good morning ma'am please the court my name is michael burke and i represent ms lopez ms lopez is asking that this court reversed her convictions and remained for a new trial and although her brief raises three grounds upon which request reversal with the course permission i would like to use the time i have allotted to date of focus on one of those claims which is her claim that the district court improperly prevented her from calling an expert witness on the issue of her affirmative defense of directs she sought to call a psychological expert and made repeated requests of the court that she be allowed to call that witness and she was issue was a central focus of closing argument in the case i would like to focus for a minute on this court's decision in johnson from one thousand nine hundred two because i believe the johnson is a source of mischief both in this case and in other cases subsequent to it and i think that the most important aspect of johnson that this court must look at is really the factual grounding in that case that was a case involving multiple defendants all of whom had been involved in a drug conspiracy distribution ring the defendants were females and of those multiple defendants one of them  had at trial in support of a defense of dress presented an expert psychological witness and that witness testified there was an instruction and nevertheless miss wood was convicted of the other defendants in that case sought at trial to call that psychological witness as well and those were press were denied because the psychologist had not evaluated either of those defendants one of those defendants and this is where it becomes critical was a ms brecht and ms breck's testimony at trial was that she had never personally been threatened assaulted at at all that she was aware of others being threatened in assaulted and that awareness affected her ability to to deny the request that she can gauge in criminal activity it is in that and when i submit when the court was saying that with the court was saying is you provided no evidence in this case that you yourself were ever threatened that is a subjective argument and the court said you could not have successively called the expert a doctor film or based on that for two reasons she had never evaluated you and even if she could have testified on what she heard from you at trial that testimony would have been subject to counsel what is the scope of what of what you want to dr karp to say is dr karp going to say i have examined miss lopez and i believe that she has a bonafide fear is that which is going to testify to no your d and then she should be able to testify generally about how those about how p t s d affects their victims of abuse in general now orally she was being called both to support the substantive defense of duress and to bolster the credibility of the of this lopez  because the kinds of things that constitute the direct offense means that sometimes people say things that seem sound counter intuitive and the credibility of the witness is another reason for raising it in as i read the written document for you it's called a motion or a notice or something the purpose was to do both of those well it would be not be and inappropriate for the the expert to give testimony that would support the credibility of the witness so that that is not the limitation would be that the the expert could not get out there and testify because seven hundred seventy four b would prohibit it she could not get up there and say because she suffered from p t s d had a legitimate fear of had a well grounded fear of threat or because she suffered from p t s d she could not remove herself from the situation that type of testimony would not have been permissible but that not type of testimony was not proffered and so are we submit that a proper reading of johnson and the cases that are subsequent to johnson and reason decision but i had the district courts the court of appeals decision was very well reasoned as well and perhaps we certainly like it a little bit better so if the court has no other questions about this issue that's just a lie but that when i read that i have to say it wasn't very impressed because what miss lopez it said was she said he can't get guns and that and the prosecutor for blurts out that's a lie and then says and then explains you knew he could get guns so he's not accusing or she's not accusing this lopez of lying she's accusing this lopez of accepting a live from from mr from caracas that is  he was lying because she knew he could get guns and therefore the lie was caracas not lopez's and i think was probably inappropriate i suspect was sort of blurted out it was addressed but it didn't didn't really strike me as going to her credibility important to keep in mind the defense's theory of duress in this case which was the duress occurred on the day of the offense and if you look at page fifty five and fifty seven of the defendant's closing argument i think it's really clear the timeframe they're talking about defense counsel says when you're back in the jury room and you're trying to figure out if there was a present immediate or impending threat of death or duress sorry death or serious bodily injury you'll remember the testimony say out on her mom's porch where hector was has decided we are getting the firearm today and so that the did the defense pointed to that interchange on the on the porch as the moment of duress at which the defendant or i'm sorry caracas hector said if we don't get this gun today i'm going to come back and shoot up your house and shoot up your family and then the defense says and from that moment on he was at her side through the purchase of the firearm and so she had a real well grounded fear she knew about his history of violence and his ability to get guns and she had no opportunity to escape because he was with her through the purchase her we are getting a gun today i don't care how it happens i don't care what you think you're doing this and that's where we get to the third part back in the in the jury room no reasonable opportunity to escape because once he's decided today we're getting the gun today he's within striking distance of her the entire time that theory does not require an expert to talk about battered window women syndrome or either object o to the theory also also related to her history with her father and that other things that she had seen throughout throughout her life well the defendant testified about that right but i knew but why couldn't you have an expert testify about p t s d about battered women's syndrome about something and offer an offer an expert opinion about what the profile generally looks like without without talking about what she thinks  motivation was or wasn't and i think that's absolutely appropriate expert testimony under the ninth circuit and other circuits case the problem here was that the defendant was as the fence was essentially seeking to rebut the government's view of events which was the dress occurred over a longer period of time and so she had multiple opportunities days i don't know how dr karp could have possibly addressed you know whether this was whether this dress occurred over