Friday, December 15, 2006
C.A.: Counsel Was Ineffective in Not Pursuing BWS Defense
By KENNETH OFGANG, Staff Writer
A Santa Monica attorney rendered ineffective assistance to a San Diego woman convicted of murder after the lawyer decided not to present a defense based on battered women’s syndrome, the Fourth District Court of Appeal ruled yesterday.
Div. One granted Ny Nourn’s petition for writ of habeas corpus, saying Bruce Cormicle violated prevailing professional standards and that there was a reasonable possibility Nourn might have obtained a more favorable verdict had Cormicle properly investigated and presented a defense based on Nourn’s relationship with her abusive boyfriend.
Nourn and the boyfriend, Ronald Barker, were convicted in separate trials of murdering David Stevens. Stevens was Nourn’s supervisor at a video dating service, and the then-17-year-old Nourn slept with him hours before she and the jealous Barker killed him.
Stevens was shot to death eight years ago, and his body was found inside his car, which was set on fire on a La Jolla street. In a trial that was featured on the television series “Law and Order:Crime and Punishment,” prosecutor Chandra Carle argued that Nourn helped lure Stevens to his death in order to salvage her relationship with Barker.
Barker, an Escondido auto mechanic who met Nourn over the Internet while his wife was pregnant with their second child, was sentenced to life imprisonment without the possibility of parole, as was Nourn. Nourn’s sentence was overturned on direct appeal, however, based on instructional error as to the special circumstance allegations, and she received an indeterminate sentence on remand.
Police made no arrests in the case until 2001, nearly three years after the murder, when Nourn came forward with information, telling police Barker had threatened her.
Cormicle argued at trial that Nourn had no idea her boyfriend planned to kill Stevens, who was lured from his apartment by Nourn, who claimed she had car trouble.
While Cormicle argued that his client was abused by Nourn, he never presented evidence of, or argued, that she was a victim of BWS. In response to her habeas corpus petition, Cormicle said he chose not to present the defense because Nourn told him in confidence that she knew Barker was going to shoot Stevens—contrary to what she told the police and had originally told counsel—and that she went along because Barker told her that if she loved him, she would kill Stevens or help him do it.
But Justice Alex McDonald, writing for the Court of Appeal, said that a reasonably competent attorney would not have treated Nourn’s disclosure, and the discrepancy between that disclosure and the earlier statement to police, as necessarily precluding a BWS defense.
Cormicle, the justice said, should have at least talked to experts about the possibility of presenting BWS evidence, had Nourn tested by a psychologist, and inquired as to how Nourn’s culture and life experience—she is a Cambodian native who spent much of her childhood in a refugee camp in Thailand—affected her state of mind with regard to Barker and her participation in the killing.
The attorney’s mistakes were prejudicial, the justice went on to say, because evidence presented in support of the habeas corpus petition, including expert psychological testimony, demonstrated a reasonable possibility that the BWS defense would have succeeded.
Justice James A. McIntyre concurred in the opinion, but Justice Patricia Benke dissented.
Benke argued that California courts have not previously recognized BWS as a defense to a charge that the allegedly battered woman aided and abetted her batterer’s killing of someone else, and that the court was applying “a newly minted theory of duress...to the law of aiding and abetting.”
Since “no defense counsel should be held incompetent for not being prescient enough in 2003” to anticipate that the Court of Appeal would “expand[ ] the battered woman syndrome far beyond any recognized application of that doctrine,” she argued, the habeas corpus petition was properly denied by the trial judge.
The case is In re Nourn, 06 S.O.S. 6001.
Copyright 2006, Metropolitan News Company