental, emotional or physical condition, the defendant's involvement or role in the murder; the defendant's remorse; and, the defendant's capacity for rehabilitation.Godsey, 60 S.W.3d at 786, citing Bland, 958 S.W.2d at 667.
However, it is clear that none of these factors were considered when this Court undertook its proportionality review for Ms. Owens, a female, who was motivated to kill her husband because of emotional, physical and sexual abuse; who had a very limited criminal history; who was under significant emotional and mental stress; who was not involved in the murder itself, but in hiring her co-defendant; who was immediately remorseful and accepted a sentence of life imprisonment; and whose capacity for rehabilitation is unmatched among death row inmates in Tennessee.
It is important to note that because Ms. Owens was the only female death row inmate in Tennessee for over a decade, Ms. Owens was punished more harshly than the male death row inmates. During her twenty-four years of incarceration, Ms. Owens, who has been described repeatedly as a model inmate, spent over 14 years living in segregation (from 1986 to 1992 and from 2002 to the present) despite her A-Level status and clean disciplinary record because there were no other female death row inmates with whom she could live, share meals, or to spend recreation, lobby or craft time (Christa Pike is the only other woman on death row in Tennessee and lives in segregation because she is a C-Level inmate). While during those 14 years, Ms. Owens was permitted to have a job despite being segregated from other inmates, her job only provided interaction with corrections employees, not with other inmates. For the ten years (from 1992 to 2002) that Ms. Owens was permitted to live in the general population of the prison, she thrived and served — holding every elected office that an inmate could, volunteering to lead and participate in educational, religious, and charitable activities, living in the Honor Pod, and working as an employee of Tri-Cor. Since 2005, Ms. Owens has been housed in the Mental Health pod of Unit III at the Tennessee Prison for Women (though she is not mentally ill) and is permitted to interact only with the women living in that pod, who are housed there because of mental illness. Ms. Owens spends her time as a Clerk for the Unit II and III Manager. Ms. Owens is known as a productive and reliable worker and is highly respected on the compound by administration, staff, other inmates, and volunteers. It is undisputed that Ms. Owens's capacity for rehabilitation, as demonstrated by her model behavior and productiveness during the last twenty-four years, is unmatched among all other inmates on Tennessee's death row. Based on Ms. Owens's clean disciplinary history and reputation as a model for other women incarcerated at Tennessee Prison for Women, this Court should exercise its inherent authority and reduce Ms. Owens's death sentence to life or issue a certificate of commutation.
As the only battered woman who has received a death sentence in Tennessee and the only inmate in Tennessee who has received a death sentence after accepting a District Attorney's plea offer in exchange for a life sentence, Ms. Owens's death sentence is certainly disproportionate.
Based on Ms. Owens's unique position, and given that Ms. Owens's death sentence is grossly disproportionate in light of other death-sentenced inmates and other women convicted of the first-degree murder of their husbands, this Court should exercise its inherent, supreme judicial power and should deny the State's motion to set an execution date and reduce Ms. Owens's sentence to life imprisonment. At the very least, this Court should issue a certificate of commutation.
VI. Conclusion
This is an historic case. This is not a case about the morality or legality of the death penalty. The death penalty is the law of this state. It is also the law of this state that the death penalty is reserved for the worst of the worst. Objectively, Gaile Owens is not the worst of the worst. Her death sentence is grossly disproportionate to others in similar circumstances.
The citizenry in whose name Gaile Owens's execution will be carried out have a right to know that the person who is executed was provided all of the protections that this great State and Country guarantee to each of her citizens. Gaile Owens was denied those rights.
Simply and tragically, the system failed Gaile Owens. She should never have gone to trial her acceptance of the ADAG's plea offer in exchange for a life sentence should have been honored. It wasn't.
Once she went to trial, her lawyers should have spent more than two hours preparing for her penalty phase trial. They didn't.
At the penalty phase trial, the jurors should have been told the truth — that Gaile Owens was physically, emotionally and sexually brutalized by her philandering husband. They weren't.
When the trial lawyers failed in their jobs, the post-conviction lawyers should have stepped up and brought forth all of the relevant evidence establishing these facts. They didn't.
Finally, the AEDPA prevented the federal courts from considering all of the facts.
Thus, only one remedy remains for all of the missteps and wrongs that Ms. Owens encountered in her journey through the justice system. If Gaile Owens is to be executed by the State of Tennessee, it will be under the authority of this Court's order. This Court has never had the opportunity to review all of the facts in this case. This Court occupies a singular role in the Tennessee judicial system. This Court has the power to act as a failsafe, the power to step in and modify Ms. Owens's death sentence to life, and the power to correct the overwhelming injustices in this unprecedented case.
WHEREFORE, Ms. Owens respectfully prays to this Honorable Court to deny the State's Motion to Set Execution Date and modify her sentence to life in prison. In the alternative, this Court should issue a Certificate of Commutation.
Respectfully Submitted,
_________________________________ Gretchen L. Swift Assistant Federal Public Defender
_________________________________ Kelley J. Henry Supervisory Assistant Federal Public Defender for the Capital Habeas Unit
Office of the Federal Public Defender
810 Broadway, Suite 200 Nashville, Tennessee 37203 615-736-5047
VERIFICATION
I verify that the statements contained in this motion are true and correct to the best of my knowledge.
Subscribed and sworn before me this 5 th day of, February, 2010.
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing motion was served by email upon Gordon Smith, Assistant Solicitor General, 425 Fifth Avenue North, Nashville, Tennessee 37243 this the 5th day of February, 2010.
EXHIBIT LIST
Exhibit 1, Affidavit of Stephen B. Shankman
Exhibit 2, January 3, 1986 Letter from Strother to Jim Marty and Brett Stein
Exhibit 3, January 3, 1986 Letter from ADAG Strother to Jim Marty and Brett Stein Bearing Ms. Owens's Signature Of Acceptance
Exhibit 4, Trial Transcript (In Chambers Conference)
Exhibit 5, Lenore Walker: "Battered Women's Syndrome: Key Elements of a Diagnosis and Treatment Plan," Psychiatric Times, Vol. 26, No. 7 (July 7, 2009)
Exhibit 6, Pre-Trial Hearing Transcript (Motion for Battered Women's Expert)
Exhibit 7, Affidavit of Jan Vogelsang
Exhibit 8, Biopsychosocial Assessment of Jan Vogelsang
Exhibit 9, General Assignment Report of Investigation
Exhibit 10, Affidavit of Dr. Lynne Zager
Exhibit 11, October 3, 1985 Order Directing Evaluation of Defendant
Exhibit 12, Notes from Dr. Lynne Zager regarding October 22, 1985 Evaluation of Gaile Owens
Exhibit 13, November 15, 1985 Letter from Dr. Lynne Zager
Exhibit 14, Timesheets of Jim Marty and Brett Stein
Exhibit 15, Trial Transcript (Testimony of Dr. Max West)
Exhibit 16, Affidavit of Dr. Lenore Walker
Exhibit 17, Motion for Exculpatory Evidence
Exhibit 18, Pre-Trial Hearing Transcript (Motion for Exculpatory Evidence)
Exhibit 19, Sentencing Transcript (Rebuttal Argument of Strother)
Exhibit 20, Trial Transcript (Rebuttal Argument of Strother)
Exhibit 21, Post-Conviction Transcript (Testimony of Bartlett Detective)
AFFIDAVIT OF STEPHEN B. SHANKMAN
Stephen B. Shankman, being of lawful age, states the following:
1. I am an adult resident citizen of Memphis, Shelby County, Tennessee.
2. I am currently employed, as a result of my appointment, as the Federal Public Defender for the Western District of Tennessee.
3. Prior to my appointment as the Federal Public Defender, 1 worked as a criminal defense attorney in private practice.
4. During my private practice, in February of 1985, I was contacted by the Bartlett City Judge, Freeman Marr. and asked to represent Marcia Gaile Owens upon her arrest for the purposes of her arraignment and preliminary hearing.
5. I met with Ms. Owens the following day and spoke with her for several hours before her arraignment. Ms. Owens was extraordinarily remorseful for hiring someone to kill her husband. But her most immediate and profound concern was the well-being of her children. Ms. Owens was clear-she wanted to plead guilty and avoid a trial because she didn't want to put her-children and the rest of her family through any more pain.
6. Because of Ms. Owens's remorse and profound concern for her children, I spoke with the jailer at the Bartlett Jail and requested that Ms. Owens not be moved to the Shelby County Jail until after the news media left. I wanted to make sure that the news-media did not get any video footage of Ms. Owens so that her children did not have to see that footage on television for the rest of their lives. As a result of my request, Ms. Owens was moved to Shelby County very early in the morning several days after her preliminary hearing.
7. Ms. Owens was also immediately forthcoming with me regarding her motivations for hiring someone to kill her husband — her husband was abusive and cheated on her regularly. Based on the information she provided, I immediately recognized that the defense in this case should be that Ms. Owens suffered from battered women's syndrome. Based on that, I believe this case should never have been a. death penalty case.
S. I was unable to work out with Ms. Owens a payment for my services as her retained lawyer. As a result, I declined appointment in her case and the Shelby County Criminal Court appointed two lawyers to represent her.
9. Several years later, in 1991, I was approached by Ron Gilman (who is now a
Judge on the Sixth Circuit Court of Appeals), who asked that I serve as co-counsel with him for Ms. Owens's post-conviction proceedings. 1 agreed to represent Ms. Owens again because I was so disappointed that Ms. Owens had not been allowed to plead guilty, that her attorneys had not raised a battered women's defense and that Ms. Owens had received the death penalty I believed that it was imperative that a battered women's expert be hired to demonstrate that the abuse Ms. Owens had endured at the hands of her husband was highly mitigating and that this case was not a death penalty case.
10. Thus, the focus in Ms. Owens's post-conviction case was on winning the right to expert funds from the court so that we could hire an expert to investigate, evaluate, and present the evidence relating to battered women's syndrome. We had lined up Dr. Lenore Walker, a clinical and forensic pyschologist, who at the time was the pre-eminent expert in the United States on battered women's syndrome. See Exhibit 1, Affidavit of Counsel, Stephen B. Shankman and Ronald L. Gilman. We litigated the right to expert funding for capital petitioners in post-conviction all the way to the Tennessee Supreme Court. On October 23, 1995, the Tennessee Supreme Court held that a capital petitioner did have the right to funding from the court in order to hire experts. See Owens v. State. 908 S.W.2d 923 (1995).
11. Shortly thereafter, Ron Gilman was named as a possible appointee for the Sixth Circuit Court of Appeals. As a result, Judge Gilman and I withdrew and did not proceed with the investigation or hiring Dr. Walker as we had planned. New counsel were appointed to represent Ms. Owens for the purposes of investigating and presenting her claims in post-conviction and for her post-conviction hearing-Neither Judge Oilman nor I played any role in any of the proceedings after we withdrew.
12. I still believe that My, Owens's case should never have been a death penalty case. She should have been permitted to plead guilty, just as she had wanted to from the day that I met her.
I declare, under penalty of perjury under the laws of the United Stales of America that the foregoing is true and correct.
Further affiant sayeth not.
_____________________ Stephen B. Shankman
Dated this 6 th day of July, 2009.
Sworn to and subscribed before me on this the 6 day of July, 2009.
ATTACHMENT 1 IN THE CRIMINAL COURT OF SHELBY COUNTY, TENNESSEE AT MEMPHIS
GAILE K. OWENS, Petitioner, v. STATE OF TENNESSEE, Respondent.
No. P-8806.
Filed 9/23/91
EX PARTE MOTION OF PETITIONER TO HAINTAIH DOCUMENTS WHO PLEADINGS UNDER SEAL AND TO HAINTAIN RELAXED PROCEEDINGS CONFIDENTIAL
Pursuant to T.C.A. $4C-14-207(b), Rule 13(2) (a) (10) of the Rules of the Supreme Court of Tennessee, and the due process and equal protection guarantees of the United States and Tennessee Constitutions, petitioner, Gaile K. Owens, moves this Court, ex parte, to hold this Motion, the Memorandum in support hereof, and the documents and pleadings listed below in confidence and under seal and to maintain any future proceedings or references to the contents of the pleadings and documents described above or listed hereafter in confidence and under seal. Petitioner submits that to allow Respondent access to the thought processes, consultants, or matters contained in this Motion or the other documents described herein would violate the express provisions of T.C.A. 540-14-207(b) and Supreme Court Rule 13(2)(B)(10); undermine the adversary process and the work-product doctrine, in violation of the due process guarantees of the United States and Tennessee Constitutions; and result in the unequal treatment of indigent petitioners, in violation of the equal protection guarantees of the United States and Tennessee Constitutions.
Specifically, in addition to this Motion and the supporting Memorandum in Support of EX Parte Motion to Maintain Certain Documents and Pleadings Under Seal and to Maintain Related Proceedings Confidential, Petitioner requests that the following pleadings and documents be maintained under seal and in confidence:
1. Ex Parte Motion, Under Seal, for Authorization of and Payment for Support Services;
2. September 23, 1991 Affidavit of Counsel (attached to Item 1 listed above);
3. October 29, 1990 Affidavit of Lenore E. Walker (attached to item 1 listed above) {original filed in U.S. District Court for the Western District of Tennessee in Cause Bo. 88-2467];
4. October 22, 1390 Affidavit of Scharlette Holdman {attached to item 1 listed above) [original filed in U.S. District Court Cor the Western District of Tennessee in Cause Mo. 88-2467];
5. September 13, 1991 Affidavit of Ronald Lax (attached to item 1 listed above); and
6. Memorandum in Support of Ex Parte Motion, Under Seal. for Authorization of and Payment for Support Services.
Respectfully submitted.
By:______________________________
Ronald L. Gilman, #8395 50 North Front Street., Suite 1400 Memphis, Tennessee 30203 (901) 576-8200
By:____________________
Stephen B. Shankman 200 Jefferson Avenue, #800 Memphis, Tennessee 38103 (901) 575-8700
CERTIFICATE REGARDING SERVICE
I hereby certify that, pursuant to the statutory and constitutional authority cited above, a copy of the foregoing Motion of Petitioner to Maintain Documents and Pleadings Under Seal and to Maintain Related Proceedings Confidential has not been forwarded to the Honorable John W. Pierotti, District Attorney General for the Thirtieth Judicial District, 201 Poplar Avenue, Suite 301, Memphis, Tennessee 38103.
This 23rd of September, 1991.
______________________ Ronald L. Gilman
January 3, 1986
Mr. Jim Marty Attorney at Law
212 Adams Ave Memphis, Tn. 38103
Mr. Brett Stein Attorney at Law
236 Adams Ave Memphis, Tn. 38103
RE: Marsha Gail Owens File #K445
Dear Sirs:
This is to verify our conversation of yesterday afternoon in which I notified you after conferring with General Stanton and the family of the deceased that the State would recommend to the Court upon a plea of guilty as charged to either count of the Indictment that a Life sentence be imposed upon your client, Marsha Gail Owens. This offer is contingent upon its acceptance by January 3, 1986 and the acceptance of a similar offer by Ms. Owens co-defendant, Sidney Porterfield, as the case is not severable.
Sincerely,
Don D. Strother Assistent District Attorney General
January 3, 1986.
Mr. Jim Marty Attorney at Law
212 Adams Ave. Memphis, Tn. 38103
Mr. Brett Stein Attorney at Law
236 Adams Ave. Memphis, Tn. 38103
RE: Marsha Gail Owens file #K445
Dear Sirs:
This is to verify our conversation of yesterday afternoon in which I notified you after conferring with General Stanton and the family of the deceased that the State would recommend to the Court upon a plea of guilty as charged to either count of the Indictment that a Life sentence be imposed upon your client, Marsha Gail Owens. This offer is contingent upon its acceptance by January 3, 1986 and the acceptance of a similar offer by Ms. Owens co-defendant, Sidney Porterfield, as the case is not severable.
BY THE COURT: Let the record reflect that the Court has adjourned to chambers; present are the two defendants, Mrs. Owens and Mr. Porterfield, and their respective attorneys; Mr. Stein and Mr. Marty for Mrs. Owens; and. Mr. Bailey and Mr. Jones for Mr. Porterfield; and the Attorney Generals, Mr. Challen and Don Strother.
Mr. Marty.
BY MR. MARTY: Your Honor, on behalf of Mrs. Owens, Mr. Stein and I have filed a motion this morning, which required an in-chambers conference on Friday, January 3rd of this year, 1985. The State of Tennessee's duly appointed official, Mr. Strother, offered Mr. Porterfield and Mrs. Owens, the chance for a guilty plea as to either one of. the counts of the indictment; Life Imprisonment.
We took this offer to our client, Mrs. Owens, and a lengthily discussion; not only Friday, but lengthly discussions prior to that day; concerning the evidence. in this case; the evidence that the State will produce; the evidence we can produce; the tape recordings of the confession; the whole gambit of the case; and based on what we explained to Mrs. Owens, and based on her appearance in Court and what she knows of this case as of Friday afternoon, it was her desire to accept the State's offer of Life Imprisonment; Assessory Before the Fact to Murder.
We talked with Miss Owens; showed Miss Owens the offer; which she signed at the bottom and dated; and we immediately took this to Mr. Strother. Some time later that evening I received a call from Mr. Jones indicating Mr. Porterfield declined the Life offer. This morning, January 6, 1986, Mr. Stein and I appeared and explained to Miss Owens, again, the situation surrounding Mr. Porterfield's rejection of the Life Imprisonment offer, and then we had another discussion with Mr. Strother. Mr. Strother with Mr. Stein and myself went to see General Stanton for the sole purpose of seeing if Miss Owend could, in fact, plead guilty, take the Life offer, and be severed. from the co-defendant, Porterfield. The General basically said the same thing as Mr. Strother; that the State would not sever Miss Owens.
Due to the fact this case carries the ultimate death by electricution, we feel and urge the Court that we be allowed. . . . on Miss Owens behalf . . . and on her behalf she is going to ask the Court in a minute on the record to be allowed to plead guilty to Accessory Before the Fact and accept a Life sentence.
We have talked to Mr. Strother in great depth, and Mr. Strother has talked to the family of Miss Owens; and it is my understanding they want this matter to be done with and over with; and we can certainly understand and appreciate that. Miss Owens wants this matter done with and over with. We simply urge the Court, on behalf of Miss Owens, that if she is forced to go to trial that she possibly; and she understands this; may receive a sentence of Death, and she is urging the Court, through Mr. Stein and myself, to ask the Court to accept her plea" of guilty as charged in the indictment, and to sever her from the defendant, Porterfield.
I state this for the record. This will, in no way, prejudice the State's case one bit; as a matter of fact, it may help. They can call Miss Owens as a witness, which I would imagine they would do. Miss Owens, on the other hand, can be greatly prejudiced by failure to accept her guilty plea in that she could receive . . . very conscionably receive the Death Penalty in. this case. We ask the Court; and urge the Court; and I'm going to ask Miss Owens to make remarks for the record in a moment; to allow her to plead guilty and take the recommendation; the Life sentence.
Obviously, as counsel for Miss Owens, we have no control over Mr. Porterfield or his counsel. We simply state to the Court this is a high-publicity case. It's a very . . . a case of wide-spread criticism throughout the community and has been since it developed. We feel that in Miss Owen's best interest, and in the Court's best interest, and the citizens of the State of Tennessee's best interest, and the family of the deceased's best interest, that Miss Owens be allowed to plead guilty and take Life Imprisonment.
I would point out that Miss Owens has two small sons. Their ideas and opinions were taken into account by Mr. Strother in making this offer. They were talked to, the father was talked to the family was talked to, and we simply state we don't want to put those children through additional aggravation, remorse, or pain; and we think it is in everyone's best interest that Miss Owens be allowed to plead guilty and accept the Life offer.
BY THE COURT: State.
BY MR. STK0THEH: Your Honor, as indicated by Mr. Marty, I did make Mr. Marty an offer. I made the offer in writing to Mr. Marty . . . "This is to verify conversations of yesterday afternoon in which I notified you, after conferring with General Stanton and the family of the deceased," . . . which is the family of the deceased . . . I talked to the father of the victim. I did not communicate with the wife, who is also the defendant, nor the children concerning whether or not they wanted this plea accepted. I conferred with the family of the deceased . . . the family of Ronald Owens.
A similar offer was made to Mr. Porterfield, and the offer was contingent upon each defendant's acceptance, because the case is not severable; and it is that contingency situation we find ourselves in, and we do not feel that the case is one in which a severance is granted. And we do feel it would be harmful to proceed against Mr. Porterfield alone, and for that reason not all the conditions of the guilty plea have been met, and it is not a binding agreement between the parties.
BY THE COURT Well, does counsel for Mr. Porterfield have anything to say?
BY MR. JONES: No.
BY THE COURT: Mr. Bailey.
BY MR. BAILEY: No.
BY MR, JONES: We would state we have no objections to a severance, and we have requested a severance and riled a motion . . .
BY THE COURT: Well, this situation here almost places the Court in an untenable position, because as I understand the law, a guilty plea is arrived at between the parties; that is the defendant and the State representative . . . representative of the State . . . and the conditions of that guilty plea are binding upon the Court if the Court accepts it. What we are at the point of now is that you are getting the Court involved in plea bargaining, and I have absolutely no authority . . . no authority or jurisdiction to engage in plea bargaining. It appears to me what is happening here is that you want the Court to say that, "Yes, I'll accept a Life sentence on behalf of Miss Owens, and I'll require the State to sever." Well, that wasn't the pica bargain agreement . . . that's not the agreement. The agreement is a condition based on acceptance of Mr. Porterfield of the same or similar conditions. The Court finds itself in a position of . . . this motion would put this Court in the position of engaging itself in the terms of a plea bargain agreement, and I don't think the Court has any jurisdiction or authority to become involved.
