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TN Governor Considers Fate of Woman on Death Row for Murdering her Husband

April 23rd, 2010 by Robert Franklin, Esq.

Here‘s an interesting editorial (Memphis Commercial Appeal, 4/23/10).

It’s about a murder case that happened way back in 1985.  Why is the paper editorializing on that case 25 years later?  Well, it seems that one of the defendants, Gaile Owens, was sentenced to be executed and it’s now up to the governor of Tennessee to decide whether the execution should go forward or not.  Why it’s taken 25 years for the issue to come up, I don’t know.

In 1985, Gaile Owens hired Sydney Porterfield to murder her husband, Ronald Owens, and the deed was done.  Porterfield attacked Owens in his home and bludgeoned him to death with a tire iron.  Porterfield is on death row, but it’s not his case the paper is concerned about; it’s Owens’s.  You see,

…Owens may become the first woman to be executed in Tennessee since 1820.

She could also be the first woman in America to be executed for a crime committed under the influence of battered woman’s syndrome.

Really?  It turns out, on closer examination, that that statement is either outright false or at best misleading.  Why?  Because at trial, there was no testimony whatsoever about “battered woman syndrome.”  The defense didn’t raise the issue in pleadings, didn’t call a single witness to testify about the subject and didn’t raise the issue on appeal.  As a consequence, the prosecution didn’t have an opportunity to cross-examine any defense expert on the issue or call an expert of its own in rebuttal.  Come to think of it, as far as we can tell, the defendant herself never raised the issue with her attorneys.

But to the Memphis Commercial Appeal, Owens’s was a “crime committed under the influence of battered woman’s syndrome.”  They know this even though there was no evidence presented at trial to support the proposition.  This is what passes for balanced, responsible opinion.

This is not to say that there’s not a professional who believes that Owens suffered from “battered woman syndrome.”  There is; her name is Dr. Lynne Zager.  She’s the same Dr. Lynne Zager that testified in the Mary Winkler trial that the defendant suffered from “battered woman syndrome.”  Mary Winkler spent less than a year in jail for the shotgun death of her husband.

But in the Owens case, Zager never said a word about “battered woman syndrome.”  She had been appointed by the court to evaluate Owens for competency to stand trial and, that’s what she did.  Here’s her affidavit describing her involvement 24 years after the fact.

Zager says she evaluated Owens and found her mentally competent to stand trial.  What that means in part is that she was able to assist in her defense, i.e. provide important information to her attorneys, understand their advice, etc.  So it’s interesting that Zager says that Owens was competent to assist her attorneys, but apparently didn’t provide them any information about her “battered woman syndrome.”  That would tend to undercut Zager’s opinion that Owens suffered from that condition.  Owens was mentally competent, but didn’t mention her “battering” to her attorneys.  That would suggest to many people that no “battering” occurred, but not to Zager.

Read paragraph 8 of Zager’s affidavit and what immediately jumps out is the fact that there’s absolutely no reference to any form of physical abuse.  Indeed, Zager says Owens told her about her husband’s extramarital affairs, “sexual humiliation and overall mistreatment.”  She also said he threatened to divorce her and take the kids.  This apparently made her “depressed, insecure, fearful of him and could not cope.”

That, according to Zager constitutes “battered woman syndrome.”  Needless to say, it also describes the emotional state of probably half the population of the country at one time or another.  Somehow, that half of the population manages to refrain from hiring a hit man to murder their nearest and dearest. 

But one of the salient features of Zager’s extremely revealing affidavit is the lack of any reference to Owens’s legal competency at the time of the murder.  That, of course is the whole point of the defense – that Owens lacked the mens rea, i.e. the requisite mental state to be held responsible for her crime.  Never has Zager offered an opinion about that, not at trial, not in her affidavit, not at any time in the ensuing 25 years.  In fact, in her affidavit, she says clearly that she could not have done so at the time of trial.  She writes.

“I did not have sufficient data (at the time of the evaluation) to make a recommendation regarding her mental condition at the time of the offense.” 

And neither did anyone else, which is why no one has ever opined that Gaile Owens lacked the mental capacity to be held legally accountable for the contract killing of her husband.

So it’s more than a trifle odd that the Memphis Commercial Appeal considers that to be an established fact.  It’s particularly odd considering the writer of the editorial clearly had a copy of Zager’s affidavit and quoted from it.

Up to now, you might have gotten the impression that Dr. Lynne Zager is at least a reasonably responsible professional, but read on.  You may change your mind.

Paragraphs 9 tells us just what “battered woman syndrome” is.  Among other things, a “repetition of the cycle of violence” creates “learned helplessness” in the woman, causing anxiety, fear, etc.  Just how hiring a hitman to murder your husband indicates “helplessness,” Zager doesn’t explain, but Paragraph 10 is the real kicker.

In it we learn that ”Ms. Owens did not tell me that her husband physically and sexually abused her.”  In short, neither Zager nor anyone else, apparently including Owens herself has a single shred of evidence that the woman’s husband abused her.  That abuse is clearly a necessary pre-condition for “battered woman syndrome” to exist.  And yet Zager and – as night follows day – the Memphis Commercial Appeal conclude that it did exist.

In short, a woman presents with symptoms like fear, depression and anxiety, that can have innumerable causes.  She says nothing about physical or sexual abuse which are integral parts of a diagnosis of ”battered woman syndrome.”  She never raises the issue with her attorneys, never presents the possiblity at her trial.  And yet Dr. Lynne Zager and the Memphis Commercial Appeal conclude without questioning that to execute Gaile Owens would be to execute a woman who was suffering from the syndrome when she hired the hitman to kill her husband.

It’s a perfect theoretical world – no facts, just opinions.  Actually, there are facts, but inconveniently, they tend to contradict the opinions, so it’s best to leave them out.  And of course that quaint old notion of letting the other side have a say is left out as well.  So there’s no opportunity for the prosecution to take apart Dr. Lynne Zager on the witness stand; no other psychological expert got a chance to offer another opinion; and the jury never got to decide whom it believed.  

It’s like virtual reality; the creator decides what gets included and what doesn’t.  No other reality enters in.   Maybe it would help to view it through 3-D glasses.

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