Ineffective Assistance and Expert Testimony – D.C. Circuit remands denial of coram nobis petition advancing battered woman syndrome defense: United States v. Nwoye, _ F.3d _ (D.C. Circuit, No. 14-3060, June 10, 2016).
In the third remand decision of the day, an extremely divergent panel of the D.C. Circuit vacated a district court decision to reject an ineffective assistance of counsel claim that was raised on collateral review. Finding error in the trial judge’s refusal to give credence to Appellant’s theory that trial counsel had negligently failed to raise a battered woman syndrome defense, the Court of Appeals vacated the sentence and remanded the case.
On direct appeal in United States v. Nwoye, 663 F.3d 460 (D.C. Cir. 2011), a divided Circuit panel rejected an argument that the trial court erroneously refused a defense request for an instruction on a duress defense. (“Nwoye I”) The Court of Appeals held in Nwoye I that “a defendant is only entitled to an instruction on a theory of duress if there is ‘sufficient evidence from which a reasonable jury could find’ for the defendant on that theory.” Id. at 462 (quoting United States v. Akhigbe, 642 F.3d 1078, 1083 (D.C. Cir.2011)).
Returning to the district court, Nwoye contended that her trial counsel rendered ineffective assistance in not presenting expert testimony on battered woman syndrome and that she was prejudiced thereby. The district court’s dismissal of that claim, United States v. Nwoye, 60 F. Supp. 3d 225 (D.D.C. 2014), then was taken up by the Circuit.
The latest twist proved to be a split opinion in which another interesting alignment (Circuit Judge Kavanagh and Senior Circuit Judge Edwards comprising the majority with Senior Circuit Judge Sentelle dissenting) found that defense counsel at the trial court level should have asserted a defense that the majority found fit Nwoye “to a T.” (Slip Op. at 18). A scholarly majority opinion by Judge Kavanagh described in detail the “significant evidence” underlying the defendant’s claim to a physically, financially and emotionally abusive relationship with a then-boyfriend, who was convicted with her for conspiring to extort monies from a prominent doctor with whom she had an extramarital affair. (Id. at 3-5, 6 n.2). After tracing the battered woman syndrome’s genesis to scholarship undertaken in the late 1970’s, the majority examined Nwoye’s trial proceedings and noted that defense counsel had staked it all on a defense of duress that rested on her testimony alone, without any expert testimony on battered woman syndrome. Nwoye was sentenced to a 20-month term of imprisonment. (Id. at 5-6).
When Nwoye I was first heard, the majority concluded that she had other reasonable alternatives to committing the extortion – reporting the boyfriend, for one thing) and upheld the trial judge’s refusal to charge the jury on duress. Also, the first panel underscored her failure to present expert testimony on battered woman syndrome. 663 F.3d at 462-65. Judge Tatel sharply dissented from that original conclusion, finding that Nwoye had submitted “more than enough evidence to have warranted a duress instruction.” Id. at 468.
Nwoye then raised a post-conviction coram nobis petition and contended her original lawyer had been her trial counsel was constitutionally ineffective by failing to call an expert witness to testify about battered woman syndrome. To establish that her counsel was constitutionally ineffective, Nwoye thus had to prove (i) that her counsel’s performance was constitutionally deficient and (ii) that counsel’s ineffective assistance prejudiced her. (Slip Op. at 8, 9) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
At an evidentiary hearing below, Nwoye’s expert opined that Nwoye “exhibited the ‘classic dynamics’ of a battering relationship.” (Slip. Op. at 8). The court below was unpersuaded. After eliding the first Strickland prong, the trial judge concluded that Nwoye had failed to demonstrate prejudice, for she supposedly “still would not have satisfied the second prong of duress – the no-reasonable-alternative prong – and that the testimony therefore would not have entitled Nwoye to a jury instruction on duress.” (Id.). That decision, in turn, was swiftly disassembled by the panel majority.