BY MR. MARTY: Your Honor, we would cite the case ofArrington, state of Tennessee 319, wherein the Court . . .Arrington. . .wherein the Court of Appeals indicated in absence of any showing that the defendant had been prejudiced by the Court overruling his motion is without merit. We point out to the Court that in the Arrington case . . . the Arrington case was not a Capital case . . . this is a Capital case . . .
BY THE COURT: I understand that, Mr. Marty.
BY MR. MARTY: And we feel that . . . I think we are duty bound, ethically and professionally . . . we are duty bound, on behalf of Miss Owens, where the ultimate punishment in this case is death by electricution, that we must urge the Court to consider that as a prejudice against the defendant, Owens, and ask the Court to consider allowing her to plead guilty and sever — her from the defendant, Porterfield.
I might make this comment to the Court: It may require that at the time of the defendant's proof that Miss Owens get on the witness stand and pleads guilty in front of the jury. That will absolutely, in my opinion prejudice the jury against Mr. Porterfield. We are simply trying to avoid those problems. We think it is in the best interest of Miss Owens, the State, and everyone I have previously said, to allow us to do what the State has recommended.
BY THE COURT: The State hasn't recommended it.
BY MR. MARTY: I realize they are asking this be contingent upon Mr. Porterfield's accepting it. We don't think Your Honor, in a Capital Case, . . . I'm not talking about armed robbery or shoplifting or some other offense. We don't think that's a viable reason to withhold an offer of settlement to one defendant simply because another doesn't understand . . . may not understand . . . doesn't have whatever facilities to understand or accept it. I'm just stating to the Court this will not prejudice the State's case. They can proceed right along without any hitch.
BY MR. STEIN: Before Your Honor rules, I would quote from theArrington case found on page 322 . . . listen to the language, I think Your Honor can consider it. I think it's a lot broader than Your Honor's first impression about the plea bargaining situation; "Appellant Arrington's motion to sever based on his desire to accept the State's offer and plead guilty, absent any evidence showing chat he was prejudiced by the Court overruling his motion, is without merit."
So, I think Your Honor can go a step further. In fact, Your Honor has correctly stated the law, because there is a case I showed Mr. Strother . . . the case of Seaton vs. State, 472 S.W.2d, 905. It certainly would support they don't have to sever under this, but it was a 1981 case, and Arrington comes along with identical facts concerning a plea of guilty, but doesn't have the absolute rule as stated in Seaton merely because of the plea bargain situation, as Your Honor stated in response to Mr. Marty's motion. But Arrington comes along and says, "absent any evidence showing that he was prejudiced by the Court overruling his motion, is without merit." When Arrington comes along in 1977, it gives the Court criteria which is the prejudice situation, and I submit this, respectfully, that under theArrington case. Your Honor certainly can go a step further and determine from what's before Your Honor whether or not there will be any prejudice if Your Honor denies Miss Owens' motion for severance. How do you determine prejudice? In the later cases they don't discuss what is meant by prejudice. The latest authority is Arringtqn, which is in 1977. March 28, 1977, which gives Your Honor another criteria about prejudice. So, what Arrington has done . . . it has not given Your Honor any specific guidelines as to what is meant by prejudice. It boils down to using one's own common sense. If Your Honor accepts this prejudice criteria as set out inArrington, I think Your Honor has to ask Mr. Strother and Defense counsel, Mr. Marty and myself, what kind of prejudice will Miss Owens suffer, and then if Your Honor follows . . .
BY THE COURT; I'll ask you now what kind of prejudice . . .
BY MR. MARTY: I'll answer.
BY THE COURT: I'm talking, I think, to Mr. Stein. The penalty for the crime charged is what.
BY MR. STEIN: Let me put it this way; the penalty for the crime charged is the same; Life or Death by electricution, but as Your Honor recalls, Mr. Marty filed a motion to sever, because, basically, an antagonistic defense. The point is, when the proof comes out, because I think the State's theory is that Porterfield was the principal or actual perpetrator of the murder or homicide . . . I think, because the jury may look at it because he was the actual perpetrator, that Porterfield may spill over in so far as Miss Owens is concerned. What the proof may or may not be, Your Honor, has to go into great detail as to what does prejudice mean, and I would submit that the mere fact they have the same sentence, I think you have to go further. You have to go into the facts of the case, keeping in mind we filed a motion to sever Miss Owens from Mr. Porterfield. It may be impossible to determine who is prejudiced until you hear the proof, but the point being, Your Honor can certainly consider our argument as officers of the Court; and, as Your Honor knows, under the severance concept Your Honor can grant a severance if you feel under Arrington Miss Owens would be prejudiced.
I don't know what the proof is going to be. Maybe Mr. Porterfield will take the stand; maybe his record will home out; maybe the hideous part of the homicide would pour over to Miss Owens; but that's the point of having our . . . or motion for severance is an on-going situation, and I would submit, respectfully, and I say this very respectfully, just saying, because of the plea bargain situation, as expoused by Seaton, we don't have to consider the Arrington criteria. I think Your Honor has to respect theArrington criteria, and I'm going to yield to Mr. Marty to further supplement and compliment my argument as to the prejudice that Your Honor can consider as to Arrington.
There is only one other case I have seen in ray research . . . Wheaton (phonetically). I want to say 480 . . . it's a U.S. Supreme Court decision, and I'll get the exact citation to the Court. . . . Supreme Court of Massachusetts . . . it went up to the Supreme Court of the United States on exactly the same issue where a co-defendant wanted to be severed and plead guilty, but the other would not. But in that case it went up on the issue that there was question about preemptory challenges wouldn't be fair and was determined to be, basically, a matter of discretion of the trial Court. Our Supreme Court of the United States had an occasion to decide this issue, albeit in 1824 and 1825, and used the language in their decision . . . "discretion of the trial Court."
BY THE COURT: Well, you still haven't answered my question, Mr. Stein: What authority does the Court have to engage in plea bargaining?
BY MR. STEIN: Your Honor, you asked me, as an officer of the Court . . .I furnished Seaton vs. State, 472 S.W.2d, Your Honor . . .
BY THE COURT: Is that what we have?
BY MR. STEIN: That is correct, and I'm saying, very respectfully, in view of the hearing and the facts, I would respectfully urge the Court to consider this. Seaton should be read into the record; it states: "The trial Court did not agree with counsel for the defendant. Neither do we. While plea bargaining is a valuable tool in expediting the administration of criminal justice and should be encouraged by the Courts in proper instances, United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, neither the State nor the defendant should be allowed to dictate terms. If an understanding is reached as to a plea and punishment, it should be submitted to the Court for approval, and, of course, in some instances to a jury. But in no instance should the Court enter into the negotiations on one side or the other. It would not have been proper for the Court to have granted a severance in this instance purely as a tactic to attempt to force the State to agree on settlement of the defendant's case on his terms."
BY THE COURT: I understand that . . .
BY MR. STEIN; And I don't want to belabor the point, but that would be fine in 1971 if this was the only authority, but lo and behold, along comes Arrinqton a 1977 case, and it doesn't follow the hard and narrow rule in seaton I just read.
BY THE COURT: Well, now; Arrinqton deals with an entirely different subject all together and not a plea bargaining situation at all. Arrington is refusing to grant a severance.
BY MR. STEIN: But both involve the same issue where the Court would not grant the severance, because a co-defendant would not accept the plea . . . exactly what we have here.
BY THE COURT: Does Arrington under any circumstances say the Court has jurisdiction to engage itself in plea bargaining?
BY MR. STEIN: Right. Well, of course, as I have read, the language I read to the Court before, and the only language in that, respectfully, it gives Your Honor to look into the prejudice issue. It says, and I'm not going to repeat what I have just read, but it goes on to say further that the matter of severance was within the sound discretion of the Court; so it gives you two outs.Arrington is much broader in scope than seaton.Arrington was in 1977, obviously, and Your Honor can use common sense, and this particular issue bothered Judge Dwyer, or why would it be put in there, "absent prejudice"?
BY THE COURT: In regard to this precise issue that the co-defendant did not desire to accept the guilty plea in Arrington, and the lawyer filed a motion to sever and allow him to accept the guilty plea; they don't even cite Seaton. Arrington, in 1977 . . .
BY MR. STEIN: The only point I'm saying is Arrington has expanded on Seaton and is not a hard and fast rule. Seaton seems to say: No. 1, consider the prejudice; and No. 2, once you consider the prejudice, Your Honor has to use your discretion, and I would respectfully submit we haven't been given guidelines as to what is meant by the prejudice issue.
Judge Dwyer, in Hoskins vs. State 489 S.W.2d, 1972, he doesn't even cite Seaton for his authority, butSeaton and Arrinqton are the exact precise issue, basically, the conditional offer by the State. And if I just citedSeaton, Your Honor can't get into the prejudice issue; but lo and behold, I would respectfully submit, Arrinqton gives Your Honor another criteria where the Court can consider the prejudice criteria and use your discretion.
I would ask the Court to allow Mr. Marty to address Your Honor on how he feels Miss Owens would be prejudiced, and after you hear the full argument, Your Honor would have to use your discretion. And I respectfully submit, if Your Honor does consider the prejudice issue and follow the language of Arrinqton . . .
BY THE COURT: Arrinqton doesn't say the trial Judge has any jurisdiction or authority to involve itself in a plea bargaining agreement in any way, shape, form, or fashion. It doesn't say that. It's on a question of severance. It doesn't say anything about a plea bargain. The Court has no authority even underArrinqton to engage itself in plea bargaining on one side or another. And if the plea bargaining, as set out in this paper writing, is conditional upon Mr. Porterfield accepting the same or a similar agreement, this Court does not have the authority and will not exercise its authority under any circumstances to engage itself in plea bargaining. The motion is overruled.
BY MR. STEIN: We respectfully note our objection. BY MR. MARTY: I would like for the record, since we are here, I stated my understanding prior to coming into chambers that it was Mr. Porterfield's desire not to accept the State's offer.
BY THE COURT: He has the perfect right to do it. BY MR. MARTY: In any . . . correct . . . on that assumption, I want to ask for the record . . . I have no idea . . . I want his lawyers to state for the record . . .
BY MR. BAILEY: Mr. Porterfield enters a plea of not guilty.
BY MR. JONES: We would state, after hearing the statements of Mr. Marty, if the severance is denied, it's a possibility Miss Owens would take the stand and plead guilty before the jury. This is something we did not know when we argued the motion for severance on behalf of Mr. Porterfield, and this will have definite prejudicial effects on Mr. Porterfield's trial to Mr. Porterfield, and we would ask we be allowed to amend our motion for severance and add as grounds why Mr. Porterfield would be denied a fair trial if we go to trial with Miss Owens.
BY MR. STROTHER: I think we have an identical situation the Court faced recently in the HOPLER (phonetically) case in which Mr. Hopler's co-defendant did plead guilty . . . admitted to guilt during the facts, and was reviewed by appellate courts and no error found.
There was a similar motion for severance which the Court denied, and I think we are on safe ground for denial here.
BY THE COURT: Mr. Jones, you may file a written supplemental motion to that effect, and the Court overrules the motion at this time.
BY MR. STEIN: In view of Your Honor's ruling, Mr. Marty stated Miss Owens was going to testify. Basically, by her acceptance of the State's proposed guilty plea, which was outlined in Mr. Marty's written motion, in view of Your Honor's ruling, we will not put Miss Owens on the witness stand; is that right, Mr. Marty?
BY THE COURT: The Court has nothing to do with that.
BY MR. MARTY: Miss Owens is present at this hearing, and was furnished a copy of the motion we filed this morning, which she has read, and it's her . . . she expressed to me that is still what she wishes to do.
BY THE COURT: I understand and appreciate that, Mr. Marty, but the Court cannot engage itself in plea bargaining.
The record has been made. Let's not make it four or five times.
BY MR. MARTY: I want to . . . not just her lawyer, but Miss Owens wanted to say, and I said on her behalf . . .
BY THE COURT: I assumed you were speaking for your client from the very beginning, Mr. Marty.
BY MR. MARTY: I am, Your Honor.
BY THE COURT: Anything else? BY MR. MARTY: No.
BY THE COURT: All right. We'll go back into Court, and I'll ajourn until 1:30.
BY MR. STROTHER: I believe there is one more motion filed.
BY THE COURT: We'll hold that in Open Court. (Whereupon counsel, the defendants, Judge McCartie, and the court reporter returned to Open Court, where the following proceedings were recorded.)
BY MR. STEIN: Your Honor, this morning I filed a motion for continuance, along with my affidavit in support of a Motion for Continuance. I alleged, and I set it out in four separate paragraphs as the reasons why I was seeking a continuance.
5. Lenore Walker Battered Womens Syndrome Key Elements of a .02-05-10
her as to all these matters.
What we're objecting to is the ordinary, customary visit by-the jail doctor to determine if she needs to go to Central State. We feel like in a case such as this equal protection, due process, fundamental fairness require that she be accorded in a case like this that has some vary unusual elements regarding mental state of mind and other things pertinent to that that she be afforded [ILLEGIBLE TEXT] standards of psychiatric care above just ordinarily what's done in the jail.
We don't believe that a thirty minute visit by a jail doctor can determine if she needs to be examined psychiatrically for matters that are way beyond the purview of competence to stand trial and insanity at the time of the commission of the alleged offense.
We're talking in terms of state of mind. We're talking in terms of criminal intent. We're talking in terms of a highly specialized and very unusual defense; that being the battered-wife syndrome. And we feel like that any psychiatrist that renders aid to the court, which is the duty of an expert witness to render aid and assistance to the court and to the jury, must be familiar with the characteristics of that syndrome.
There are available in Memphis we understand, and are trying to determine more fully that right now, psychiatrists that specialize in that. There is a Women's Resource Center I understand that has resources available perhaps without any great costs to the state-that would have experts that could examine her in regard to this particular aspect of the case.
So I'm not just asking for a boilerplate motion of have the jail psychiatrist look at her and determine she needs to go to Central State. We're talking not" only about competence at the present time, insanity at the time of the commission of the offense under the Model ALI code.
We're talking also about natters that go to criminal intent, the formation of criminal intent, matters that go to state of mind, culpability, and matters that go to mitigation in view of a conviction of first degree murder.
We Feel like that honestly because — and I'm not crying to sing the sad song — but Mr. Porterfield got the auspices of the public defender's office by getting the first appointment. They take the position and have for years that once they're appointed on one defendant that they're not appointed on the other.
How, that means — THE COURT: What kind of argument are you making now?
MR. EMMONS: Making the argument we're cut short on some things that we don't have as two private lawyers.
THE COURT: I don't see how.
MR. EMMONS: Well, we don't have investigators. We don't have staffs. We don't have full-time employees. And we feel like to subject our client to a defense that is this technical and it is centered and rooted and grounded so strongly —
THE COURT: what have you asked for that you've been denied that the public defender has access to?
MR. EMMONS: I'm just saying their resource is greater, Your Honor. Nothing.
THE COURT: What have you asked for that you've been denied?
MR. EMMONS: Nothing yet, but if I ask for a monthly salary like they get, I think the court would probably deny roe that. I mean they are on monthly payrolls. They are — Mr. Jones' is a full-time employee of the public defender — THE COURT: I am in favor of doing away with the public defender's office and appointing lawyers case by case and maintaining the staff and research and the investigating office, so. . . . . . . . .
MR. EMMONS: I'm not complaining about what the court's done, not at all.
THE COURT: Well, I think you are. You're complaining now that you don't get a monthly salary.
MR. EMMONS: I don't believe the court has control over that. I was just — THE COURT: Have you asked for a monthly salary?
MR. EMMONS: No, sir. I — THE COURT: My question was what have you asked I for. that you've been denied?
MK. EMMONS: Well, 1 hadn't asked for it. I hadn't asked for it because. I thought the court didn't have the authority. The court might and I might do chat.
THE COURT: Okay. Do it.
MR. EMMONS: Sir?
THE COURT: Do it.
MR-EMMONS: Okay, sir.
THE COURT: Denied.
MR. EMMONS: Yes, sir.
Bascially, what I'm saying is that the typical psychiatric examination is not what we're asking for. We don't have the funds to hire it. The only think I can compare it to, Your Honor, this — I know it's an unusual motion.
But I've got a case right now in another court where a defendant who has not got a lot of money but has enough to pay a lawyer and to pay for psychiatric examination. And he is right now under the. care of a speciality type psychiatrist, fine East Memphis office, who can look into his own particular needs and help him and assist him in preparation for-trial.
There are so many things that occur in psychiatry now and in criminal cases. For instance, Mr-Marty has reminded me of the numerous cases — not numerous cases, been two or three cases tried, and I think Your Honor tried one on a Gary Cone, I believe was the name of the defendant where the Vietnam syndrome was raised as the defense —
THE COURT: No, I think that was Judge Beasley.
MR. EMMONS: Judge Beasley. All right.
And I believe at that time they were able to get psychiatrists from Veterans Administration Hospitals who had experience in that particular area of psychiatry. And we're asking for a similar thing.
To ray knowledge, there hasn't been a classic or a true badtered-wife syndrome case tried in Shelby County. There might have been some somewhat like. that. There have been only a few of them tried in the United States. We believe and honestly state to the court that we believe this case has a meritorious defense in the battered-wife syndrome.
That's why I say in my motion for continuance and refer back to this motion for mental exam that there are numerous things we're going to have to do to get ready for this case that are out of-the ordinary if we're to be effective as attorneys and counsel for the defendant.
This is just a place to start, Your Honor. I believe that to say if she needs psychiatric examination or mental examination let the jail doctor look at her and maybe send her to Central State would be tantamount to saying that a person with an advanced neuropsychotic condition should be seen by a general practitioner.
That's not to cast dispersions on the state doctors at all. But it's just paying that we're talking here about sophisticated psychiatric situations and conditions that an indigent defendant simply has no access to, and co me, that just boggles the mind as far as fundamental due process is concerned.
And that I've asked for psychiatrists to testify that basically what I've stated here I think would make it a much stronger motion, but I can't privately hire psychiatrists to do that. I'd like to ask this motion be reset untill the 18th of October also —
THE COURT: No, sir.
MR. EMMONS: — and give me- THE COURT: No. We're not going to reset motions now. That one motion.
MR-EMMONS: Yes, sir. But I can't —
THE COURT: You've had — you've been knowing about this for months now. You-all be ready. If you're not ready, you're not ready. .
MR. EMMONS: But I'm saying I can't present this motion, Your Honor, without an expert who I can't hire. How can I properly present this motion?
It's just like the death-qualified-jury motion. How can I present that motion — how can I present proof to that motion without sociologists? Can't do it. And yet this is an indigent defendant and if the court will not give me money to hire sociologists, I can't present the death-qualified-jury argument.
And if the court won't give me money for psychiatrists, I can't bring any experts up here to give assistance to the court to show what X mean by this defense and how there are various fields of expertise within psychiatry, and the, battered-wife syndrome is a sub-speciality all of its own. And for the court to understand this and the jury to understand, it will require expert assistance that we can't provide for
THE COURT: State.
MR. STROTHER: Your Honor, I don't know exactly where we ever draw the line. You know, you talk about indigent defendants and equal representation. Well, how equal does it have to be?
Perhaps, if any defendant had enough money to go out as the governor of Louisianna does and hire Mr. Neal and bring in a courtroom full of experts and go the world over, well, I don't think anything requires that. I think — Or that in the indigent defendant field chat we are required to bring in chat kind of proof.
I think if there was some factual basis in this record for the necessity of this type of examination that perhaps Mr. Emmons might have — might-have a valid point, but there is not one scintilla of evidence before this court to show or to indicate the need for this type of examination. And in the absence of any evidence that such examination is needed, I don't think the court has any choice bur to deny the motion at this time.
I don't know chat the court has the money to pay one I know I don't. And I don't know where the court would get the funds if it chose to so order without going to the Supreme Court and asking for an allocation for those funds. And I certainly don't think the Supreme Court is going to do that on the record that we have here, and that's the record that the court is called upon to act on.
It's totally silent. There is no proof. No witness has been brought in here to say, Oh, I knew Mrs. Owens and, yeah, this guy used to batter her, or she cold me about it and I saw her injuries. There's no proof before the court, so there is no basis whatsoever for this motion.
THE COURT: Mr. Owens — Mr. Emmons.
MR-MARTY: One moment, Your Honor.
Mr. EMMONS: Could we have just a moment to confer, Your Honor?
THE COURT: Yes, sir.
(Pause)
MR. MARTY: Judge, could counsel and I approach the. bench on the record? I want to make a statement to the court on the record out of the earshot of the rest of the courtroom, with the attorney general too.
THE COURT: What about your client?
MR. MARTY. She knows what I'm going to tell the court.
THE COURT: State, any objection?
MR. STROTHER: No, I — I guess it's simply a matter where he wants to approach the bench. I don't have any objection do approaching the bench.
THE COURT: All right. You may approach the bench.
MR. STROTHER: I want to hasten to add that in these motions, just as anything else for the record, counsel's statements are not evidence.
THE COURT: Well, the court don't have to be reminded as to that.
(Whereupon, a bench conference was held on the record and the following proceedings were had:)
MR. MARTY: Judge, we just simply want to state that during the course of our investigation with Mrs. Owens, we have determined and learned from her that the deceased engaged in certain sexual-perversions, to wit, sodomy, fellacio, to the point where she was required to throw up, to the point where" she was — her rectum was torn, and that. her — his — THE COURT: You got medical proof?
MR. MARTY: We have her proof, Your Honor.
THE COURT: Do you have medical proof?
MR. MARTY: No.
THE COURT: Did she seek medical services?
MR. MARTY: No, she did not.
MR. EMMONS: Judge, we don't blind putting her on, but we want a ruling from the court that any cross-examination by the State would be related only to the matters that are inquired into by — in support of the motion. . Maybe that's what we want to — clear.
I'm saying the point is — I've got another theory, Judge, and I hate to sensationalize this trial before it becomes necessary because once — this is all going to come out like a little Peyton place, and horrible things and terrible allegations that obviously are going to be made at trial, and we feel like by then that we can have more proof available.
A lot of this, Judge, are things that we just-learned about within the last week. You know if the paper — It's some very rather horrible allegations and some other things that went —
THE COURT: Does that go to insanity?
MR . EMMONS: It goes, Your Honor, to the intent and —
THE COURT: Well, that might go to intent, might go to state of mind, and all that, but is she competent to stand trial? Does she understand the nature of the charges pending against her, and can she effectively communicate with her counsel and defend herself — in her defense.
Wow that is what the court is. called upon to rule upon.
MR. EMMONS: Well, 1 don't see any great problem with competency. I don't see any problem with that, even though out of an abundance of caution we raise that issue too. But I think the issue is not competence to stand trial but rather state of mind at the time these offenses occurred and would have to do with insanity at the time of the commission of the crime, though it's not purely an insanity defense. It relates to state of mind. It relates to —
THE COURT: Well state of mind —
MR. STROTHER: (Simultaneously) That's a factual —
THE COURT: If you're talking about competency to stand trial or insanity at the time of the — If you're telling me that insanity at the time, I'll order an examination right now.
MR. EMMONS: Well, I'm telling you, Judge, that under this strange type of situation — "
THE COURT: WELL, that's all proof — that's all a natter of proof though.
MR. EMMONS: But that's what we need a II psychiatrist for, Judge. I mean to testify —
MR. STROTHER: (Simultaneously) Won't be able to give you proof.
MR: EMMONS: — to testify — In other words, if we have truly a battered-wife-syndrome case here, then how can we tell whether that rises to the degree of insanity required by the law to present an insanity defense without medical proof?
MR. STROTHER: Well, let's find out first that you've got that and hear some evidence that you have that.
MR. EMMONS: I cannot object to the — maybe the first step being the routine procedure —
THE COURT: There's got to be some basis on which I order an examination.
MR. MARTY: Judge, we're prepared to put her on —
MR. EMMONS: Judge, we come in court all the time on people and say, Your Honor, I've talked to him and I think there is an insanity defense or something —
THE COURT: Well, do you think there's an insanity defense?
MR. EMMONS; It's hard for me to know, Judge, because this is — I've never encountered this before. I don't know if a battered-wife-syndrome can cause a person to be under the — to have a mental disease or defect to the extent that you cannot appreciate the wrongfulness —
THE COURT: Isn't that a question for you to school yourself on as counsel?
MR. EMMONS: I don't think it's for me. I think a psychiatrist is going to have to make that determination. In other words, I can tell you there's enough evidence —
THE COURT: I said to school yourself on. The only thing I know is to either get into the books or. talk to psychiatrists, one or the other.
MR. EMMONS: Well, I think I can say, based on what I know already, that I believe there is enough evidence of insanity that we ought to ask for the court to have her examined.
THE COURT: Send to Bolivar State right now — I mean Central State and have her examined. If you're telling me that she is — chat you have a competency question
MR. STROTHER: Have to — — —
COURT REPORTER: I cannot hear Mr. Strother.
THE COURT: Well, we'll have her sent for an examination and see whether or not she is going to be competent to stand trial and than whether or not there's any evidence, to substantiate an insanity the tine of the offense, end chat can be done right here. Just like any other defendant:.
MR. MARTY: That's fine.
THE COURT: Just like any other defendant.
MR. MARTY: That's fine, Your Honor.
MR. EMMONS: Well, then our motion still — THE COURT: And if it comes back that the report is that she is competent to stand trial and understands and can communicate — the nature of the charges and gravity of the offense and can communicate with her attorneys and assist and aid in. the defense and there is no evidence to support a Graham ruling case, whether it's her or anyone else, the court is bound by that, Isn't it?
MR. EMMOMS: I think so. That's what basically I was trying to say, that our motion is asking one step beyond that. That even if — I don't —
THE COURT: well, I'm not going to — I'm not going to start spending taxpayers' money when there is no basis in fact to spend it.
MR-EMMONS:. I understand that. But this might give us the basis in fact to ask for it later. I mean if . there truly is this syndrome present and if it truly relates to the Graham definition of insanity —
THE COURT-If you're telling me that she is — she needs to-be examined for competency?
MR-EMMONS: Not as to competency, but I think they'll want to make that determination too. But as to whether or not she was under the Graham definition mentally culpable, the traditional insanity defense.
MR. CHALLEH: We can do that in one week. You can have somebody down here, don't have to send her away. The preliminary examination —
THE COURT: It would be right here.
MR. EMMONS: Well, then if they — After the preliminary examination, if they feel like there is cause to further evaluate her, then it would —
THE COURT: That's another matter.
MR. EMMONS: Then at that time, though, if there is evidence developed that that state doctor could testify to about this syndrome that he is not competent to evaluate, then we could —
THE COURT: I know but you're just saying — you tell me front blush Chat he's not competent. You don't know whether he is or not.
MR. EMMONS: That's probably right, Judge. That's probably — You're probably correct. I'm just assuming from what I —
MR. STROTHER: He can also probably tell you. whether he thinks there is any basis for any further examination. I
THE COURT: If that's it, Wayne, number one, you've got to have some sort of reason for me to examine — to order an examination. And number two, "based upon that examination., we'll go from there. But I'm not going to order this to be done on the flat statement that nobody is qualified — state is not qualified to do this.
MR. EMMONS: Our dilemma is, Judge, that we don't really think that she's incompetent right now. We can confer with her and she talks. But we don't know, based on this battered-wife-syndrome, how that related to her culpability insanity wise, if that rises to a true insanity defense.' I really in all honesty and talking-it out here at the bench can't say I would object to the court ordering her examined by the state doctors; though I would want to reserve her right maybe to come — Q At this point, that's the only thing 1 can do, Wayne.
MR. MARTY: Well, that's a step anyway because we do feel, based on the information we've been told —
MR. EMMONS: Within the last five or six days.
MR-MARTY: — that is a distinct possibility.
THE COURT: If she is incompetent to stand trial or was insane at the time of the commission of the offense — alleged commission of the offense, that has to be determined by way of an examination. You just can't flat. . . .
MR-EMMONS: Neither one of us suspected this in our first several visits with her. It's only been within the last, week that we found out about all of this perversion and all this other stuff. We got it from her plus —
MR-STROTHER: We knew about it two months ago.
MR. EMMONS: Knew about what two months ago?
MR. STROTHER: That she was going to try this gig.
COURT REPORTER: I cannot hear Mr. Strother.
MR. STROTHER: Oh, her sister told us this is what she was going to try.
MR-EMMONS: Well, I wish they had told us that along with where lieutenant-what's-his-name was.
THE COURT: Right at this time I'm going to deny your motion. I'll give you — On this, I'm going to deny this motion, but I'll enter an order for a mental examination to determine the two things, competency and the mental state at the time of the offense.
AFFIDAVIT OF JAN VOGELSANG, M.S.W., BCD
Jan. Vogelsang, being of lawful age, stales the following:
1. I am an adult resident residing in Greenville, Greenville County, South Carolina.
2. I am a clinical social worker. I have testified as an expert in family and criminal courts for twenty nine years and have been qualified as an expert witness in ten slates including Tennessee. My cases have included physical, sexual and emotional abuse, neglect, battered women, divorce, custody; termination of parental rights, non-capital crimes and capital crimes. My work history includes experience related to post traumatic stress, family violence, child welfare, family systems, child development, neurological impairments that affect learning, and other areas elated to mental health. Among my work history, I spent two years as program. director of a shelter for bartered women. In that capacity I worked with wives and children who were being victimized by fathers and boyfriends. I testified on their behalf in court
3. I have an undergraduate degree in psychology from Pepperidge University in California and a masters degree in social work from the University of South Carolina. I am licensed by the South Carolina Board of Social Work Examiners and am board certified by the American Board of Examiners in Clinical Social Work. I have a private practice in Greenville, South Carolina.
4. Clemency counsel for Gaile Owens asked me to evaluate the investigation and presentation of mitigating evidence on Gaile Owens's behalf at both the trial and post-conviction hearing, and provide an expert opinion about what went wrong. Clemency counsel expressed their frustration that almost no mitigation investigation took place prior to trial, that the expert used in state post-conviction proceedings completely dropped the ball in his testimony, and that as a result the hands of the federal court were lied as to making any new factual findings. In addition, they asked me to do a Biopsychosocial Assessment and to provide an expert opinion about how and why Gaile Owens came to be in a situation where she would cause the murder of her husband. While I am very confident in my findings, I am certain that I would have been able : to provide much richer detail if I had been contacted at the time of trial. However, what I found in my evaluation, of the case follows in this Affidavit and in the attached Affidavit and Biopsychosocial Assessment .
5. A few preliminary remarks are in order. What I found in. this case is a shocking example of ineffective assistance of counsel and a complete failure on the part of the expert in-post-conviction to present the truth of Ms. Owers's life and experiences and a full picture of who she was in mitigation.
Trial of Gaile Owens (1986)
6. Gaile Owens Was arrested in February 1985 for hiring Sydney Porterfield to kill her husband, Ron Owens. Ms. Owens was charged with accessory before the fact to first degree murder, and co-defendant Sidney Porterfield. was charged with first-degree murder.
7. Prior to her trial in January 1986, there is no indication that anyone undertook any investigation in preparation for her sentencing hearing. Ms. Owens's attorneys did not hire an investigator, a mitigation specialist, or any other kind of mental health expert to assist them with her case.
8. However, Ms. Owens's attorneys did inform the trial court in October 1985 that they believed that Ms. Owens' had a meritorious defense in battered wife syndrome and requested expert funding. The. trial court would not approve expert funding to hire someone to assist Ms. Owens's attorney in developing that defense. Instead, the court ordered the State's mental health professionals at Midtown Mental Health Center to evaluate Ms. Owens for competency to stand trial and insanity. From a legal standpoint, the questions of mental competency and insanity are very different from the concept of mitigating evidence. Mitigating evidence is evidence which makes a defendant less morally culpable, i.e., mental disorders, but does not necessarily provide a defense to the charge of first degree murder like competency and sanity.
9. Contained within the Midtown file were several items that would have offered Solid clues for a competent mitigation investigator or capital defense attorney to pursue Sadly. Gorn the reconls I have seen, Ms. Gwens's attorneys never reviewed the Midtown file. The notes from Dr. Lyon Zager and Julianne Venable's evaluation of Ms. Owens in October 1985 include a discussion of Ms. Owens's very unhappy marriage, including her husband's affairs for the past four or five years, his sexual humiliation of her, and his verbal abuse of her. In addition, the notes radicate that Ron Owens had threatened Ms. Owens that he would take her two boys if she asked for a divorce. Overall, the notes indicate that Ms. Owens's marriage was tumultuous and difficult and as a result, Ms. Owens was suffering from significant anxiety and depression.
10. Julianne Venable, M. A., a psychology intern at Midtown, gave Gaile a diagnostic impression of Adjustment Disorder with Depression. She found Gaile to appear distressed and depressed during the evaluation and shaking and wringing her hands.
11. These "red flags" in the Midtown file would have alerted a competent. investigator or an attorney to formulate a plan for exploring Gaile's very unhappy and likely abusive marriage. Despite their belief that Ms. Owens had a defense of battered wife's syndrome, the trial attorneys never interviewed Dr. Zager or Ms. Venable, nor did they Investigate Gaile's marriage in any way. Had they done so, the attorneys would have discovered that their initial impression was correct, they did have a "meritorious case" in that Gaile Owens was a battered wife. Moreover, that investigation would have Jed them to significant and compelling evidence of childhood trauma and neglect which would have provided mitigating evidence in its own right.
12. It does appear that in the two weeks prior to trial, Ms. Owens's attorneys attempted to speak with Dr. Max West, a psychiatrist who had spent one hour with Ms. Owens in 1973. Counsel conracted Dr. Vest by letter on December 26, 1985. Counsel then apparently obtained Dr. West's very short file just a few days before trial, and spoke with him briefly before calling him to testify.
13. However, there is no evidence that trial counsel carefully reviewed Dr. West's file from 1978 or followed up on any of the information contained therein. Fiven though the information Dr. West had was minimal (which is normal for a mental health professional after spending only one hour with a patient, who is likely to minimize any problems) and dated, there was information in Dr. West's reporting letter that would have stood out to a mitigation investigator.
14. The following demonstrates the issues in Dr. West's file that would have caught the attention of a mitigation investigator from Dr. West's file:
a. Dr. West writes that Ms. Owens's brother, Wilson, has-disabilities. However, from his letter, it Was not clear exactly what his deficits were. It would be important to obtain Wilson's medical records and school records to get a sense of his condition. Medical and school records would also have offered case notes relating to Wilson and his family dynamics. Without his records, it was impossible to know exactly what was wrong with Wilson and how the parents treated him. As my Biopsychosocial Assessment indicates, Wilson's disabilities played a major role in Ms. Owens's life. The way in which the family dealt with Wilson was also significant in understanding Ms. Owens's development A qualified mitigation investigator would have followed up on this notation.
b. Dr. West reports in his letter that Ms. Owens stated that as a child she was exposed to deceit and lying on the part of her mother. This would have been an important area for a focused investigation into the nature of that tying. In addition Ms. Owens's father's strictness; lack of must, and her mother's confusing reactions to father would he among the family dynamics to be explored
c. Patients typically tell the therapist initially that they have a good marriage and good sexual adjustment However, Ms. Owens indicated that there had been sexual problems in the past. For an investigator, the sexual adjustment in their marriage would have been an important area to explore with Ms. Owens — especially where counsel already knew that Ron Owens had been sexually abusive to Ms. Owens, as they revealed in their request for expert funding in October 1985.
d. Again, while a patient typically minimizes their problems during their first session with a mental health professional due to anxiety and embarrassment, Ms. Owens admits during that first hour to lying about money and taking money for her family. These quick and clear admissions were of course obvious clues that something was wrong and that further investigation was necessary.
e. Also included in Dr. West's file was a sentence completion test. While not considered a scientific instrument, this test provides additional "red flags" for further investigation. In her answers, Ms. Owens demonstrated her love for her sons and their importance in her life and her remorse for lying. Ms. Owens also answered that she never wanted to be at home as a child she has to lie to be accepted, men are the stronger of the two sexes, she was sorry for stealing money, she never feeling needed, she felt self-hatred, her father was hard-hearted and did not show affection, her family felt her parents were too hard on her and her siblings, she felt insecure, and she tries to buy love. The sentence completion test thus offers an enormous amount of information about Ms. Owens and her family, including answers that intimate that Ms. Owens's childhood was very unhappy and that she has great disdain for herself.
15. Ultimately, only Dr. Max West, who had one, one hour session with Ms. Owens in 1978, and two prison employees, who worked with Ms. Owens in the laundry, were called to testify on her behalf at sentencing. Dr. West was able to testify only that Ms. Owens was haying some sort of severs problem. He was prevented by the court from further testifying about his notes, the sentence completion test, or his impressions of Ms. Owens and her family history. Upon cross examination, Dr. West stated that he gave Ms. Owens some "psychological profiles" to fill out and suggested that she return with her husband. The two prison employees testified that Ms. Owens was a good worker and that she spoke often about her love for her children.
16. No family members testified because none had been contacted or interviewed. Ms. Owens's attorneys did not gather any records whatsoever from-any source — no school records, no hospital records, no employment records, no medical records, no records relating to Wilson and his disability. They did not obtain any records at all relating to Ms. Owens, except for Dr. West's file.
17. What happened in Ms. Owens's case is a complete and utter failure to investigate and pursue obvious red flags identified in Ms. Owens's own reporting to her attorneys, her Midtown Mental Health evaluations, and Dr. West's file Counsels' failure to gather records, to speak with family members or friends, to interview the mental health professionals at Midtown and review their file, or to timely interview Dr. West and review his file, was egregious and did not meet even the minimal standards for mitigation investigation and the presentation of mitigating evidence in court.
18. Had I been retained at trial to work as a clinical social work expert in Gaile Owens's case in 1985. the following would have occurred before and during my work as one of the expert witnesses:
a. A trained mitigation investigator would have been retained and would have begun the most basic steps in preparation for the penalty phase, including meeting with Ms. Owens on a regular basis in order to establish a relationship of trust; meeting with Ms. Owens's family, extended family, friends, neighbors, teachers, etc.; obtaining records of Ms. Owens and her family members going back several generations (medical, school, employment, mental health, legal, military, etc.); and providing information to counsel on a regular basis.
b. With the information gathered by the mitigation investigator, a family tree (genogram) would have been designed to expose any patterns of problems in the family across the generations that might be relevant. The family tree would ultimately have been used as a visual aid in court to demonstrate who's who in the family and the patterns of behavior uncovered. For example, in this case, the family tree would have revealed a family history of domestic violence and sexual abuse across generations. Such a visual depiction of the cycle of abuse would have been important to the jury in understanding how Ms. Owens found herself to be married to a batterer.
c. The mitigation investigator would have continued over the next year at least, to gather data on socio-economic status, education, military service, mental health, race; culture, medical history, and religion, etc. The mitigation investigator would have traveled to Ms. Owens's community and would have consulted with other professionals regarding their on-going findings. Based on the information gathered, the defense team would have begun to develop themes and theories of mitigation.
d. The mitigation investigator would have worked with counsel to identify and select the appropriate experts and lay witnesses who could best describe Ms. Owens's life, her experiences, and their impact of her life
e. I would have been introduced to the family, friends, etc., and I would conduct clinical interviews with them. I would have interviewed Ms. Owens at least three times and reviewed all of the records gathered and documents generated during the investigation (typically, hundreds, sometimes thousands of pages of records depending on the case). Finally, I would have consulted with other retained experts, reviewed research and literature related to my findings, visited Ms. Owens's community and the Abundant Life Church, and prepared any additional visual aids to be used in court to help the jury understand the story of Ms. Owens's life.
f. I would have been called as witness to testify on Ms. Owens's behalf. I would have testified beginning with Ms. Owens's intergenerational history, her parents' childhood histories, their marriage, her birth, infancy, childhood, adolescence and young adulthood up to the time just before the crime. I would have used photographs, documents, and other visual aids to assist the court in understanding the information obtained and the conclusions drawn. I would have relied on numerous sources in a search for consistent and corroborative information At each stage, I would have explained what the information means and its impact on Ms. Owens. Other experts would then testify about their own findings, relying on the information I provided in my biopsychosocial assessment.
g. The biopsychosocial assessment, as described above, usually requires 150-200 hours of work (barring any unusual circumstances) by the clinical social work expert. I have attached my recent biopsychosocial Assessment of Gaile Owens (in Affidavit form) as an Exhibit to this Affidavit (Exhibit 1, biopsychosocial Assessment of Gaile Owens). In my opinion, this level of assessment was not conducted on behalf of Gaile Owens either at trial in 1986 or at her post-conviction hearing in 1997.
19. It has been my experience that in death penalty cases, family members and non-family members (friends, neighbors, ministers, teachers, etc.) are typically called to testify on a defendant's behalf in the sentencing phase. Typically, a clinical social worker and/or mental health professional will testify after the family, often for hours, maybe more than a day, about a defendant's life history, their family, their mental health issues, etc. It is routine for psychiatrists and psychologists to rely on a social history, also referred to by clinical social workers as a biopsychosocial Assessment, which relays very detailed information about a defendant and their background.
20. I can say with confidence after twenty years of conducting biopsychosocial Assessments in capital cases and testifying in the penalty phase as a clinical social work expert, that the penalty phase investigation and the presentation of mitigating evidence in Ms. Owens's case did not meet even the minimal standards for mitigation investigation and testimony in court.
Mitigation in Post-Conviction Proceedings (1997)
21. The mitigation investigation and preservation of testimony on Ms. Owens's behalf at her state post-conviction hearing was equally egregious.
22. Post-conviction counsel hired Eric Gentry, who had Bachelor's and Master's Degree in Counseling and a Certificate of Advanced Study in Traumatology Mr. Gentry was still a student, pursuing a Ph.D. in marriage and family therapy and psychotraumatology. Mr. Gentry bad an inactive West Virginia Social Worker's license. Mr. Gentry had no other professional licensures. Mr. Gentry was hired just two months prior to Ms. Owens's post-conviction hearing.
23. Post-conviction counsel had other more relevant and experienced experts available to work on Ms. Owens's behalf yet failed to retain them. For example, in 1994, Dr. Lenore Walker, the pre-eminent expert in battered women's syndrome, had agreed to work on Ms. Owens's case. It is unclear why Dr. Walker was not able to work on the case or why counsel failed to pursue hiring an expert of her calibur, experience, and relevant expertise for Ms. Owens. There were other nationally recognized experts in the field who would have been available to work on this case. If I had been contacted in 1997, I would have agreed to work on this case.