Applying de novo review, as required by United States v. Abney, 812 F.3d 1079, 1086-87 (D.C. Circuit 2016) (Slip Op. at 9-10), the majority agreed with appellate counsel’s contention that expert testimony on battered woman syndrome would have entitled her to a jury instruction on the defense of duress and that a duress instruction, coupled with the expert testimony on battered woman syndrome, would have created a “‘reasonable probability’ that the jury ‘would have had a reasonable doubt respecting guilt.’” (Slip Op. at 10) (quoting Strickland, 466 U.S. at 695. This analysis required the panel to explore the standards laid down in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). After explaining that Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999), first required Nwoye to show that the expert opinion rested on a reliable basis, Judge Kavanagh observed that the Government didn’t dispute that and that several courts of appeals have recognized the defense. (Slip Op. at 12) (citations omitted). Next, Judge Kavanagh put forth that “expert testimony on battered woman syndrome must also be relevant to proving duress” and that “[m]ost courts that have considered the question – especially in recent years – have recognized that expert testimony on battered woman syndrome can be relevant to prove duress.” (Slip. Op. at 13) (collecting numerous cases).
In a searching analysis of the law, touching on such authorities as the Model Penal Code, the panel decision then reasoned that the existence of battered woman syndrome can be pertinent to the reasonableness of the defendant’s actions, and thus be probative of the defense of duress. As Judge Kavanagh explained, “Examination of the particulars of the duress defense shows that expert testimony on battered woman syndrome can indeed identify relevant aspects of a battered woman’s particular circumstances.” (Slip Op. at 13-15).
After finding that that in as a general matter expert testimony may be admissible to prove duress, the majority determined that in her particular case Nwoye had met the reliability and relevance tests – doubtless sending a signal to practitioners not to assume this defense will work in all cases. (Id. at 17). The majority emphasized that Nwoye I initially questioned the “conspicuous absence of expert testimony” and that the Government had not contested that Nwoye’s own account “strongly suggested that she had been a victim of a battering relationship.” (Slip Op. at 17-18). Going to the heart of the dispute, Judge Kavanagh summarized that: “Perhaps most critically, expert testimony on the likelihood of retaliatory violence upon separation could have provided a plausible explanation for why Nwoye failed to extricate herself from the extortion scheme. Nwoye may have feared that any attempt to leave Osuagwu would have resulted in still greater violence. Moreover, Nwoye may have reasonably believed that reporting Osuagwu to the police (or others) would have been unlikely to result in his immediate arrest and would have therefore placed her at greater risk in the interim. Thus, Nwoye’s testimony concerning Osuagwu’s abuse, supplemented by expert testimony on battered woman syndrome, would have constituted ‘sufficient evidence from which a reasonable jury could find’ for Nwoye on a theory of duress.” (Slip Op. at 18) (citing Nwoye I at 462).
Turning to the second Strickland prong, the majority unhesitantly concluded that “Nwoye has demonstrated a reasonable probability that the jury would have had a reasonable doubt respecting her guilt.” (Id. at 19). Looking to an analogous Sixth Circuit case, the D.C. Circuit panel found that “The duress instruction would have given jurors a legal basis upon which to vote not guilty. And as discussed above, the expert testimony on battered woman syndrome would have supported both elements of Nwoye’s duress defense: the imminence of the threat and the absence of reasonable alternatives. In addition, expert testimony on battered woman syndrome would have bolstered the credibility of Nwoye’s testimony about” (Id. at 20-21) (citing Dando v. Yukins, 461 F.3d 791, 800-02 (6th Cir. 2006)). Finding prejudice, the majority remanded to consider whether the performance of trial counsel fell below an objective standard of reasonableness. (Slip Op. at 22).
Dissenting, Senior Circuit Judge Sentelle described the majority opinion as having incorrectly reversed the trial court’s “most able opinion.”(Slip Op. at 1) (Sentelle, J., dissenting). However, the dissent approached the case from a different perspective and concluded that the district judge had made credibility findings and factual determinations that the majority ought not to have rejected. (slip op.) (Sentelle, J., dissenting).
J. Kramer, Chief Federal Defender, took this case all the way to the winner’s circle and, in so doing, helped to produce a decision that we submit will have lasting import, not just in the context of the duress/battered woman syndrome defense but in the area of expert testimony as well.
–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.