24. Post-conviction counsel and his investigators did investigate Ms. Owens's case prior to the hearing, gathering a number of records relating to Ms. Owens and her extended family and interviewing family members and friends that were still living. This investigation proved fruitful and revealed very relevant information about Ms. Owens's difficult childhood, her physical and sexual abuse as a child, her husband's infidelity and mistreatment of her, and Ms. Owens's very positive role as caretaker to her brother Wilson, and mother to her two boys. However, neither counsel nor Eric Gentry used this information in a meaningful or thorough way. Moreover, counsel didn't call any lay witnesses to testify about the mitigating information gathered and instead only used the testimony of Eric Gentry and Dr. Max West. Critically, counsel failed to interview and present the testimony of Dr. Lynn Zager, the forensic doctor from Midtown Mental Health Center.
25. While Eric Gentry was well-meaning, his inexperience, took a dramatic toll on his. testimony at Ms. Owens's post-conviction hearing. As a result, Mr. Gentry's work and testimony did not meet the standards I have come to know, practice and present. Mr. Gentry had never before testified and admitted on the stand that he would never testify again.
26. Mr Gentry testified about his credentials, which included many "certifications"-Certified Trauma. Specialist, Certified Trauma Therapist, Certified in Time Limited Trauma Therapy and Time limited Treatment for Dissociative Disorders, Certified in Bio-feedback, and Registered Traumatologist However, Mr. Gentry had only one license — an inactive West Virginia Social Worker's license. As the court and the prosecution pointed out, Mr. Gentry's "certifications" did not hold the same credibility as licensure would have.
27. Post-conviction counsel asked that Mr. Gentry be certified as an expert in traumatology, not social work. However, Mr. Gentry's testifying with a lapsed social work license did not meet the acceptable standards of practice.
28. Mr. Gentry testified that he was asked by post-conviction counsel to conduct a Psychosocial Assessment of Gaile Owens. Mr. Gentry's description of the assessment as Psychosocial and not Biopsychosocial is both misleading and inaccurate. An assessment for a capital case should include a multi-disciplinary approach including references to and referrals from psychiatrists, psychologists, medical doctors and other specialists in the medical field. As a result, the "Bio" segment of the assessment is an Integral part of the assessment, which should not be limited to just the psychological and the social aspects of a defendant's life.
29. If he had had a clear understanding of what a Biopsychosocial Assessment entails, Mr. Gentry might have explained that his assessment incorporated too few interviews especially with non-family, a lack of historical records on Ms. Owens's extended family, and no development of inter-generational patterns.
30. Moreover, a Biopsychosocial Assessment should tell the story of the defendant's life in a way that makes sense. The information included should come from more than one. source whenever possible and should be presented in a chronological fashion so as to avoid confusion. In Mr. Gentry's Psychosocial Assessment and in his testimony, Ms, Owens's abuse was introduced immediately with no explanation about the relevance of her family background, parental relationships, and her chronological history. A mitigation expert should be trained to put a life into context, not to pluck out pieces that are the most convenient.
31. Importantly, Mr. Gentry also failed to provide any context for Ms. Owens's life by explaining the role of child development and family systems, how children develop resilience and identity, and providing an overview of the family history. In response to one cross question, Mr. Gentry's response began with "as Gaile kind of developed." While Mr. Gentry included many of the details of Ms. Owens's life consistent with the information I obtained in my Biopsychosocial Assessment of Ms. Owens, the presentation was disjointed and confusing. As a result, the post-conviction trial court kept asking for clarification. I too found the information from Mr. Gentry confusing and lacking in clarity. Mr. Gentry's failure to use visuals to allow the post-conviction trial court to follow along, contributed to the confusion in his testimony.
32. Mr. Gentry also failed to thoroughly address the socio-economic dynamic of Ms Owens's family. Mr. Gentry failed to describe the family's financial straggles in terms of factual information, but instead just concluded that the Kirskey family was poor. Mr. Gentry should have provided detailed information. For example, Jewell Kirksey, Ms. Owens's father, was a hard working man and the family struggled, Izora Kirksey, Ms. Owens's mother, took in children to babysit, for extra money, Wilson's disabilities created costly expenditures for the family; other family members and the church had to step in to assist the family with the needs of Ms. Owens and her sister. It was not enough for Gentry to simply state that the Kirksey family was poor.
33. Completely missing from Mr. Gentry's Psychosocial Assessment was any examination of the impact of the Pentecostal faith on Ms. Owens's early development Ms. Owens's experience in the Pentecostal church with "thought reform" solidified the concept of female submission to males in her life from birth, to childhood, to adolescence and adulthood
34. Mr. Gentry also failed to address how Ms. Owens, unlike her siblings, was left to manage her fear of church teachings about the power of men, to deal with her violent father and grandfather, to cope with the sexual abuse of a beloved uncle, and ultimately to contend with her violence and sexually abusive husband As a child, there was no intervention for Ms. Owens during the years of ongoing and unrelenting stress at the hands of men who did not have her best interests at heart. Her sister escaped at a young age to the home of a pastor who was more modern and understanding in his approach. Her disabled brother received a different kind of care at Shiners School and was male, even if impaired In spite of the best efforts of her Uncle Nicky and Aunt Nanny, the ongoing and consistent help she needed was never there. Mr. Gantry failed to explain this dynamic both in his Psychosocial Assessment and his testimony.
35. Mr. Gentry failed to use any visuals to help show the post [ILLEGIBLE TEXT] vietion trial court how Ms. Owens's behaviors were consistent with trauma both in childhood and adulthood. Moreover, Mr. Gentry did nothing to explain accommodation — how it is that children adapt to abuse and learn to lie to protect their abusers when they see others who are supposed to protect them, fail to rescue them from abuse. A visual of childhood symptoms of trauma (lying, stealing, ruminating, fearing doom, etc.) and adult symptoms of trauma (substance abuse, obsessive cleanliness, depression, etc.) that included observations of Ms. Owens's behaviors (anxiety, panic, substances, response to rejection, overreactivity, emotional constriction, etc.) would have been a powerful demonstrative to be prepared by a traumatologist Using jargon like "triphasic," and "biphasic" does not have the same impact on understanding behavior as do simple examples of behaviors consistent with trauma.
36. Also missing from Mi. Gentry's Psychosocial Assessment was a discussion of Ms. Owens's good conduct as a child and the absence of any evidence of stealing, lying or other poor behavior. Ms. Owens stole at home at the direction of her mother or because she had watched her mother punish her father. Ms. Owens was never arrested as a juvenile, never punished for any illegal activities, and never involved in drugs or alcohol. In fact, she. was exceptionally quiet, well-behaved and easily managed. Ms. Owens's small attempts at rebellion as an older teenager resulted in no punishment until she had the courage to leave home and was sexually humiliated by her father as he strip searched her for drugs and then beat her with a belt while she lay naked across the bed.
37. Mr. Gentry's failure to discuss Ms. Owens's good conduct as a child, adolescent, and during the early years of her marriage eliminated any context for Ms. Owens's pattern of embezzlements around the time her sons were born. These embezzlements were clearly out of character for Ms. Owens, and importantly, were behaviors for which she was easily caught. Mr. Gentry's refusal to acknowledge and discuss this context and the embezzlements prevented the post-conviction trial court from understanding that rather than establishing Ms. Owens's bad character, these embezzlements were a symptom of the problems in her home. Ms. Owens was stealing because she was trying to please her husband, her abuser, and to lessen the financial burden to the home. Ms. Owens had learned this very dysfunctional coping mechanism at the feet of her mother, who stole from her father as a way of handling stress in the home. Thus, when viewed in the overall context of Ms. Owens's life, the embezzlements make more sense. It was also important to note that Ms. Owens's actions were not "selfish" in the sense that she was not stealing for her own financial gain, but rather was often spending the money on others. —
38. Finally, Mr. Gentry made no effort to address the power of neglect or to summarize the accumulation of stressors in Ms. Owens's life, the impact of those stressors on her behavior, and her responses to stress. Importantly, Mr. Gentry failed to explain how Ms. Owens's development had impaired her abilities to reason, to step back, soothe herself, and examine her options rather than react to her impaired judgment, insight and decision-making Overreactivity and hyperarousal are hallmark symptoms of trauma.
39. Mr. Gentry failed to include a discussion of Ron Owens's chaotic childhood. Mr. Owens's own deceptive behavior (including his lies about serving in Viet Nam and about his lies on his application for employment at the hospital) was never examined by Mr. Gentry. "While it is important not to blame the victim, in this case, Mr. Owens's own family life was worthy of "contemplation and discussion, particularly in order to address what often happens when two adults who were abused as children marry.
40. Mr. Gentry's disjointed presentation disrupted any hope that the post-conviction trial court would make reasonable connections between the accumulation of stressors in Ms. Owens's life and the crime, not in order to excuse her, but to meet even the most minimal standards for examining Ms. Owens's development into a person who could commit this crime.
CONCLUSION
41. In my opinion, a thorough and complete mitigation investigation, biopsychosocial assessment and presentation of the findings in court were never conducted on behalf of Gaile Owens in any court. This case represents a shucking failure on behalf of the trial and post-conviction lawyers. In my experience, even a minimally competent investigation would have produced important and compelling evidence which the jury should have heard before sentencing Ms. Owens and the judge should have been aware of during post-conviction proceedings.
Further affiant saith not
________________________ Jan Vogelsang
Dated this 22 nd day of July, 2009.
Sworn to and subscribed before me on this the22 nd day of July, 2009.
AFFIDAVIT OF JAN VOGELSANG, MSW, BCD
Jan Vogelsang, being of lawful age, stales the following:
1 I am an adult resident residing at 12 East Earle Street, Greenville. Greenville County, South Carolina, 29609.
2. I am a clinical social worker. I have testified as an expert in family and criminal courts for twenty nine years. I have been qualified as an expert witness in ten states including Tennessee. My cases have included physical, sexual and emotional abuse, neglect, battered women, divorce, custody, termination of parental rights, non-capital crimes and capital crimes. My work history includes experience related to post traumatic stress, family violence, child. welfare, family systems, child development, neurological impairments that affect learning, and other areas related to mental health. Among my work history, I spent two years as program director of a shelter for battered women. In that capacity I worked with wives and children who were being victimized by fathers and boyfriends. I testified on their behalf in court.
3. I have an undergraduate degree in psychology from Pepperdine University in California and a masters degree in social work from the University of South Carolina. I am licensed by the South Carolina Board of Social Work Examiners and am board certified by the American Board of Examiners in Clinical Social Work. I have a private practice in Greenville, South Carolina.
4. Clemency counsel for Gaile Owens asked me to conduct a Biopsychosocial Assessment of their client, Gaile Owens. They expressed their frustration that the Courts who had looked at the case had all made the same classic mistake of discounting claims of abuse because Gaile had minimized the abuse at the beginning and because she had been so successful in creating the image of a "perfect family." They asked me to provide my expert opinion as to how Gaile came to be in a situation where she could cause the murder of her husband. In my almost thirty years of involvement in these types of cases. Gaile stands apart What I found in my evaluation of the case follows in this affidavit
5. A Biopsychosocial Assessment is a professional clinical social work method of examining the life history of an individual using numerous sources including interviews, records, consultation or review of the records of other professionals, visual aids, research and literature, community visits and other activities depending on the nature of the case. Conclusions are drawn based on the findings and expert opinions based on those findings are then given in court testimony.
6. A Biopsychosocial Assessment is used in a number of settings, but in court the findings are used to assist the court in the disposition of a case. In capital cases, the assessment is typically used in the penalty phase not as a way of excusing human behavior but in order to shed sight on behavior in an attempt to come to some understanding of how the defendant ended up in their current situation.
7. The following is a modified assessment done post-trial and post-habeas proceedings and is based on approximately nine hours of interviews with the Gaile Owens and the review of voluminous documents describing her history from different perspectives (medical, education, employment, psychiatric, etc.).
BIOPSYCHOSOCIAL ASSESSMENT OF GAILE OWENS FAMILY HISTORY
8. The first step in conducting a biopsychosocial history is to look at the family history. It is important to identify patterns of behavior which often go back for generations. This is true because these patterns of behavior often repeat themselves in the life of the defendant, as they did in Ms. Owens case. Understanding the role of family history in the life of Ms. Owens can shed light on much of her behavior, including how it is that she came to marry an abusive man, and why she was unable to extricate herself from her marriage.
9. The family history of Gaile Owens begins with her father Jewell Kirksey who was born in Tigrett, Tennessee, to Walter Britton Kirksey and Eula Francis Harber. Jewell had two sisters, Elease and Delores and one brother, Marshall. The family moved to Ripley, Tennessee and Jewell considered Ripley his home.
10. Gaile's mother, Izora Nichols, was born in Byhalia, Mississippi, to James Nichols and Willie Louise Nichols, but while she had family in Mississippi, she considered Memphis, Tennessee her hometown. She was the youngest of seven children (Vardeman, Benny, Linnie Mae, James Augustus, Aubrey, and Elnora). Two of her siblings died in childbirth. Izora knew nothing of her father as her parents divorced when she was very young. In fact, Izora was still an infant when, her father abandoned the family.
11. While Izora attended high school, it was not known if she graduated She was described as uneducated and not very intelligent. She was "small-minded," and focused on her medical problems (both real and perceived). Jewell was described as "a mean-spirited man" with a "wild temper," who had a hard life as a child. His father was known to be abusive to Jewell and his brother and sisters and to he cruel to animals: His mother was known to be demanding and jealous as demonstrated by her temper. Jewell completed the eighth grade, obtained a GED and joined the Navy.
12. Chile knows very little of her family history beyond her parents, aunts, and uncles. She knows that there were "drinkers" on both sides of her family and her father's ancestors were farmers. She does not know what kind of work members of her mother's side of the family were engaged in or how her maternal grandmother-supported so many children after her father left.
CHILDHOOD HOME ENVIRONMENT
13. Izora had been raised in a very fundamental Pentecostal religion, and she created a home atmosphere of fear, one lacking in joy. She belonged to a church that was "legalistic," and failure to follow the rules resulted in burning in hell. Jewell was hung up on sex. and prevented normal social relationships for his daughters by scaring boys away. In fact, he scared girlfriends away as well and kept a shotgun at the door, further alienating Gaile and her sister from the opportunities to create healthy social relationships.
14. Izora was an unhappy wife and mother. She wanted Jewell's approval but went about getting it in the wrong way. She was a jealous woman who would steal from her husband and lie about it. In fact, Izora was jealous of everybody including her daughters. She would set the children up to be punished by rushing to the door to tell their father all the things they had done wrong during the day. Then she would rush to defend them after Jewell began to beat them, when it was too late.
15. Jewell was a drinking man who came home drunk frequently. For eighteen years he rain a service station and then later was a mechanic for equipment at the local cemetery. Rather than leave him alone when he came home drunk, Izora would keep Gaile up at night and make her wait by her side for Jewell to come home. When Jewell staggered in, Izora would confront him and set up a fight. Gaile would beg Izora to just leave him alone or let him eat or whatever would allow him to sleep it off. But her mother used Gaile as a buffer and would not let her leave the room. Gaile witnessed their rights at least three days a week and watched as her father re-established his position of power in the family by beating Izora.
16. The Kirksey house was also a house of secrets where no one received an honest answer to any question and where asking questions was usually met with silence and disapproval. When Izora's marriage to another man prior to marrying Jewell was discovered by her daughters, Izora continued to deny it even when there was no reason to do so. Jewell and Izora were late in getting help and treatment for Gaile's brother Wilson who was born with cerebral palsy and who was slow mentally because they did not want to admit that Wilson had a problem. It was only after the insistence of Gaile's uncle that they sought help for Wilson. Similarly, Gaile's parents denied Gaile's cries for help when her Uncle Marshall was molesting her.
17. hi addition, Izora babysat between eight and ten children in their home at any given time. The house was messy and it fell to Gaile to keep it clean from the time she was small. Izora prided herself on toilet training and potties were lined along the pantry hallway of their small home. Baby beds were in every room and Gaile had to sleep with a baby. There was never any privacy or special attention. Izora martyred herself before others as the caretaker of her special needs child, Wilson. Yet at the same time, she filled the home with other children to make extra money. Little energy was left for Gaile's emotional and developmental needs.
18. Gaile came to view her home environment as one where she had to survive one day at a time. Her father's abuse resulted in welts and bruises. Jewell's physical violence knew no bounds. One time, Gaile witnessed her father hold a knife to her mother's throat threatening to kill her.
19. When Gaile was a young woman working and still living at home, she had gone to stay with a friend to get relief from her situation at home. When she returned, Jewell forced Gaile to strip naked and examined her body in the presence of Izora on the pretense of looking for signs of drug use even though he had no reason to suspect her of any wrongdoing. Gaile had been a good student and had never been in trouble nor had she ever used drugs. Izora looked on without defending her daughter. Gaile was degraded, humiliated and shamed by her father's violation of her body and mistrust.
EARLY SPIRITUAL INFLUENCES
20. From the day she was born. Gaile was raised in the Pentecostal faith. In this faith, one was to be "in this world," but not "of this world." Born into the religion, one was already "thought reformed." If one joined the Pentecostal church later in life or from another `denomination, they had to be subjected to "thought reform," which meant that one never questions anything. Men and women were held to a different standard and women were to be kept-childlike, to be seen and not heard. They were required to be submissive and to demonstrate that submissiveness in their dress and behavior. Men controlled the home and their wives.
21. During church services people spoke in tongues, fainted, and laid hands on one another. The church had an interpreter to translate the message of tongues. The church was "legalistic" with rigid rules — the breaking of which resulted in hellfire and damnation. Those who broke the rules were disfellowshipped and doomed to hell. So abusive were many of the beliefs of the church, that in more recent years, a formal spiritual healing group and website were developed to help former members of Pentecostal churches to overcome the mental, emotional and behavioral damages done by the teachings.
22. Gaile was unable to develop self esteem and self worth because of her mother's religious beliefs and her father's support of those beliefs. She witnessed her father's beatings of her mother, her disabled brother, and her sister and was herself the victim of his physical violence. This occurred for years within the context of "thought reform" in which she was brought up to believe that as a girl, she was less, inferior and must be submissive.
23. Moreover, Gaile was frightened by the Pentecostal faith. She found speaking in tongues to be scary and the threat of hell for a simple offense like wearing short sleeves confused her. Izora was legalistic and believed that any broken rules doomed you to hell. When Gaile visited her cousins, she was allowed to paint her nails but her aunt and uncle would stop for polish remover on the way home and have her nails clean by the time she reached Izora's front door.
24. Gaile watched her father, who was raised Methodist but supported Izora in raising the children in the Pentecostal faith, drink excessively. Gaile watched her mother "get around" her lather by lying and stealing when he was drunk knowing he would not be able to remember about his money. . Jewel] ran a gas station and kept a bag of cash and receipts in their house. Izora would wait until he passed out, steal his money and lie to him often telling him that Gaile took it. Then Izora would stand by quietly as Gaile would be beaten for her mother's offenses. Gaile came to believe that her father's drinking and the abuse of her mother was her fault, that she was bad, and that she deserved to be mistreated. When Gaile recalls the Christmas holidays, her most vivid memory is waking up and giving her father a Tylenol, Christmas after Christmas.
25. Gaile was also afraid of the practice of-speaking in tongues. The children were expected to speak in tongues-and she just couldn't figure out how to do it but she didn't want her name to be among those doomed to hell for not doing it. She was supposed to get "the Holy Ghost," but it seemed that you could never do enough to receive the spirit. A friend at church taught her how to pretend just to get her name on the board of those who could speak in tongues and not be called upon over and over to demonstrate their abilities. Hex friend told her just to "do it," to make the elders happy.
26. Gaile was also frightened when people in the church fainted. Worst of all, Gaile hated the many times when Izora would force her brother Wilson, who had cerebal palsy, to go through the laying on of hands to take away his disabilities. Then, when Wilson was not healed, Izora and the church would tell him that his faith was not strong enough. Mentally slow, each time Wilson believed with all his heart that his faith was strong enough for him to be healed. Izora encouraged this belief. Time and lime again, Gaile watched Wilson's disappointment when there was no healing. Finally at the age of fifteen, Wilson said to Gaile that he guessed God just wanted him the way he was. This too only increased Gaile's confusion.
27. Adding to Gaile's confusion was the fact that her Methodist father went along completely with their mother and enforced all the strict Pentecostal rules until the children were older. Then one day Jewell snuck Gaile and Carolyn to a movie while swearing them to secrecy. Terrified of hell but with a child's curiosity and longing to be tike other children; Gaile went to see "Bambi". The joy of that experience was followed by weeks of fearing that she would die and go to hell because she went to the movies.
28. Years later when the church adopted some changes to hold on to membership. Guile watched with horror as from one day to the next, all the adult women suddenly had short hair. For years they bad all rolled their long tresses \OD\ orange juice cans and now suddenly short hair was allowed. Gaile, believed all these women were doomed. Even more confusing, Izora came home with a permanent. Gaile was terrified that her mother would go to hell.
29. In terms of play, the Pentecostal faith isolated Gaile from school classmates because of the inflexible rules that forbade short sleeves, short hair, movies, TV, gym clothes, the state fair, fingernail polish, pants and other normal activities. Because of the historic abuses in the Pentecostal faith, a spiritual healing movement has grown in recent years to help people like Gaile who were emotionally damaged by the old legalistic teachings. But that intervention and . . . the subsequent changes in the church did not happen in time to salvage Gaile's confusion during her developing years.
30. The changes in the church that Gaile and her mother attended, Abundant Life Pentecostal, came with the arrival of Pastor Jimmy Greer during Gaile's teen years. During this time, Gaile's sister Carolyn literally became part of the Greer family providing Carolyn a safe haven from Izora and Jewell who let her go because it was a minister's home. Gaile was allowed to visit but was not welcomed as a part of the pastor's family as Carolyn was, and so Gaile was left to continue her role with Izora and Jewell. Gaile felt trapped in her home with no escape.
GAILE'S CHILDHOOD
31. Gaile was the second child born to Izora and Jewell. The first was her brother Wilson who was born in January of 1951 and was only eighteen months older than Gaile. Her younger sister Carolyn was born fifteen months after Gaile so all three children were born over a period of three years. Wilson was born with cerebral palsy. Izora told others that Wilson had a stillborn twin whose umbilical cord was wrapped around Wilson's neck at birth. Although there are no records to document Izora's version of the birth, Izora's tales became family legend.
32. Although the middle child, Gaile assumed the role of the older child due to her brother's disabilities. Already unstable, the marriage of Izora and Jewell was deeply affected emotionally and financially by Wilson's disabilities. Izora believed his disabilities were her fault. Jewell's mother convinced her Wilson wasn't normal because during the pregnancy Izora raised her arras above her head while hanging curtains.
33. Gaile's early childhood was initially defined by the family's denial of Wilson's problems and then by the subsequent attention given to his-problems. Wilson's needs left Izora unable to care for all three children. Strangely, Izora continued to babysit eight to ten children daily and without a license essentially ran a day care. As a result, Izora ignored the development and well-being of her own children.
34 Jewell was disappointed that his only son was disabled and largely ignored Wilson's existence unless Izora goaded him to beat Wilson. Responding to family pressure, Jewell finally accepted that his son had problems and needed special care. The family moved to Memphis when Gaile was four years old. In Memphis, Wilson could receive the care he needed at the Shriners School.
35. From infancy, Gaile was shuttled between her own family and that of relatives who cared for her deeply but could not offer her the daily, long-term assistance she needed during her developmental stages. Gaile spent two days every two weeks with her Uncle Nicky, Aunt Nanny and cousins Mary and Thelma. Unfortunately, this time only added to the confusion that was pervasive during Gaile's childhood. Nicky and Nanny's lives were lived in direct opposition to the environment in Gaile's own home and while she was loved by her uncle and aunt, they could not compensate for the "thought reform," she was receiving from her parents and her church. Gaile was encouraged by her uncle and aunt to lie to Izora and Jewell about going to the Presbyterian church and to not talk about the things she experienced with them that they feared would upset her parents.
36. To add to Gaile's uncertainty, Izora held the removal of this special time with her aunt and uncle and cousins over her head, requiring her to perform unreasonable chores with the threat of losing that break from Izora and Jewell. Gaile believed that those breaks with Uncle Nicky and Aunt Nanny were the only thing that saved her during childhood and she began to clean obsessively and perfectly to get that reward.
37. Izora also required Gaile to help her care for eight to ten other children she babysat, in addition to her brother Wilson. In contrast, Gaile's sister Carolyn dealt with the stress of their home by withdrawing and staying out of the chaos as much as possible. Early on, Carolyn lived in her own world There was a period when Gaile and Carolyn were young children when they were closer. But as Gaile became more of a "yes" person to her parents, Carolyn used invisibility as a way to say no to Izora and Jewell. Whereas Gaile was drawn into and used by her mother as a buffer between mother and lather, Carolyn quietly avoided family conflict and ultimately spent most of her adolescence with pastor Jimmy Greer and his family. . Quite the opposite, Gaile catered to her father's and mother's wishes.
38. Gaile was known to be a good child who did not get into trouble in. school, did her lessons, and was quiet in class. Her conduct was excellent and she. did not cheat, steal or lie in [ILLEGIBLE TEXT] or away from home. She allowed teachers and others to call her Marcia even though she was known a; home as Gaile. She did not participate in extracurricular activities and had few friends due to her religion and homelife.
39. Gaile adored her disabled brother. While others placed limits on what Wilson could do, Gaile would try to show him some fun. She took him out in the snow and tried to play games with him. She always believed he could do more than he was allowed to do. Gaile always wanted to play ball like the boys and she would show Wilson how to bat a ball.
40. Wilson was a sweet boy who adored Gaile as well. She spent all her spare time with him and tried to treat him as though he was like her. Wilson received beatings in spite of having' cerebral palsy. Neither parent could understand his inability to comply with them and no more spared the rod with him than with Gaile and Carolyn. When Wilson was older, a school teacher told Gaile that she should tell her parents that Wilson would be eligible for Social Security disability. Gaile went and got the applications but Jewell refused to sign them saying that it was just welfare. Gaile put the packet together and Jewell had a fit. Gaile's cousin Thelma: who became a teacher and then a superintendent of schools, had to explain to Jewell that disability payments were not the same as welfare. Jewell finally relented.
41. Because of her Pentecostal faith, Gaile was not allowed to swim or watch boys-who were swimming, go to movies or participate in gym-As she grew, she came to love athletic Sports but was net allowed to play. The girls in her church stood against the gym walls in their dresses and watched the other children play. .
42. Gaile rarely had a friend come to her house because, of her father's drinking and his scary behavior toward other boys and girls. She and her one girlfriend would plan the friend's visits around her father's drinking days. Her opportunities for developing social skills were stunted by the isolation she experienced because of her religion and her home life. Gaile was becoming the submissive; approval-seeking child her parents created with their (united world view
43. From the ages of five to twelve Gaile was sexually molested by her paternal Uncle Marshall. Gaile tried to tell her mother what Uncle Marshall was doing but Izora ignored lier. Initially, Gaile loved her Uncle Marshall because he showed her attention. Gaile would sit on the bales of hay at this farm and Watch him drive his tractor hoping he would give her a ride. Uncle Marshall told her that she was named Marcia after him and she believed him. He also told her that this was why she had to let him touch her.
44. Marshall made Gaile feel powerless and helpless. He pinned her to the bales of hay and began by slipping his hands into her pants. She was five years old. As Gaile grew older, Marshall would take her on the tractor and hold her tightly against him as he rubbed himself against her. When Gaile begged not to go to the farm, she was forced to go anyway.
45. Eventually Marshall tried to penetrate her and although he failed, she was frightened enough to tell her mother. Izora did not want Jewell to find out because she was afraid Jewell would kill Marshall. . So she protected Marshall instead of her child. Gaile never received any intervention or treatment or even recognition and validation that she had been molested. Finally by the age of twelve Gaile learned to avoid Uncle Marshall or going to his house. But for years afterward at family gatherings, Marshall would try to corner her and touch her. He would insist that she touch him and make him feel good. Gaile would make feeble attempts to stop him telling him that her "daddy keeps his covered."
46. Throughout her early years Marshall would tell Gaile how much he loved her and her confusion grew. From a young age Gaile was asking herself both in regard to her father's drinking and violence and Uncle Marshall's sexual assaults, "what did I do?" Gaile began to run into the house during their visits and scrub herself in the shower. She would cry and beg her mother that she wanted to go home bet Izora always acted like everything was fine.
47. Gaile also experienced the pain of being beaten with a belt buckle by her drunk and enraged [ILLEGIBLE TEXT] grandfather. Gaile loved to visit her [ILLEGIBLE TEXT] grandmother who would grab. Gaile by the hands and dance around the room with her. As was the pattern in this family, the grandmother called Izora and Jewell and told them that Gaile needed to stay with them for another week because they were enjoying her so much. In truth, they wanted to wait until her bruises had healed. This was yet another example to Gaile of the powerlessness and helplessness of women and the confusion of their willingness to protect the abuses.
48. Aside from her Uncle Nicky, the only other healthy adult male in Gaile's life-was married to Gaile's cousin Mary, Uncle John. As a child, Gaile loved and admired Uncle John, a school principal, who loved Gaile and treated her with respect. Uncle John's mother Gertie was also special to Gaile. Gaile found relief from her strife filled home when she visited these relatives. But Uncle John too had an affair and divorced Gaile's cousin Mary. Gaile was again devastated. This particular behavior by men she loved and whose approval she sought, seemed. to leave her consistently disappointed and hurt.
ADOLESCENCE
49. Gaile was growing into a young woman with no sense of self-worth or independent thought She was submissive, approval-seeking and easily manipulated by her mother to cover up her mother's stealing and lying from her father. Gaile's mother continued to force her to sit up with her at night to wait for her father to return home drunk. Izora was more confident that Jewell would not hit her if Gaile was present So Gaile continued to suffer in the middle of her parents' conflicts. Gaile's father would yell at her to go to bed and Izora would insist that she stay.
50. In her early adolescence, Gaile was cleaning house one day when Jewell and Izora had left her in charge. She and Carolyn were going through drawers and discovered some letters in her mother's sock drawer. Quietly, she and Carolyn sat in the floor and read each letter only to learn that their mother had been married to someone else before marrying Jewell. Afraid to confront her parents. Gaile asked her Uncle Nicky who told her that story would have to come from her parents. She and Carolyn ultimately confronted Izora who lied about the marriage (with Jewell covering for her) in spite of the letters conforming it. As a result, Gaile and Carolyn worried that they might have a brother or sister somewhere. Gaile could not trust her mother's Answers. A boy at school, Steve Johnson, had teased Gaile that they might be cousins. Gaile always thought that was odd but it turned out that Izora's first husband was Sieve's uncle. Uncle Nicky had assisted his sister TO having the marriage annulled since the Pentecostal faith forbade divorce.
51. Also during her adolescence, Gaile discovered that her father was having an affair. Gaile was hurt and disappointed because in spite of her father's physical violence, she was very attached to her abuses. Emotionally, she bad become a substitute wife and had been given the. adult role of mediating between her patents. Without his knowledge, a teenage. Gaile bad begun to follow her father and observe him with this other woman. Finally Gaile confronted Jewell and he confessed to the affair. Gaile had power for the first time and threatened to tell hex mother in order to get Jewell to give up the relationship. Jewell complied but Gaile never recovered from the shock and hurt of her father's betrayal. After all, much of her childhood she had been the buffer between these two authoritarian figures and the introduction of this third person was confusing. Because of her Pentecostal faith, Gaile also feared her father's damnation to hell.
52. During high school, Gaile continued to be a good student and her behavior was compliant Gaile's dating years were unhappy. She was afraid to get involved with anyone because of her father. One boyfriend had to slip in and out of the house so as to avoid her father. Girlfriends had to do the same and so relationships were brief.
53. Even after graduating from high school while Gaile was working and living at home, Gaile could barely tolerate the worsening restrictions on her life. For two or three days Gaile sought relief at the home of a nurse who befriended her when Izora was in the-hospital for surgery. Gaile was gone only for a few days and it was upon returning home that her father strip searched her, a grown young woman to search for drug marks. Soon after this incident, Gaile moved into a small apartment of her own and experienced freedom for the first time.
54. Gaile entered adulthood with no identity of her own, an emotional fragility that she covered with an attempt at perfection, and a consuming need to be loved. Her developing years would leave her vulnerable and unable to cope when faced with accumulating stress. Her lack of understanding about freedom and independence led Gaile to create a false self fueled by aspirations of perfect behavior and a perfect life. This superficial appearance was exhausting to maintain over time and would eventually wear Gaile down. . . .
MARRIED LIFE
55. After high school, Gaile moved out on her own and went to work for LeBonheur Hospital. She was twenty years old when she met Ron Owens who had completed duty in the Air Force. Ran too had come from a troubled family. He, like Gaile, had survived by getting away from his family as soon as he was old enough and able.
56. Gaile was grateful that Ron wanted to date hen She felt ugly and unattractive most of her life even though this was not the case. Gaile didn't believe she was worth anything so she couldn't believe that he showed an interest in her. She was infatuated with Ron and thought he walked on water: She had a dream of having an "All American Family." Gaile was, in fact, attractive, and with the help of her aunt and uncle, who were relatively affluent and well-educated, Gaile had become a respectable, bard-working young woman. Ron and Gaile seemed a perfect match to friends and co-workers, although Jewell was still mad at Gaile for leaving home and refused to attend the wedding. Gaile was twenty years old when she married Ron Owens.
57. In a step away from the more rigid and rule bound religions of her childhood, Gaile married Ron in Uncle Nicky's Presbyterian church in October of 1971. Gaile realized on her wedding night the impact that her years in the Pentecostal church had had as she simply did not know what to do with the fear and pain of intercourse. First, Gaile did not realize that the lights would be on. She thought sex, whatever it was, only occurred in darkness. Ron's eagerness to consummate the marriage frightened her and being exposed in the light made her ashamed. When Gaile bled and found sex to be painful on their wedding night, Ron threatened that he would find someone who was not so frigid to have sex with. Then, when Ron again attempted sex the next morning, Gaile thought he was crazy — she thought sex was only supposed to occur at night. Thus, from the beginning, their sexual relationship was troubled and unsatisfying to both. Unfortunately, neither had the maturity nor the skills to know how to reconcile this problem.
58. Gaile was terrified to leant she was pregnant in 1972. She had not wanted children because of her fears about having a child like Wilson. Ron was also unhappy about a pregnancy that be felt they could not afford. His plans were to enter school and his goal was financial ability but Ron and Gaile presented a happy face to the outside world and did not let on that pregnancy was stressful. Behind the scenes, Gaile's pregnancy, "Ron's classes and their-financial situation were taking a toll Stephen was born in January 1973.
59. While Ron was going to school and working at LeBonheur Hospital, Gaile worked as a receptionist for Dr. Margaret Halle. It was while working for Dr. Halle that Gaile. began to use free samples and prescriptions she got in the office to control her weight. One doctor gave her Elavil for depression as she continued to put up a front to family and friends that her married and work life was happy. Gaile received no empathy or support from Ron and was left to deal with her growing problems on her own.
60. Unfortunately, as her problems grew, Gaile began to look for other ways to make Ron happy. After only two years of marriage, Gaile had begun to suspect that Ron was having an affair. Gaile, who was desperate for Ron's love and approval, began using medications to improve her looks and attractiveness to him. However, Gaile's judgment and insight were non existent. She reverted to an early childhood behavior learned at her mother's side, a way to ease the stress and hurt, to steal. Gaile believed that by stealing additional money from Dr. Halle she would make Ron happy and relieve some of the worry about finances.
61. When Gaile was caught stealing, she turned in desperation to Izora for a loan to repay the money she had taken from Dr. Halle. Izora required her to clean her house and babysit the many children she kept to pay her back which Gaile did unfailingly. Unfortunately, being in debt to her mother put Gaile right back into the environment she fought so hard to leave.
62. Ron's approval was all Gaile could think about as she could summon no other options for making her marriage a happy one. Perfection in all other ways but sex was not working. Gaile tried to keep a perfectly clean house because Ron was a stickler for cleanliness. She ironed all their clothes. Gaile also believed she had to have the extra energy boost that came with diet pills. She began to build a tolerance to the pills and was taking as many as three amphetamines a day. She would eventually become exhausted but could not rest.
63. While Ron was attending school and working, Gaile was receiving less and less attention and she had a new baby to care for and love. In addition, Ron's demands for sex grew more frequent and violent during this time. Gaile was unraveling behind closed doors and simply managing a smile at home, church and work as she tried to be a good wife, mother and employee. The pressure was unrelenting as Ron forced sex upon her and as she failed to please. As is typical in an unbalanced family system, no one, including Gaile herself, was making any connection between her childhood molestation by hex uncle and sexual humiliation by her father, her church teachings and the dramatic toll these events had taken on Gaile and her marriage.
64. Gaile had tried to get Ron to join the church, but he called it "stupid." Later, he joined Abundant Life where Gaile continued to attend and be brainwashed by the "rules" related to male dominance.
65. For the next ten years, diet pills (amphetamines) would help Gaile to keep her weight off to please Ron, and valium would numb her to his sexual demands. The amphetamines made her feel like a supermom and superwife who could do anything. They affected her sleep, and so Gaile ran on raw nervous energy. The drugs were not prescribed, but Gaile continued to have access to drug samples from the doctor's offices where she worked.
66. Ron completed his associates degree in 1974 and just as he had falsely claimed to have been shot in Vietnam, he also falsely claimed a bachelors degree in his application for a nursing position at the hospital. As a result of Ron's dishonesty, he was placed on probation at the hospital. While Ron and Gaile made great efforts to leave their troubled childhoods behind and to create a normal life, they made costly and stressful mistakes.
67. At times, because of the stress, Ron lost his temper with Gaile and hit her. Ron's continued demands for non-traditional sex made Gaile feel inadequate as a wife. Gaile did not know how to express her needs to Ron and was not truthful with him in order to gain his approval. Making Ron happy was central to her existence. She pretended everything was alright when it was not. Gaile had to protect the image of a good marriage. The truth of her life and her underlying emotions were restrained at great cost.
68. In 1975, Gaile became pregnant with hex second son, Brian. Prior to his birth, Gaile, Ron and Steven went out to dinner. Gaile was scheduled for a c-section the following day. Gaile was in a lot of discomfort and did not realize she was going into labor. Despite her discomfort; Ron insisted on sex that night, He became angry and frustrated with her and kept trying to penetrate her. When Gaile awoke the following morning she was bleeding and woke Ron to drive her to. the hospital. She pretended as though nothing bad happened although hospital records show that she had a partial abruptio placenta when she arrived at the hospital.
69. Following Brian's birth, Gaile resumed her use of diet pills and valium to lose weight Among their many-problems, Gaile's weight gain played a significant role and she was willing to do anything to get the weight off and please Ron. Also, after Brian's was born, Ron's demands for sex and use of violence during sex increased. Ron began using objects to penetrate Gaile which made sex even more painful and difficult. In addition to Ron's increasing demands and use of violence during sex, Gaile had during that year again suspected that Ron had a girlfriend. Gaile believed that their financial stress and her weight was driving him to commit adultery.
70. Gaile again turned to stealing in hopes that she could please Ron and better cope with her suspicions of his unfaithfulness, his increased sexual demands and violence after Brian's birth. Gaile was working for Dr. Paul Williams at Memphis Orthopedic Associates. Over the course of ten months, Gaile forged eight of the doctor's checks for herself and spent the money on Ron, her sons, her sister, and others in an effort to please them. Once again, Gaile was caught, but this time, the doctors pressed charges.
71. In early 1978, Gaile was arrested and charged for the forgeries at Memphis Orthopedic Associates. Pastor Greer helped her find an attorney and contacted psychiatrist Dr. Max West on her behalf. Ron refused to offer any help or support to Gaile and refused to go see Dr. West with her. Gaile was held at the Shelby County Jail for approximately sixty days pending the disposition of the charges. Gaile ultimately pleaded guilty, and was sentenced to five years probation and ordered to make restitution.
72. Gaile bad no history of illegal activities in her childhood and adolescence and these embezzlements at her jobs were the only times she had broken the law. Over the next two years, Gaile worked and mothered her children, attended church and worked to pay the restitution she owed the doctors. Trying to redeem herself and pushing herself on little sleep and with the aide of amphetamines for energy. Gaile enrolled at Shelby State Community College in 1980 and attended through the winter of 1981. She began anew job with another doctor's office and worked as a medical receptionist until early 1983. Enrolling in summer classes, Gaile continued her efforts to further her education, completing twenty-two semester hours before dropping out.
73. Ron traveled for Baptist Memorial Hospital attending seminars and recruiting nurses. During this time; Ron's behavior with other women at the hospital became an even greater stressor to Gaile. Ron stayed with Gaile because of his boys but he continued his Relationships with other women. At the same time, he insisted on forceful and abusive sex with. Gaile using a wine-bottle and a pot pipe shaped like a penis and testicles to penetrate her. For Gaile it was painful and degrading, but she submitted while begging him to stop. The lack of affection and love which Gaile craved was missing from their relationship. For Gaile, sex with Ron had become marital rape.
74. Ron had a charming and charismatic personality and women at the hospital seemed to flock to him. Sometimes his behavior crossed a line and on one occasion he brought a penis shaped birthday cake to a nurse supervisor at the hospital.
75. Gaile and her sister Carolyn were never close. Carolyn had distanced herself from the family when she went to live with Pastor Greer. Carolyn never had the same role in the family as Gaile and escaped much of the punishment Gaile received from her parents. Carolyn married Joe Hensley in 1981. During their brief marriage, they did not have children.
76. After leaving school in 1981, Gaile gained a tremendous amount of weight She suspected Ron of another affair, and in fact, he was involved with a nurse named Gala Scott.
77. At this point, Ron and Gaile no longer had any sexual relationship at all and while sex was a miserable experience for Gaile, she took Ron's rejection as proof of her worthlessness. By this time, honesty and respect between Gaile and Ron was no longer even a pretense. Ron's disdain for Gaile was no secret and he told her that he stayed with her only because of the children. When she asked him if he could say anything nice about her, he said, "You don't sweat much for a fat person." Despite this, Gaile harbored an enduring hope that Ron would eventually come to love her.
78. In 1983, Gaile was again involved with forging checks at work. It seemed that her overwhelming stress was only relieved by the risk of taking and spending money. Again, Gaile had thrown the money away on gifts for others. She never seemed to benefit from her Wrongdoing except to feel good about giving gifts to others. At this point, Gaile seemed to realize that her pattern of taking money was not only self-defeating but symbolized ether problems that she could not handle. She tried to talk to Ron but he threatened to successfully take the boys from her because of her history of her forgeries. The thought of losing her boys drove-Gaile over the edge emotionally and the fear of that loss consumed her.
79. Gaile was overweight, depressed, and in fear of losing not only Ron but her children. Growing more and more anxious about her situation, her fears were intensified when Ron failed to show up for a dinner with the hoys and called her to say he was staying with Gala Scott, who had had a miscarriage. Over the next few months, Gaile grew increasingly agitated and anxious. She was beginning to hate her image in the mirror and felt a self-loathing over Ron's rejection that she could not control.
80. In late 1984, Gaile, feeling abandoned and alone, followed Ron to the hospital early one morning, suspecting that he was meeting Gala. She found Ron and Gala together in the parking lot Gaile confronted Ron. He called her a "bitch" and ordered her to never follow him again. He slapped her and pushed her into the car. From that moment, Gaile was changed forever. Whatever tenuous threads that had kept her together were broken and her subsequent actions that resulted in Ron's death were set in motion.
81. Gaile felt like a fool and a failure. She had kept everything inside her entire life and had submitted to the will of father, grandfather, uncle, church elders and husband. She was in a state of confusion and despair.
ASSESSMENT
82. Children are basically powerless in the face of a chaotic and combative household. They cannot cure a drunk, muscle themselves away from physical and sexual abuse, or make choices about their finances, the neighborhoods in which they live or the churches which they attend. Therefore, if we hold them to adult standards, they can never measure up. They also do not have the language to describe the very adult abuses they face and so they demonstrate what is happening through their behavior, sometimes for many years and into adulthood.
83. As adults, children who have been molested, beaten, manipulated, and controlled find a way to tell: their story through compulsive behaviors, like alcoholism, drugs, stealing, lying, etc., that they developed as children as a means of survival. in fact these are among the many coping mechanisms and survival skills that children engage-in as a way of soothing themselves — usually either overreacting or becoming emotionally constricted, sometimes switching between both behaviors. These behaviors do not typically comply with societal expectations and can result in. serious legal consequences. But compulsively acting out. the pain and rejection of a combative childhood is consistent not only with the behavior of children in war Turn countries, but that of some soldiers and others who have experienced trauma. Surviving combat in the home does not result in medals of honor or the gratitude of an appreciative nation. One marches into adulthood alone bearing scars without recognition of the courage required to survive.
84. Young girls, who watch their mothers beaten only to forgive and go on as though nothing happened, are believed to be at higher risk than others to marry into a relationship that is abusive. Girls who are molested are at higher risk to marry a sexually abusive man. This repetitive cycle is the way adults tell the story of what happened to them as a child when they simply did not have the language to express the mystery of abuse.
85. Add to that, the "thought reform" and "legalism" of the Pentecostal faith tells girls that they have no worth, they are under the control of men, and they are to submit and to bide, their bodies. Yet at the same time, some Pentecostal children live in homes that break all the church's rules behind closed doors. Lying, stealing, drinking, sex, and violence are present twenty four hours a day until another Sunday at church where again the child hears that one will be condemned to a hell for these behaviors, and that you must honor your parents no matter what they do.
86. The website "Stop Spiritual Abuse," focuses on the issue of spiritual abuse and has a secondary focus on the United Pentecostal Church in particular (www.spiritualabuse.org). Among hundreds of books on spiritual abuse and rural religions can be found "God's Peculiar People," by Elaine Lawless, Ph.D., who is a professor of English and Women Studies at the. Department of Religious Studies, University of Missouri. The Pentecostal faith. takes its cues from scripture that describes Gad's In peculiar, people.-This description of "God's peculiar people". is part of the Pentecostal image, along with legalism and thought-reform that keep members rule-bound and living in fear
87. It is impossible in these cases to point to one life event, one incident, one moment in time, and say with confidence that this is why someone took a life, it is me accumulation of stressful factors over a lifetime that contribute to a breakdown of functioning. Some people are simply more resilient to stress than others. Some seem to enter the world with the ability to bounce back form almost anything — an unexplained resilience. Yet those people will share that they have not completely escaped the pain and agony of childhood adversity and are more likely to be treated for anxiety and depression, more-likely to be at risk for legal problems, more susceptible to substance abuse and other damaging behaviors. A closer look at resilience lends a more specific and detailed understanding of the difference it makes in a child's life.
88. Studies about resilience help us to understand what is necessary in a home to fill a child with enough "bounce back" to face adversity and what is lacking in homes that produce a child whose resilience ultimately breaks down. One of the foremost experts in this area is Dr. Edith Grotberg, Ph.D. (A Guide to Promoting Resilience in children: Strengthening the Human Spirit," presented at the International Resilience Project, 1993). Dr. Grotberg has studied, researched and written about the elements that must exist for resilience to develop in a child
89. Those elements are summarized in the table below:
The two visuals that follow, along with the Accumulation of Risk Factors and The Psychological Battering of Children included below, axe typical of a visual aid that would be given, to a jury at trial or provided to a judge in an evidentiary hearing. They meet with clinical. social work standards for compiling information from the Biopsychosocial Assessment for presentation in court ID my review of the records, demonstratives like these were never used on Gaile's behalf.
The Development of Resilience in Childhood
1. Unconditional physical and emotional love and verbal affection
2. Using soothing words to calm and comfort and teach a child to calm Himself
3. Enforcing rules without belittling, harming or rejecting
4. Modeling behavior that communicates confidence, optimism and results
5. Praise for accomplishments
6. Encourage to be independent
7. Label feelings and help child to recognize feelings
8. Use language that helps a child face adversity
9. Preparation for adverse situations
10. Teach how to problem-solve and to reconcile
11. Provide comfort and encouragement in stressful situations
12 Provide a stable environment
13. Help to manage feelings and impulses
90. None of these elements were present in Gaile's home.
91. In addition, Dr. Grotberg has described the elements of homes that fail to produce resilience in children. Those elements are summarized in the table below:
Homes That Fail to Produce Resilient Children
1. Lack of guidance and mental health intervention
Elements present in Gaile's home
2. Divorce and separationfn_
3. Multiple moves
4. Abusefn_
5. Abandonmentfn_
6. Homelessness
7. Disabled family memberfn_
8. Immigrant status
9. Lack of role modelsfn_
10. Grows up witnessing violencefn_
11. Lack of consistent care-givingfn_
12. Inability to trustfn_
13. Wony about violence in the homefn_
14. Impaired cognitive functioningfn_
15. Inability to deal with aggressive feelingsfn_
16. Repression of feelingsfn_
17. Sense of helplessnessfn_
18. Poor problem-solving skillsfn_
92. In examining the history of Gaile Owens, it is significant that there was an accumulation of factors that prevented hex from developing resilience and placed her at risk to one day succumb to her past and lose at her efforts to overcome the wounds in her childhood. Gaile was programmed from birth to comply, to ignore her own needs, to bend to the will of parents, church, husband with the eternal unrest of hell ever present
93. Gaile's lack of resilience and inability to respond to life in an independent, secure, and confident manner led her to engage in acts that were completely inconsistent with her life as a child, adolescent, wife and mother. Gaile had no history of violence, and the only instances of . lying or stealing as a child were to comply with her mother's wishes. After leaving her parents' home, there is no indication that Gaile ever lied or stole until the weight of her sense of powerlessness and helplessness overwhelmed her. It was only then that she sought relief by spending stolen money, not on herself but on those she loved and whose attention she craved.
94. The following table summarizes the accumulation of risk factors in Gaile Owens's life:
Accumulation of Risk Factors For Gaile Owens
1. Born to alcoholic father
2. Born to violent father
3. Born to mother who used her as a buffer to father
4. Born to parents who exposed her to Pentecostal faith, legalism, and "thought reform"
5. Born into home and church with fear of damnation and lack of joy
6. Born and raised in a religion that belittled and demeaned females
7. Born to religion that taught women submission to men
8. Beaten and abused by father, mother and grandfather
9. Sexually abused by uncle
10. Isolated from opportunities to develop independence and identity
11. Isolated from opportunities to develop social skills and healthy relationships
12. Isolated from opportunities to develop resilience to face rejection without suicidal or homicidal feelings
13. Lack of resilience to deal with affairs of father and other male relatives who were highly valued.
14. Lack of resilience to deal with affairs of husband and rejection by husband
15. Use of self-medication to cope with stress of weight, abuse, marriage
16. Embezzlement charges leading to additional pressures and stress
17. Threat of loss of children
18. Lack of long-term and consistent intervention and treatment for abuse, marriage, substances
95. Even the healthiest of individuals begin to show signs of wear and tear upon the accumulation of three to four of the major stressors identified above Life teaches that no one "escapes adversity and that one roust be resilient in order to face the inevitable bad moments in life. But the strongest among us can point to signs of the impact of too much stress over time. Concentration, memory, job quality, parenting skills, stability of mood and many other states begin to be affected when there is overwhelming stress and too little relief.
96. Dr. John Bowlby, M.D., a psychiatrist and the "father" of attachment theory (Bowlby, J., Attachment and Loss, Vol. I, Basic Books, New York, 1969 and Attachment and Loss, Vol. II, Basic Books, New York, 1973), was the consummate researcher and writer on attachment and loss. He wrote eloquently about the impact of rejection on those who are never taught about facing adversity in life and those who grow up in "unsettled homes." Dr. Bowlby found that for those who have not been taught to deal with rejection, there is a painful physiological reaction that is as though they have been stabbed multiple times by a knife or burned over their entire bodies. Whereas most of us experience "blues," or "heartache," at rejection by a loved one, those who were somehow left without the confidence that the pain will pass can become suicidal or homicidal or both.
97. Thus it seems was the case with Gaile Owens. Even as a young woman, Gaile's discovery of her father's affair gave an early warning that her response to loss was not normal. She followed him, watched him, confronted him constantly, and then threatened him with exposure. She bad suffered at his hands and had submitted to his will, yet she loved him and her shock and disappointment was way out of proportion to what one would expect from most teens.
98. Gaile also suffered emotional neglect and psychological battering at the hands of her parents and ultimately, her husband ROIL Dr. James Garbarino, Ph.D. has written and researched thoroughly the behaviors of parents who emotionally neglect their children. One of the most difficult issues to define in family court is the meaning of emotional neglect. In his book, "The Psychological Battering of Children," Dr. Garbarino offers a model that helps in "understanding Gaile and her parents and the emotionally neglect she endured (Garbarino, James, Ph.D., The Psychological Battering of Children, Jossey-Bass Publishers, San Francisco, 1986). Emotional neglect, as a form of abuse, does not include the physical but only the intrapsychic. Dr. Garbarino and other researchers in emotional abuse and neglect believe that the threat of harm can be just as powerful as actual physical blows.
99. The table below contains examples of the psychological battering of Gaile Owens as they fit into the categories of Dr. Garbarino's framework:
The Psychological Battering of Gaile Owens
1. Rejection-parent does not acknowledge the value and worth of the child
a. Izora and Jewell did not demonstrate affection to Gaile, Carolyn and Wilson.
b. Through her beliefs, Izora denied the worth of a female child.
c. Izora modeled her own lack of self-worth by clinging to a faith that was demeaning to women.
d. Izora set Gaile up to be punished by Jewell.
e. Izora protected Gaile's sexual abuser, Uncle Marshall, rather than defending her.
2. Isolation-parent neglects opportunities for child to develop relationships and. positive experiences that enhance self-esteem and build resilience
a. Jewell kept shotgun at door scaring any potential friends.
b. Gaile's girlfriends had to plan visits around Jewell's drinking.
c The Pentecostal church forbade Gaile's participation in sports.
d. Clothing options set Gaile apart from her friends.
e. Isolation kept Gaile childlike and immature inconsistent with her age.
3. Terrorism-parents expose children to frightening experiences that are non-physical
a. Jewell's shotgun was a reminder of consequences of disobedience.
b. The threat of harm was ever present in Gaile's mind as a result of prior beatings.
c. The threat of harm was ever present in Gaile's mind as a result of sexual abuse.
d. Gaile felt helpless and powerless as a result of seeing her abuser protected.
e. Gaile witnessed the beating of mother and sister and brother.
f. Gaile saw Jewell hold a knife to her mother's throat.
4. Ignoring-parent fails to recognize and respond to emotional needs of child
a. Jewell ignored the special needs of Gaile's beloved brother Wilson.
b. Izora put the needs of the children she babysat ahead of her own children.
c. Izora ignored Gaile's plea for rescue from her sexually abusive uncle.
d. Jewell and Izora created an environment that resulted in a lack of resilience.
e. Jewell and Izora ignored the individuality of each child by programming them to meet the standards of the Pentecostal faith.
5. Corruption-parent mis-socializes the child by engaging in negative and illegal activities
a. Izora lied to Jewell and taught Gaile to back her up.
b. Izora stole from Jewell and blamed Gaile.
c. Izora encouraged Gaile to lie to and steal from Jewell when he was drunk.
d. Izora dismissed the criminal behavior of Uncle Marshall who sexually abused Gaile.
e. Izora demonstrated to Gaile that women have no options and must stay with abusive men and submit.
100. Importantly, Gaile not only suffered as a result of her parents' conduct and her home environment, but also Gaile suffered at the hands of her husband, who was, like her father, mother, and her grandfather, physically abusive; like her uncle, sexually abusive; and like both of her parents, psychologically and verbally abusive and emotionally neglectful. Gaile was a typical battered woman — having been raised to endure abuse and neglect as a child and then married a man who also abused her.
101. The best known resource for battered women remains the studies and writings of Dr Lenore Walker, Ph.D. (Walker; Lenore. PhD, The Battered Woman, Harper and Row, New York, 1979); although many others have Researched and written on this subject. Dr. "Walker observed that while all children who witness the abuse of a father toward a mother will not necessarily grow up to be abusers or victims, those who do were typically raised in households where they witnessed that behavior.
102. In Dr. Walker's studies and other more recent studies, the criteria for Battered Woman Syndrome includes a cluster of behaviors most of which are incredibly consistent with Gaile's behavior and experiences:
a. Posttraumatic stress and re-experiencing the trauma
b. High-levels of anxiety and arousal
c. Emotional numbing, avoidance behaviors, and depression
d. Disrupted interpersonal relationships
e. Distorted body image and physical illnesses
f. Sexual issues, including feelings of guilt, shame, and jealousy
Using these criteria, based on the information that I have gleaned from reviewing the records and my extensive interviews with Ms. Owens, I believe that Ms. Owens was in fact a battered woman and suffered from what was known at the time as "Battered Woman's Syndrome." Today, battered women are diagnosed with Post-Traumatic Stress Disorder. Ms. Owens meets the diagnostic criteria for Post-Traumatic Stress Disorder, in Remission. If I had been called to testify in 1986, I would have testified to this opinion.
103. For Gaile, the combination of religious dogma and influence that demanded the submission of women, a violent and abusive father, an abusive uncle, an abusive grandfather, a mother who stayed in her marriage and failed to protect her children from the abusers, made life as a female demeaning and shameful. As a result, Gaile spent her energy trying to please, seeking approval, fearing hell and damnation, and craving love. When all these efforts failed, Gaile sought relief from stress by committing non-violent illegal acts on three occasions.
104. According to numerous studies conducted by the United States Department of Justice, children of violence and neglect are at higher risk than others to end up in juvenile or adult incarceration. Awarded the American Association for the Advancement of Science prize. for outstanding behavioral research, Dr. Cathy Spate Widom, Ph.D., has been considered since the early [ILLEGIBLE TEXT] to be one of the most reliable experts on "the cycle of violence" and its relationship to firmly violence and neglect. While one cannot predict exactly what kind of trouble children will engage in as juveniles and adults, Dr. Widom, who conducted the research funded by both the United States Department of Justice and the Institute of Juvenile Justice, has consistently demonstrated the devastation to children of violence and neglect (Widom, Cathy Spatz, Ph.D., Child Abuse, Neglect, and Violent Criminal Behavior, Criminology, Vol. 27, No. 2, 1989). Subsequent repeated studies by Dr. Widom have shown consistent results (Widom, Cathy Spatz, Ph.D., Criminal Consequences of Childhood Sexual Victimization, Child Abuse and Neglect, Vol. 18(4), April, 1994). Dr. Judith Herman, MD (Herman, Judith, MD, Trauma and Recovery, Basic Books, New York, 1992), has also written extensively on the impact of trauma on children and its effects in adulthood. Her book is still considered among the best resources for understanding the behaviors resulting from trauma.
105. Dr. James Garbarino, Ph.D., mentioned earlier for his work on the psychological abuse of children, has also written a compelling book comparing children of abuse to children in war-torn countries (Garbarino, James, Ph.D., No Place to Be a Child, Lexington Books, Massachusetts, 1991). In that work, he compares children who live in combative, chaotic and confusing households to those who live with the violence and unpredictability of war.
106. In Gaile's case, one must try to distinguish between the consequences of childhood trauma and abuse including sexual abuse, battered women's syndrome, the impact of church dogma that demeans women, psychological abuse, and the impact of neglect. The accumulation over time from childhood to adulthood of all these conditions in Gaile's life seem to have broken down what resilience Gaile fought for with no help from her parents.
107. Gaile. wanted to escape her mother's life, to create a life of her own, to have a stable marriage and to be a good mother. Her coping skills revolved around creating an image of perfection that was not real and was not possible. Gaile was unable to meet her own emotional needs or to express her feelings. She never learned to do these things. As an adult, these accumulated traumas caused Gaile to ride the roller coaster of pills to keep her energy up and pills to keep her relaxed. Substance use is a well known coping mechanism in reaction to trauma (van der Kolk Bessel, Ph.D., Psychological Trauma, American Psychiatric Press, Washington, DC; 1987).
108. Gaile loved her sons so much that the thought of losing them created a panic and fear that was insurmountable and obscured her already impaired judgment. Ron's affairs were rejection enough but the threatened loss of her boys after her years of faith, dedication, and submission to physical and sexual abuse, left Gaile in a state where she could no longer cope. Guile succumbed to her feelings of overwhelming helplessness. Unable to commit au act of violence even in response to years of accumulated abuse, Gaile sought and found others who could initiate a process that she could not control resulting in the death of her husband.
109. In my hours of interviews with Gaile, I found a reflective and thoughtful woman whose letters and photographs from her sons sustain her. She expresses what appears to me to be a. deep remorse and understanding of the pain she has caused and the loss to her sons of their. father. Gaile accepts responsibility for her actions and makes no excuses for them.
110. After two decades of work on capital cases, I am astounded that Ms. Owens is on death row. The trial lawyers' failures in this case are appalling. I have worked with all kinds of capital trial lawyers and mitigation investigators. I can say with certainty that had a competent mitigation investigation been conducted and had competent expert witnesses testified, there is ample reason to believe that Ms. Owens would likely not have been sentenced to death.
Further affiant sayeth not
________________________ Jan Vogelsang
Dated this 22 nd day of July, 2009.
Sworn to and subscribed before me on this the22 nd day of July, 2009.
GENERAL ASSIGNMENT REPORT OF INVESTIGATION
OFFICE Homicide
TIPE REPORT
Criminal/Investigative
REPORT NUMBER
8502172303
DATE OF REPORT
2-26-85
ADDRESS/PHONE
Ronald D. Owens W/M 36
7117 Scepter Dr. Bartlett, TN. 38134 388-0435
COMPLAINT AND/OR PHONE
Marcia G. Owens F/W 32
7117 Scepter Dr. Bartlett, Tn. 38134 388-0435
ADDITIONAL PROPERTY
VALUE
INVESTIGATOR Wray
APPROVED
SUMMARY
2-17-85 Writer arrived on the scene at 7117 Scepter at approximately 2336 hours, and 35 nun photographs were taken of the crime scene by Sgt. W.P. Freeman. Writer began a Crime Scene sketch of the laundry room (south side of house} kitchen and den. Writer observed the rear door to the residence (leading into the laundry room) standing open with a key in the lock with other keys on the ring. Blood splatters were observed on the kitchen floor, on the doorway between den and kitchen, floor of den as well as walls and ceiling. Victim had already been removed to Methodist North in critical condition by Bartlett Fire Department Ambulance. Writer observed the kitchen table appeared to have been shoved toward the south wall and 2 chairs lying on their sides. A pool of blood (1'8" X 2' 1") had saturated the den carpet in front of the fireplace (eastwall) 4'10" from east wall, 9'10" from south wall. Several other blood smears were observed close by. outside the residence, writer preserved several foot prints that had been left in the mud, however, later determined the prints matched the victim's tennis shoes and another pair. of shoes in the residence. The back yard was lit by the use of flood lamps by the Bartlett Fire Department and area checks for evidence, none found. Measurements were taken for Crime Scene drawing. Writer was notified by It. B.J. Bowen at approximately 0245 hours that the victim Ronald D. Ownes had just died at Baptist Central where he had been flown to by Medic Vac Helicopter. Scene secured at approximately 0303 hours.
Writer, Sgt.. W.P. Freeman, Ptlm. D.P. James, and Lt. B.J. Bowen went to the City of Memphis Morgue at approximately 0400 hours, where further photos (SX70 and n/W 35mm) were taken of the victim. Finger-prints were not taken of the victim due to the possibility of evidence being intact on the hands or under the fingernails. The hands had been placed into paper bags at Baptist Central by Ptlm. James after victim's demise.
2-18-85 0600 hours. Writer, Sgt. W.P. Freeman, Lt. B.O. Bowen, and Ptlm. D.P. James returned to 7117 Scepter and searched the surrounding area for evidence. All probable escape routes were checked but no weapon or evidence found.
2-18-85 1000 hours. Writer and Sgt. W.P. Freeman returned to the morgue and spoke with Dr. O.C, Smith. A preliminary exam was performed on the victim with hair samples removed from the hands. No determination on the type weapon could be made without a complete autopsy.
Writer and Sgt. Freeman went to 4190 Oakcrest and spoke with the victim's wife, Marcia Gaile Owens, and requested her to sign autopsy authorization papers which were done. The wife stated she had been at that residence (4190 Oakcrest) Sunday night until approximately 2245 hours, then upon arriving home, found her husband lying in the den, bleeding and unconscious. She stated that she had observed the interior light on in victim's vehicle and keys in the back door. She stated her husband had not gone to Sunday evening services but had been playing golf at Woodstock Country Club, arriving at the church late. He then played basketball at the church and she did not see him again until arriving home at approximately 2300 hours.
Writer and Sgt. W.P. Freeman returned the autopsy papers to the morgue and was advised the autopsy would not be done until the next date. 2-19-85.
Writer and Sgt. W.P. Freeman went to Baptist Central and met with J. McCaleb, Chief of Security who advised that officers could look at property in victim's office. Officers found several cards and notes from a "Gala", found to be Gala Scott and a Dianne Wood. Officers interviewed MsScott at 1123 hours and she verified she had an affair with the victim during 1991 and 1982, but had since-stopped seeing each other romantically She stated they had decided they had no future together. she stated that they both had been married but her marriage dissolved during that period, and they had planned on getting married, however, victim could not leave his hoys. When questioned about jealousy on her ex-husband's part, possibly playing a part in victim's death, she was adamant that he could not have had anything to do with the death as he was about get remarried, had become a Christian, and was very happy. She stated she had no idea who might have wanted to kill victim. She stated she did not know of any employees he had fired that might want to harm him. She stated she did know of financial problems caused by the wife in the past. She also described her (Gala's) and victim's present relationship as friendly.
Officers then spoke with Dianne Wood who stated she had a friendly (but not romantic) relationship with the victim. She stated she had no idea who would want to kill the victim.
2-19-85 1030 hours. Writer and Sgt. Freeman went to 4190 Oakcrest and asked Mrs. Owens for a consent to search the 7117 Scepter address again for possible clues. Signed consent was given and officers went to Scepter address and searched but no other evidence found.
1249 Sgt. Freeman and writer returned to the City Morgue and observed the final stages of the autopsy. Doctor Smith stated wounds to the skull were conclusive of blunt trauma, not "AX TYPE" as previously speculated. Dr. Smith advised cause of death would be ruled as repeated blows to the head with a blunt instrument.
1435 hours. Writer and Sgt.Freeman went to Baptist Central and spoke with Chief McCaleb, and was shown a list of persons dismissed over the past year. None of the persons however had been violent over this dismissal.
2-20-85 0905 hours. Writer and Sgt. Freeman went to 4190 Oakcrest and again interviewed the wife, Gaile Owens, and she recited the same information. The family had attended Sunday Morning Services, and victim left directly from Church and went to play golf at Woodstock Country Club. Victim did not attend Sunday evening services but had arrived at the church at approximately 1900 hours as she had observed victim standing in the vestible. She stated she spoke with the victim briefly after services and that he went to play basketball in the church. She stated she then went to get a bite to eat with her children, then straight to the 4190 Oakcrest address where she visited with her sister and several other people from the church until about 2230 hours.
She advised she and her 2 sons went home and found the car door slightly open and the kitchen door open with her husband lying in the den. She then went next door and phoned police.
Writer spoke with Jim Greer, family's pastor, who stated family had been counseled, and stated Mrs. Owens told him that she and her husband had been talking more openly the past few months. He stated the couple had difficult times in the past but he felt things had been improving.
1002 hours. Writer and Sgt. Freeman went to MPD Violent Crimes Offices and advised Capt. C. Keenan of facts known in the case. He stated he would be glad to assist BPD with manpower if needed. Writer spoke with Sgt. J.D. Douglas and Sgt. B.G. Townsend who advised officers to look for a jealous boyfriend or someone close.
Writer and Sgt. W.P. Freeman went to U.T. Toxicology lab where Crime Scene photos were shown to lab Tech. Paulette Sutton and victim's clothes were turned over to her for analysis. Victim's athletic supporter was checked for semen and none found. While at lab, Writer spoke with Chief Cheatham who advised he had just received a tip from a Bill Gillespie, an inspector with the U.S. Postal Service, that an informant who had assisted him reliably in the past, had related to him that he had knowledge of the murder and had information concerning the same. Lt. Bowen and D.P. James went to 11 Front to interview informant.
1357 hours. Writer was notified to meet him at 11 Front Street to speak with the informant. Writer and Sgt, W.P. Freeman arrived at 1402 hours. Writer and Lt. B.J. Bowen spoke with the informant George James, B/M, 8-10-56, who stated he bad been approached late in December, by the victim's wife, "Gaile", in the area of Second and Keel, and she asked him if he wanted a job. He stated he thought she wanted him to do some type yard work or similar work. She told him to get in the car and rode around . She told him she wanted her husband killed and would pay $10,000. He told her he would need some money to show good faith. He described the woman exactly, her car, (dark blue 2 door) and had her home phone memorized, subject stated that "Gaile" had furnished him with a key to the house and car, a photo of her husband and their home. He stated she had taken him at one point to Leader Federal bank across from a shopping center and withdrew money to give him. She gave him a little over $500.00, showed him their church, the door her husband used to enter and exit the gyro, a field in the rear of the church that could be used as an escape route if he wanted to kill the victim at the church. He stated she told him he coached a basketball team at the church on Tuesday night, got off work around 1545 hours. Subject stated he never intended to carry out the job and was just running a scorn. Writer asked subject when he learned of the murder, and he at first stated Monday morning, but later stated he had meant early Tuesday morning. He stated his woman had told him after she had seen his picture on T.V. and had seen the photo of the victim after Mrs. Owens had given it to him, as she had seen the photo at his home. He also stated his woman had seen the lady known as "Gaile" at his apartment at 867 Mosley 15. He stated he had told Mrs. Owens he did not intend to do the job and told her Bubba Sykes might do it. He then introduced Mrs. Owens to Bubba Sykes. He stated he later sold the keys and photos back to Mrs. Owens for around $51.00. He stated he would be willing to show writer the bank and the church. A meeting was set up for 2000 hours.
2030 hours. Writer and Sgt. W.P. Freeman went to 867 Mosley 15 and picked up George James. Writer asked him to show writer where Bubba lives. Writer was directed to the area of Auction and Main, and shown a duplex at the top of a slight hill, found to be 895 North Main. Writer then went to the Raleigh Area, drove North bound on Jackson Ave. from 240 and subject stated the bank was on he believed Raleigh Prayser Rd. Writer dr. to the area of Ral-Frayser and Hollywood where he stated the bank was on the left, (South side), indicating a Leader Federal Bank at 2595 Frayser
Blvd. He stated Ms. Owens had let him out of the car across the street and he waited next to the closed Jefferson Ward, 2506 Frayser and drank a bottle of Thunderbird wine. He stated the bottle still may be in the bushes on the west side. He walked over and retrieved a green wine bottle with a Red Thunderbird label on the front. Writer then drove to the Raleigh area, Raleigh Millington and Yale, and subject pointed out the Exxon station at the North west corner as the station where he and Mrs. Owens had stopped to get gas. He stated that the church was just up the street. As writer approached the church, subject advised that the church was right up here. Subject directed writer to turn into the south drive, as he stated the drive circled around the rear of the church and came back out. He pointed out a door on the south east end of the gym stating that was the door shown him by Mrs. Owens. Writer asked subject if he could take writer to the house but he said no, he had only seen pictures of it. Writer took him north bound on Oak and as the house was approached without him knowing the names of the street or being told, stated that the house on the south west corner of Oak and Scepter looked like the house. The car in the drive was hers, and was positive of the house from the front. Subject was taken to BPD where he was interviewed by George McCrary, Bartlett City Prosecutor, and he related the same story. Subject was then taken home. Subject did state during his interview that he would give officers permission to tape a telephone conversation with Mrs. Owens and he stated he would get her to talk about the murder.
2-21-85 1000 hours. Writer and Sgt. W.P.Freeman went to Violent crimes and spoke with Sgt. J.D. Douglas, B.G. Townsend, Capt. C. Keenan, and Lt. J. Bursi, advising them of the information gained. Writer asked Sgt. Douglas if he would interview James to ascertain if he felt subject was telling the truth as writer felt. Writer, Sgt. Douglas, and Sgt. Freeman returned to 11 Front, and were met by Bill Gillespie and George James. After interviewing George James, his girl friend, Yvonne, was brought in and told officer that she had observed the lady in a blue 2 dr. car come to their home and pick up George. She also stated she had seen the keys and photographs mentioned earlier. She was unable to identify Mrs. Owens in photo line up. George had earlier, however, picked Mrs. Owens 6 year mug shot out of a series of 10 photos of women. A meeting was set up for 0900 hours the next date.
0855 Writer and Sgt. Freeman arrived at 11 Front and met with Bill Gillespie, Sgt. J.D. Douglas, Sgt. B.G. Townsend and George James. George James signed a waiver to allow officers to tape his telephone conversations. He called the telephone number given him several days before by Mrs. Owens' sister, Carolyn, 377-3794. Mrs. Owens answered the telephone, greeted the subject but told him there was no way she could get away from her family today, it would be next week. When asked if she knew what it was about, she said yes. When told he wanted something she said OK. At one point she was asked who it was on the phone by someone in the room with her and she replied a policewoman, then called the subject Becky. She then told subject call back later. During the next phone call, subject was more adamant as to having a meeting with her and she stated she was just too busy with relatives, but called back in an hour and she would see. The next phone call she advised him to call her at 14 00 hours and she would try to meat him. Next phone call she agreed to meet him.
Writer, Sgt. W.P.Freeman, Sgt. B.G. Townsend, and Sgt. J.D. Douglas, met with 2 officers from the Organized Crime Division of MPD, F. Hester and D. Jones at the Raleigh Springs Mall where subject was equipped with a body wire. Subject was taken to Raleigh Millington and Yale by an agent of U.S. Postal Service in a gold Camaro. Subject called Mrs. Owens on the telephone and she told him to meet her in front of Skaggs on Raleigh Millington. Writer observed Mrs. Owens' car pull into the parking lot and observed Mrs. Owens go into Skaggs. Then exit several minutes later, and pull into the south end of the lot. Conversation was monitored by Frank Hester and Sgt. Freeman, where Mrs. Owens stated he had her husband killed because they had a bad 13 year marriage. After several minutes. Officers were advised enough information had been obtained and to arrest the subject. Mrs. Owens was arrested, advised she. was being arrested for Murder, and advised of her rights by Sgt, B.G.Townsend. Subject stated while enroute to Violent Crimes Offices that she had just met the subject because he had information regarding the murder. Writer told subject th[ILLEGIBLE TEXT] was not going to float because we had monitored" her conversations with t[ILLEGIBLE TEXT] James subject all day. She then stated that she just wanted her husband coughed up because of affairs he was having. Upon arrival at Violent Crimes Offices, she was again advised of her rights, and she confessed to writer and Sgt, J.D. Douglas of the fact that she did in fact contract the killing, supplied information to persons regarding her husband's activity, and had last spoken Sunday evening with a man named Little Johnny or Little Sonny at Watkins and Hwy 51. She stated she thought the matter was still unsettled until she arrived home Sunday night.
She stated the basic same information already known to Officers, with the exception of the last person she'd met. She stated he owned" or worked in a garage on Second Street at Marble. She later stated his name was Porterfield. She was asked to give a typed statement and she agreed. She was again advised of her rights and agreed to talk to writer and gave a complete, signed admonition, waiver, and confession.
The MPD Tact Unit had, at Capt. Keenan's request brought 3 persons in for questioning. George "BUBBA" Sykes, Larry Gant, and Sidney Porterfield. All three subjects were questioned, writer speaking initially with George Sykes. Mr. Sykes stated he knows Mrs. Owens and had been approached by her regarding killing her husband for money, however, he never intended to kill her husband, but only take money from the woman. He also kept making statements regarding a "Stonewall" and "Mike", found to be John W. Jordan and Mike Powell. Statements had been taken from them earlier in the day, by Sgt. Garner and Wright, indicating they too had been approached by Mrs. Owens to kill her husband. Sykes was shown a photo lineup and he immediately identified Mrs. Owens as the person he knew as "Gaile". Be stated Larry Gant had been at his home Sunday, 2-17-85 until late waiting on Sidney Porterfield to return his car.
Gant was questioned and he stated Porterfield had arrived at his house at 820 Garland in a Little John Cab, asked to use Gant's car for a couple of hours. Porterfield took Gant and his girlfriend over to George Syke's residence on Main, then left with the car. He stated he had seen the worn: before but never spoken with her. Writer was advised by Sgt. J.D. Dougla; that Porterfield had confessed to the Murder and was ready to make a typed statement.
Writer and Sgt. B.G. Townsend advised Sidney Porterfield again of his rights which he waived and he gave a complete confession, stating he was alone and had killed Mr. Owens with a tire iron. [see attached statement) .
Porterfield was transported to Bartlett Police Department.
AFFIDAVIT OF DR. LYNNE ZAGER
Dr. Lynne Zager, being of lawful age, states the following:
1. I am an adult resident of Jackson, Madison County, Tennessee.
2. I am a clinical psychologist with experience in the forensic area.
3. I received my Bachelor of Arts degree from University of Tennessee-Knoxville in June 1976. I completed my Master's of Science and Doctoral work at Florida State University (FSU) in Tallabassee, FL (M.S. 1978; Ph.D. 1981).
4. My Pre-Doctoral Internship was accomplished at the University of Tennessee-Memphis Clinical Psychology Internship Consortium with funding through the Veteran's Administration Medical Center in Memphis TN. Although a year of Post-Doctoral supervision was not required at that time, I also elected to complete a year of Post-Doctoral supervision under the direction of John Hutson, Ph.D. from 1983 to 1984.
5. In 1983, I joined the staff at Midtown Mental Health Center (MMHC) in Memphis, TN. While there, I served as the Forensic Coordinator/Director from 1983 to 1988, and later as the Clinical Director of the agency from 1988 to 1998.I also have been an Assistant Clinical Professor and currently am an Associate Clinical Professor at the University of Tennessee-Memphis (the Medical School) in the Department of Psychiatry.
6. Until its closing in 2008, I served at MMHC as the Forensic Director, Midtown Counseling Center Director (a subsidiary of MMHC), and Director of Research and Development.
7. In addition to the above current responsibilities, I have maintained a private practice through Psychological Services since 1988 in my hometown of Jackson, Tennessee. I have also been accepted as an expert witness in many civil, criminal and federal courts in Shelby County and throughout West Tennessee.
8. On October 22.1985, as part of my responsibilities at MMHC, I evaluated Gaile Owens. The evaluation was court-ordered and was for the purpose of determining competency and mental condition at the time of the offense. I was hot told prior to my evaluation of Ms. Owens mat any question had been raised relating to battered women's, syndrome. However, doing my evaluation, Ms Owens disclosed significant information about her relationship with. her husband including affairs, sexual humiliation and overall mistreatment of her, along with the impact his behavior had on her psychologically. Ms. Owens indicated she was depressed, insecure, fearful of him, and could not cope. Ms. Owens was fearful because her husband told her that if she asked for a divorce, he would take custody of the children and keep them from her. It was my impression Ms. Owens was a battered woman and mat she could have attempted to assert that she bad battered women's syndrome to explain her behavior at the time of the offense.
9. Battered women's syndrome is about power and control. It is a pattern of assaultive and coercive Behavior, including psychological, sexual, and physical abuse. The syndrome is characterized by dominance and control exerted by the husband over the wife, leading to increasing entrapment of the wife, or what is often called "learned helplessness." A woman suffers from "learned helplessness" where the repetition of the cycle of violence over time linked to the undermining of a woman's self-belief, create a situation where the woman feels trapped in a miserable and often dangerous situation. A cluster of symptoms develop in the woman as a result and are used to identify a battered women's syndrome. These symptoms include: low self-esteem, self-blame, anxiety, depression, fear, suspiciousness and loss of belief in the possibility of change. At the time of my evaluation of Ms. Owens, she exhibited these symptoms; including low self-esteem, anxiety, depression, and fear. In addition, she described the controlling and belittling behavior of her husband towards her.
10. Although Ms. Owens did not tell me that her husband physically and sexually abused her, her failure to reveal this information was not atypical. In fact, it is very normal for a woman who is abused by her husband to hide the abuse. Often, abused women, especially those who are married to their abusers, blame themselves for the abuse, believing that the violence is their fault. In addition, abused women also fear retaliation from theirs abusers if they tell. I am not at all surprised that Ms. Owens had not told anyone about her husband's physical, sexual, and psychological abuse or infidelity prior to her husband's murder.
11. Ms. Owens's attorneys never attempted to contact me to discuss my evaluation of Ms. Owens or to get my notes or any records I had relating to Ms. Owens. As a result, I never had the chance to tell them about my belief that Ms. Owens had been abused and was suffering from battered women's syndrome at the time of the offense. I did not relay this information to the Court as it was not responsive to the Court's order that I simply provide my opinion to the Court regarding Ms. Owens's competency and mental condition at the time. I recommended she be considered competent and I did not have sufficient data to make a recommendation regarding her mental condition at the time of the offense. However, based on all information available to me at this time, I do believe that the assertion of battered women's syndrome was warranted in her case.
12. A letter in my file reflects that on November 15, 1985,. I informed the Court that it was my opinion that Ms. Owens was competent to stand trial. Also, in my letter, I indicated that I had not been able to evaluate Ms. Owens's sanity at the time of the offense because Ms. Owens was uncomfortable discussing the specifics of the crime until she had the change to talk to one of her attorneys. I tried on several occasions to speak with her about the facts of the crime but she indicated she had not yet been able to speak with her attorneys. It was quite easy for me to meet with her because MMHC was provided office space in the Medical Department located in the Shelby County Jail at that time. As a result, an appointment was not necessary for the forensic learn to continue the evaluation of Ms. Owens.
13. I read the Sixth Circuit Court of Appeals opinion in Ms. Owens's case dated December 9, 2008. I was very disappointed to see that the opinion characterized Ms. Owens as "uncooperative" in relationship to my evaluation of her. The forensic team, including myself, did not perceive Ms. Owens to be uncooperative at all. Instead, as I stated in paragraph 8 above, Ms. Owens provided me with very personal and significant information relating to her unhappy marriage, her husband's affairs, and her depression and desperation in the, months and years prior to the offense. Ms. Owens simply wanted to speak with her attorneys before discussing the specifics of the crime.
I declare, under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Further affiant sayeth not.
____________________ Dr. Lynne Zager.
Dated this 14 th day of July, 2009.
11. October 3 1985 Order Directing Evaluation of Defendant.02-05-10
12. Notes from Dr Lynne Zager regarding October 22 1985 eval.02-05-10
STATEMENT INFORMING DEFENDANT OF PURPOSE OF EVALUATION
A pre-trial (competency/insanity defense) Forensic evaluation was ordered on ______________________________________ by ________________________________. The purpose of the evaluation was discussed with the defendant on __________________ before the interview started. I explained that the evaluation was ordered by Judge __________________________________ and that the defendant's attorney had knowledge of the evaluation. I further explained that information received during the interview would be available to the Judge, the Prosecutor, and the Defendant's Attorney; and that a letter summarizing the findings would be sent to the Judge, the Prosecutor and the Defense Attorney. The defendant was given the opportunity to ask questions about the procedures before the interview started. The defendant demonstrated that he understood the purpose of the evaluation by summarizing what I had said.
_____________________ Evaluator's Name
10/22/85 Date
November 15, 1985.
Joseph B. McCartie Judge Division VIII, Criminal Court Hemphis, TN 38103
Re: Gaile K. Owens. Docket #8501174.
Dear Judge McCartie:
On October 22, 1985, we began the evaluation of Ms. Marcia G. Owens pursuant to your order. At that time, Ms. Owens understood the nature of the legal process; she understood the charges and the possible consequences of the charges; and she seemed capable of assisting counsel and participating in the defense. Thus, I recommend that the court consider Ms. Owens competent to proceed with the disposition of the charges.
Ms. Owens was reluctant to discuss her situation at the time of the alleged offense with us on October 22, 1985 because she wanted to confer with defense counsel. We tried on three separate occasions to complete the insanity portion of the evaluation but Ms. Owens informed us that she had not had the opportunity to consult with counsel. Therefore, we have no evidence to support a defense of insanity.
If we can be of additional assistance in this case, please feel free to contact us at 577-0200.
Sincerely,
Lynne D. Zager, Ph.D. Forensic Coordinator
Julianne Venable, M.A., Psychology Intern
LDZ/JV:vb
cc: Atty. James O. Marty
Atty. Don Strother
14. Timesheets of Jim Marty and Brett Stein.02-05-10
having to get back on the witness stand to take the stand in this phase.
BY THE COURT: Is that your desire, Miss Owens?
BY THE WITNESS: Yes, sir.
BY THE COURT: Not to testify?
BY THE WITNESS: Yes, sir.
BY MR. STEIN: Also, if Your Honor will give us about a five-minute recess. I need to, (1), for obvious reasons, plus we need to talk to a witness just to be sure he is here.
BY THE COURT: Inform the jury to take a ten-minute recess. The Court stands in recess ten minutes.
(Whereupon the Court stood in recess, after which the following proceedings were held in open court.)
BY THE COURT: Are you gentlemen ready for the jury?
BY MR. MARTY: Ready.
BY THE COURT: Bring the jury in.
(Whereupon the jury was returned to the courtroom, and the following proceedings held in open court.)
BY THE COURT: You may call your first witness, Mr Stein.
BY MR. MARTY: Your Honor, we call Dr. Max West.
DR. MAX WEST,
after having been first duly sworn, was examined and testified upon his oath as follows:
BY THE COURT: Doctor, if you will just relax in your chair; don't worry about this microphone. It will take care of itself. You don't have to lean over and try to talk into it. Speak loudly enough so the gentlemen on the back row in the right-hand chair of the jury box will be able to hear your testimony, will you, please, sir?
BY THE WITNESS: Yes, sir.
BY THE COURT: Thank you.
DIRECT EXAMINATION
BY MR. MARTY:
Q State your name and spell your last name for the ladies and gentlemen of the jury and the record, please, sir.
A I'm Dr. Max West, W-E-S-T.
Q Dr. West, what kind of a doctor are you, sir?
A I'm a psychiatrist.
Q Would you, sir, briefly go into your educational background? Where did you go to under-graduate school, sir?
A Under-graduate was at Union University in Jackson, Tennessee.
Q Where did you take up your graduate course of study?
A At the University of Tennessee, College of Medicine here in Memphis.
Q And when was that, sir?
A I graduated in `57 . . . medical school.
Q Did you become, as a result of graduating from the University of Tennessee Medical School, . . . did you receive a license to practice medicine in the State of Tennessee, sir?
A Yes, sir.
Q And when did you receive that license, sir?
A That was, I believe, in `58 . . . I believe.
Q And was that license in the area of psychiatry, sir?
A No, sir; not initially. It was just general medicine.
Q And did you eventually expand your educational level and obtain a degree, sir, a license to practice psychiatry, sir?
A Yes. After a few years of general practice in South Carolina, I went to Conneticut . . . Norwich, Connecticut . . . and did three years of specialty training there. Then I went to Mayo for a fourth year, and, subsequently, after a year of practice in psychiatry, was certified in the field of psychiatry.
Q And are you so certified today in the State of Tennessee?
A Yes, sir.
Q Were you also so certified in the field of psychiatry in 1978 in Tennessee, sir?
A Yes.
Q All right. Dr. West, I'll ask you this: During August, 1978, did you have an occasion, sir, to come in contact with one Miss Gaile Owens?
A Yes.
Q All right. How long did you come in contact with her, approximately, if you remember?
A I saw her for a one-hour session in my office.
Q And was she in your office, Dr. West, because of some behavorial problem or some problem she was experiencing?
A Yes, sir.
Q And as a result of you talking with Miss Owens back in 1978, did she kind of give you a little family history, sir, of her family?
A Yes.
Q And that's normal, is it not, for individuals who have to be diagnosed or have to be treated?
A Yes, sir.
Q And did she indicate to you that she had . . .
BY MR. STROTHER: I'm going to object to what she said as hearsay, Your Honor.
BY THE COURT: Sustained.
Q As part of your official duties, you took a history from her; did you not, sir?
A Yes, sir.
Q Would you tell the ladies and gentlemen what history you took from her?
BY MR. STROTHER: Your Honor, I'm going to object to what she said as hearsay.
BY THE COURT: The objection is sustained.
Q Dr. West, as a result of you talking with Miss Owens and taking a history from her . . . or taking a history, did you form an opinion, sir, whether or not Miss Owens was experiencing some kind of problem, sir?
A I did.
Q And what was that opinion, sir?
A I think my opinion was that she, indeed, had some problems.
Q And, of course, I think you indicated she only stayed one hour?
A Yes.
Q But in that short period of time, you came, within a reasonable degree of medical certainty, to the conclusion and the opinion that she was experiencing some kind of severe problem; is that correct?
A Yes, sir.
BY MR. MARTY: Your witness.
BY THE COURT: You may cross examine, Mr. Bailey.
BY MR. BAILEY: No questions, Your Honor.
BY THE COURT: State.
CROSS EXAMINATION
BY MR. STROTHER:
Q Did you suggest any treatment for her?
A At the end of the session, I gave her some psychological profiles to complete and asked her about possibly having her husband come in to see me, also, for perhaps a joint session. She agreed to that, but I did not see either of them again.
Q She never returned?
A No, sir.
Q And the only time you've ever seen this woman in your life was for an hour in 1978; is that correct?
A Yes, sir.
BY MR. STROTHER: I have no other questions.
BY THE COURT: Any re-direct?
BY MR. MARTY: No, Your Honor.
BY THE COURT: Thank you, doctor, you may step down. Return to your practice or your office or wherever. You're excused from court. Do not return to the witness room, and do not discuss your testimony with anyone.
BY THE WITNESS: Thank you.
BY THE COURT: Thank you. Call your next witness.
BY MR. MARTY: Elizabeth Bratcher.
AFFIDAVIT
State of Colorado
County of Denver
I, LENORE E. WALKER, Ed.D., being first duly Sworn depose and say:
1. I am a clinical and forensic psychologist and have a license to practice psychology in the states of Colorado, where I currently reside, and New Jersey, where I formerly resided. I hold a clinical adjunct faculty position at the University of Denver, in the School of Professional Psychology. 1 hold a diplomat in. clinical psychology from the American Board of Professional Psychology: I am a Fellow in the American Psychological Association and was a member of its board of directors. I am a distinguished practitioner in the National. Academies of Practice. I received my Ed.D. in psychology from Rutgers, a state university in New Jersey, my masters in psychology from City College, City University of Hew York, and ray bachelor's from Hunter College in New York. A copy of my resume which offers greater detail about my research, publications, teaching, and private practice experience is attached to this affidavit.
2. I have published nine books on battered women and over two dozen articles in the area. I have served as an consultant to the U. S. Attorney General's Task Force on Victims and Family Violence, have conducted research about battered and abused women funded by federal, state, and private agencies, and have been recognized as an expert in the field of psychology and battered women in numerous civil and criminal jurisdictions across the country. I have also served as a faculty member in professional training seminars for attorneys, mental health professionals, educators, and health care providers on issues related to battered women. I have served as an expert psychologist for both the defense and the state in criminal proceedings. I have conducted mental health evaluations and social assessments in capital cases for federal habeas proceedings for the defense.
3. At the request of counsel for Ms. Gaile Owens, I reviewed a preliminary report and affidavit by Scharlette Holdman, an experienced investigator, concerning Ms. Owens' case to determine if there is reason to believe that Ms.. Owens was a battered woman and if her history of victimisation influenced her behavior and functioning. There is a strong possibility that Ms. Owens was battered and subjected to chronic sexual abuse by her husband. If her reports to Ms. Holdman are confirmed by subsequent investigation and evaluation, it would be critical to take her history of abuse into account in any reliable determination of her mental functioning. However, until additional investigation and appropriate mental health evaluations are conducted it is impossible to offer a diagnosis concerning Ms. Owens' mental status.
4. It is well established in the mental health profession that an accurate and complete medical and social-history is an essential component of a mental health evaluation. Without this history, no mental health professional can render a valid, professionally sound opinion regarding an individual's mental state. This is especially so in a forensic setting, and even more true in a capital case. Due to the nature, number and breadth of the legal questions involved relevant to guilt or innocence and sentencing. it is critical to have all relevant information regarding a defendant's medical and social history.
5. In this particular case, an investigation is necessary to document and confirm potential-factors such as the presence,. extent, and severity of sexual, psychological, and physical abuse, stress and trauma, medical health, education, and family dynamics that influenced Ms. Owens during her developmental and adult life. Collateral evidence must be gathered to confirm the reports of abuse and to determine its effect on Ms Owens' functioning. The results of the investigation should be reviewed and analyzed by competent mental health professionals with expertise in the area of battered women.
6. In my professional opinion, a determination of the presence, extent and severity of abuse sustained by Ms. Owens is an essential component of any adequate mental health evaluation or of any effort to understand her functioning and behavior. I am willing to conduct and prepare such an evaluation for a reasonable fee and if the schedule in Ms. Owens' case allows me adequate notice and time to review the necessary materials, conduct appropriate tests and interviews, consult with other mental health professionals if necessary and formulate my opinion.
7. Based on my experience in other capital cases with similar circumstances, an evaluation will involve three components in addition to any testimony in court. The three components are: 1) Review of life history and case related materials, including interviews with informants other than the defendant and interviews with current counsel, 20 hours;. 2) Clinical interview and administration of psychological battery of tests, 16 hours, and 3) Formulation of opinion and preparation of report or social assessment, 8 hours. My standard fee for my services in a case such as this is $150.00 an hour plus expenses for travel, postage, copying, and telephone.
Subscribed to and sworn to before roe this day of29 th, day of October 1990.
________________________________ Notary Public, State of Colorado
My commission expires: 7/5/94
IN THE CRIMINAL COURT OF SHELBY COUNTY, TENNESSEE.
STATE OF TENNESSEE, Plaintiff, vs. GAILE K. OWENS, Defendant.
No. 85-01174.
Division 8
FILED 9-30-85
MOTION FOR EXCULPATORY EVIDENCE
Defendant, Gaile K. Owens, through counsel, and by the authority of Brady v. Maryland moves for an order requiring the State of Tennessee to turn over to counsel all exculpatory material relating to guilt and punishment in its possession, or in the possession of its agents, or which through due diligence could be found.
Under the doctrine of Agurs v. United States the defendant makes the following allegations and specific request.
Counsel for defendant has learned through its investigation and has good reason to believe that the deceased husband of the defendant had numerous girl friends, extra marital sexual affairs possible involving unusual sexual proclivities and/or perversions and that these proclivities, perversions, and affairs were flaunted and visited upon defendant with such regularity and in such ways as to contribute to her state of mind and mental condition and that proof of such is material to issues of guilt and punishment and further counsel believes that the State of Tennessee has in its possession or under its control information that would prove the above allegations.
More specifically there was a search of the entire house of the deceased after the defendant was in custody; his personal possessions at his office were inventoried and seized and numerous friends and business acquaintances were interviewed by officers. Counsel believes that at the house and office were found numerous items that would verity the above allegations including but not limited to names, addresses, and correspondence to and from "lovers" which would be of greet benefit to the defense.
Defendant moves the Court to order the state to seek out these items through its agants and to make available to the defense the entire contents of the house seized and the contents of the office of the deceased.
Respectivelly Submitted,
____________________________ Wayne Edmons
707 Adams Avenue Hemphis, Tennessee 38105 (961) 525-8601
____________________________ James O. Marty
212 Adams Avenue Hemphis, Tennessee 38103-1990
ATTORNEYS FOR DEFENDENT
CERTIFICATE OF SERVICE
I certify that a copy of this Motion has been hand delivered to the Attorney General on this the 30 day ofSeptember 1985.
____________________________ Wayne Emmons and or James O. Marty
office that, again, would indicate many things that occurred between the deceased and the defendant Mrs. Owens that relate to her state of mind in regard to this murder case chat are extremely important to the development, number one, of her mental state and, number two, to any development of mitigating circumstances in the event of a conviction of I murder in the first degree.
THE COURT: State?
MR. STROTHER: Your Honor, I think that we are required, and as we have done. show them — you know, we talk about items coming from the house. To the best of ray knowledge, we have shown them every single scintilla of evidence which we have seized and which we have that came from the house. Anything that is in the possession of any law enforcement agency we have and we have shown to counsel for the defense.
As to any other information that could be developed, then I think we might be, if ye have such information, required to furnish them the names and addresses of any individuals who can shed any light on it. And I will be happy to do that if — and I think it has in fact been done.
THE COURT: Mr. Emmons, who made — who allegedly made the search at the personal property at the office?
MR. EMMONS: Your Honor, I'm not sure. I'm not sure if it was police officers or if it was simply hospital personnel cleaning out his — or if it were in fact relatives of the family.
I believe probably — and this is just a guess based on what information I have — that it was maybe hospital personnel and relatives of the family, and thus, would not I involve police officers, but I don't know that for a fact.
Now, the point I want to stress to the court is that assuming the State exercised a, search warrant and seized only certain items, we have no doubt but they would furnish us with every thing they seized. But there was a housefull of stuff there. There was an office full of scuff that are not in our possession that are in somebody's possession.
THE COURT: You claim they're in the State's possession?
MR. EMMONS: I claim that they could be. I claim that the State has the power and the authority to get those items than we don't have the power and the authority to get. And if we have — In other words, here we have got a situation where names, addresses, letters, notes, all sorts of things we believe to be that relate to the extramarital affairs of the deceased and the strange sexual proclivities are in the possession of somebody, and we have —
THE COURT: Well, unless they're in the possession the State, the court has no jurisdiction to order somebody to turn them over.
MR. EMMONS: I understand that, but I believe the State has the power to reach those items.
THE COURT: Court not going to order any something I such as that. If they don't have them, the court is not going to order them to go out and get them. You have the same authority.
MR. EMMONS: I don't believe so, Your Honor. I believe Mr. Strother —
THE COURT: Well, what power to get a search that you don't have that the State has?
MR. EMMONS: Well, I'll just put it this way, Judge, and I've been prosecutor for six or seven years as the court knows and defense lawyer for that long, and if as a defense lawyer today I go pick up a phone and call the administrator of the Baptist hospital or the family and say, look, we'd like all that stuff that came out of the office, they're going to say, Ha, ha, or whatever they might say.
If Mr. Strother calls them, they're going to listen to them. He's the prosecutor, he's the district attorney — assistant district attorney — He has the inherent power — He's the prosecutor of this case. He has inherent power to gather and collect evidence.
THE COURT: He don't have — he don't have the power to just go out and get it without a search warrant if he's going to search an office.
Now, what authority does he have just simply because he's assistant district attorney?
MR. EMMONS: I'm talking about the power of the office, Your Honor.
THE COURT: Well, now you —
MR. EMMONS: Not the statutory — I'm not talking about the highly — the high technicalities of the law that many times we can flee to in order to find a simple and safe answer, and that's a simple and safe answer.
But I'm saying you're talking about a death I penalty case where we're appointed counsel working under time restraints. We've got information out here that we need in order to properly prepare this case and go to the mental —
THE COURT: You got the power of subpoena?
MR. EMMONS: Yes, sir.
THE COURT: You got the power of duces tecum?
MR. EMMONS: Yes, sir.
THE COURT: Then what else you need?
MR. EMMONS: But what good is going to do us, Judge, to subpoena duces tecum at the time of trial and discover it right in the middle of trial we've got all of these witnesses we should have talked to because we've now used duces tecum to get them here? That doesn't do us any good.
THE COURT: What prevents you to go out and talk to witnesses now?
MR. EMMONS: Well, nothing to prevent us from talking to witnesses, but to get these physical items of evidence that we think can be important, there would be —
THE COURT: Well, don't you think, number one, that you ought to verify whether or not they exist?
MR. EMMONS; Oh, yes, sir.
THE COURT: Well, I would suggest that you do that.
MR. EMMONS: Well, I would think, too, that —
THE COURT: I'm not going to order the State to go do it for you .
MR. EMMONS: Well, we would ask this — Mr. Marty's reminded, me of this — that if the district attorney has in his possession any of these items that came from the search of the house or the inventory or — not search of the office but the inventory of his office, then we feel like under this authority we have a right to that now.
I assume —
THE COURT: Do you have an inventory of the office, Mr. Strother?
MR. STR0THER: Excuse me?
THE COURT: Do you have an inventory of items in his office?
MR. STROTHER: Not that I am aware of, Your Honor.
Everything we have in the way of any kind of piece of physical evidence, any piece of paper, any notebook, any — anything along those lines, letters and etcetera that we have, we have made available to them. The names of any people who we know who would know anything about this and the addresses of those individuals, I think likewise we have provided them with.
That's the only thing I know to say.
MR. EMMONS: Well, I certainly accept that. I've got no reason not to. And I just further say — and I'm pushing on the court — the idea that the State has a positive responsibility to go beyond what they have.
The same argument I'm making in regard to the records. We are not asking for impossible things. All they've got to do is make a phone call or two.
And we believe that they have given us everything they have, but we believe that the law — the spirit of the law requires that they make available to us things that are within their power to make available to us that might be exculpatory.
In the alternative, Your Honor, if the court rules against us on that, which I think it likely, then I'd like to add this to my reason for a continuance motion that we filed with the court. I think the court's right. There might be ways we can get to this information but it might require a store, and to rob it and have the clerk grab for your gun, or you try to run away, and you shoot and kill him, and you decide to kill him in a single instant is one thing; but Miss Owens and Mr. Porterfield planned . . . in Miss Owens' case for months . . . to get this done . . . worked at it for months . . . wouldn't give up on it. Think about that.
Mr. Porterfield went there and struck this man twenty-one times imprinting the carpet on him, driving him into the floor, and took this man . . . this fine-looking young man . . . in the prime of his life . . . and turned him into that cold piece of meat on a table. The crime!
One other thing I think we have to consider is deterrents. That's one reason we have the Death Penalty.
BY MR. STEIN: Your Honor, I'm going to object to any statement along those lines. It's not proof in the record. I think our appellate courts say that you've got to have proof of it in the record.
BY THE COURT: Overruled.
BY MR. STROTHER: If it takes the execution of ten Sidney Porterfields and Marsha Gaile Owens, who would cooly and deliberately plot and design the death of a Ronald Owens . . . if it takes ten of their deaths in the electric chair to make only one potentioal Sidney Porterfield or Marsha Gaile Owens say, "No, I will not kill that innocent man, because I might get electricuted for it," it's worth it.
But the important point is, and the only meaningful point is, that I submit to you that each and every one of you promised me, not as an individual, but promised the State of Tennessee that you would have the courage to look at this case, and if we proved, beyond a reasonable doubt and to a moral certainty, the aggravating circumstances, and you found there to be no mitigation, which I submit to you is certainly the case here, that you would follow the law; just as it is every citizens' sacred duty to follow that law; and I simply call upon you, now, to keep that promise to the State of Tennessee. Let us earn the respect for the Court system that it deserves, and bring back . . . not the verdict that I say is appropriate, but the verdict that, in this case, is the only verdict that truth dictates and justice demands.
(Whereupon the Court's charge immediately followed, and was not transcribed as part of this record.)
BY THE COURT: Are there any requests for any special instructions?
BY MR. MARTY: No, Your Honor.
BY MR. JONES: No.
BY THE COURT: Take the case, consider all the evidence fairly and impartially, and report your verdict to the Court. These forms are attached to the charge. I'm going to allow you to go to lunch before you commence your duty to go back and read every charge which might apply, and I submit to you, ladies and gentlemen, you will be able to find a charge that fits Miss Owens, but it won't be Murder in the First Degree. Thank you.
BY THE COURT: State.
REBUTTAL ARGUMENT
BY MR. STROTHER:
Ladies and gentlemen, this is an argument in which the State gets to respond to the arguments of counsel for the defendants. I hope, and I say this with no levity intended, that none of you will hold it against me or the State if I don't take as long to respond to the arguments of Mr. Marty and Mr. Bailey as they took to make them. I honestly and sincerely don't believe that in my representation of the State that it will take me that long to answer and respond to the questions they've attempted to raise.
Generally, Mr. Marty's argument, which I'll respond to first is that something was wrong . . . the bizarre activity of his client, that something was amiss. Yes, I think that's certainly true that something was amiss. I don't think that any words fit it better than "That was a desperate woman." That was a desparate woman; not because of anyone else's actions, but because of her own actions she was about to loose everything that mattered to her, and there was one way and one way only to salvage that; to salvage her way of life; and that was to have her husband killed and collect the insurance money. It's just that simple. Why do I say that? Do I say that because I'm testifying? No. I say it because you have the testimony of her sister . . . her own blood sister, Carolyn Hensley, who came into this courtroom and recounted to you Miss Owens' history. Going back to `79 or `80, she had embezzled thousands of dollars, and she was supposed to pay that back, and she was supposed to have a job where she was working to pay it back. And what do we find out she was doing on this second new job with Dr. Jones? Lo and behold, to pay the money back . . . the original money she owed . . . she had been embezzling from Dr. Jones and she gets caught, and her own father has to sign a note for $20,000, which he's still paying on. And she forges his name to a second side note obligating herself to make monthly payments to this man to keep from having to go to jail again. And how does she start getting that money? We heard about the invalid aunt on whose account she wrote checks on non-existent funds from that aunt's account and put those into her account. And we heard how the bills that Mr. Owens was attempting to pay were not being paid with those checks; probably very much like the check . . . the $2,000 check Mr. Owens' father sent. . Those were never mailed to people they were supposed to go to, and Mrs. Owens was writing checks on those funds.
And what had her husband told her? What would
what transpired as far as you know?
A. Yes, sir.
Q. What did you do with the notes after you got them from Mr. Owens' office?
A. We took those notes back to our office where we held them for some time. And Ms. Scott asked for them to be returned after we had determined the other facts that we — during the investigation and discussed it with someone — t don't even remember who now, whether it was a city attorney or one of the state's attorneys. And they said it had no bearing on it. They could be returned.
Q. Okay. You kind of jumped ahead of me, but let me back up a little bit. Can you describe what was on those notes?
A. They were juvenilistic love notes.
Q. Did they have pet names on there?
A. Yes, sir.
Q. Names such as "Lollipop" —
A. Yes, sir.
Q. — "Fluff" and "Fluff Licker"?
A. No, sir.
Q. Do you recall any other descriptions on there?
A. No, sir.
Q. Any drawings on them?
A. No, sir.
Q. Were those notes from Gala Scott and Dianne Wood?
A. Dianne — if I remember correctly, the notes from Dianne Wood were more of a friendship type. They weren't a romantic. They were more like "Happy Birthday" type things. Now, Gala Scott's were definitely romantic and . . .
Q. Were they explicitly sexual?
A. As vaguely as I can remember, there were some — well, of course, the net names in itself were indicative of that.
Q. And you said that. Ms. Scott called you to ask if she could have the cards back. Do you recall who you checked with?
A. No, sir.
Q. Do you remember speaking with Libby Moore from our office on February 3rd, 1997?
A. Yes, sir.
Q. Do you recall the answer to that question, you said that you had called General Strother?
A. To the best of my memory it was General Strother. It may have been a city prosecutor, George McCrary. Or it could have been Mr. Challen, I believe was involved in the — I'm sorry. I just don't remember who it was.
Q. General Strother and General Challen were handling the cases for the "State, weren't they?
A. The best I remember, yes, sir.