a long period over a short period i didn't understand th because she provided an evaluation which did not become a part of the court record but was discussed in the court record and then with the motion for a new trial dr carr provided an affidavit saying this is what i would have testified to and i quoted portions of that in my answering brief but as sensually dr karp was prepared to look at the defendant's entire history including her history with her stepfather with the police who she said never responded to two would do two things the first thing it's the doctor carpet say i have examined this young woman and in my in my opinion she suffers from p t s d that might be attributable to these to these facts and then was going to and then would say generally people with p t s d don't always behave in ways that appear behave in ways that are appear to be irrational to them that might not appear to be rational to us but offer an abstract explanation without saying this is what lopez did that's that's a that's a much more circumscribed proffer them what you've just what you've just offer and i'm going to focus on her affidavit because that was in fact part of the record so in this was at its document sixty one sixty nine dash one in the court's record  test this is paragraph six my testimony would also have given the jury an opportunity to hear from the expert on trauma and how that may have influenced the she has feelings when she did not seek the help of the police given her own trauma history of being sexually abused by her stepfather and the police never protecting her and to get to go on there are several other points she was going to testify how lish she is childhood abuse influenced your decision making that hurt the experts testing of the defendant show that she was suffering from the effects of domestic violence although as an aside the testing also showed that the defendant was milling gring as to the extent of those effects but that's not referenced in this  it and say ok i want if the trial judge said i agree that an expert is appropriate for two reasons to support the dressed offense and to bolster her credibility now let's talk about what i'm going to let him talk talk about and what i'm not going to let the experts talk about what we you know we can't assume that all of this stuff would have come in if the judge had accepted the defense argument that an expert was appropriate for these two purposes and i'll let you talk about what part of it's coming in and what part of it's not coming i think the problem is that on appeal and based on that initial motion to include the expert testimony which was before the expert's report it does sound very objective it sounds as though the expert would say she was diagnosed with this and that's consistent with this kind of behavior but that is that because during the during the multiple hearings where the defense to include this testimony for example on january twelfth this is about month pretrial the defendant defense counsel said as far as the escape ability problem calling it expert on domestic violence violence we're going to call this expert on t v issues and whether the defendant felt a reasonable opportunity to escape so talking about what was going on in this defendant's mind well this is what i was prepared to testify to it doesn't is not the same as as miss lopez or her counsel saying well i don't think she could go that far and you certainly would have raised an objection to this and that might have been properly limited so well  it was excluded entirely yes and we objected because the defense inst continued to say we're going to use this for a subjective purpose for example the defense said on february sixteenth just a few days prior to trial we're going to use the diff expert to talk about her serious history of domestic violence which would have been cumulative and that the expert relies on her evaluation and the disclosure in the case to explain her domestic violence consistent behavior which sounds ok but the but the defense also wanted the expert to come in and watch her testimony which the court said she could do  then said in its last ditch effort to get that expert in without dr karp we're left to try to explain the nature of their relationship without the assistance of a psychologist so talking about the nature of the relationship between the defendant caracas is is is subjective so no the government never said she can only come in to say this is how domestic violence victims behave and the court didn't do that and it was because the defense continued to try to push the bubble and in addition which is which which is which is in my experience is typically what defenses do surya that's that's that's white that's why you're there is to push is to push back the problem that they got excluded entirely right away and sort of is sort of getting to sort of a middle ground where they don't get everything they want you don't get everything you want to a dr karp was just excluded completely well ultimately i think this was harmless because there was jury instruction the defendant testified to all of this herself and yet every time she said anything that went to the dress instruction the prosecutor said that doesn't make any sense that doesn't make any sense and one of the reasons that the defense wanted an expert was to say that sometimes things that people suffering from p t s d do may not make sense and may seem counterintuitive  this expert will help explain that so that you can judge your credibility as a person suffering from p t s d so the exclusion of the expert was only exacerbated by the comments of the prosecutor you're not even just mark you raised t oh oh i'm sorry the last point on the dress again is to emphasize according to the defense theory the duress all occurred on the final day and so an ex again the expert testimony when it was just now turning to the prosecutor statements about that doesn't make sense i really would like to parse those out just a little bit because i don't think you can just say hey the the government set a whole bunch of times that doesn't make sense and so ruin the defendant's credibility the bennett defendant made a number of inconsistent statements during her testimony and like any witness the government is is able to test that credibility and point out inconsistency so the first time the government said that if then it didn't make sense is when the defendant said caracal kept coming back to ask me to tell me he wanted a gun and i kept saying i can't do it i'm on probation i can't i don't want to and the government said does that make sense in other words explain this inconsistency where if if somebody comes keeps coming back to an unwilling participant then they're going to go to somebody else because an unwilling participant is going to call the police it's either your top i want to ask you i apologize the cont absolutely correct and that's an end johnson case where the question of a well grounded fear looks at whether or not the voluntary vulnerability was produced by someone else and here of course the expert was going to talk about the stepfather the police very briefly to address your your question judge rawlinson you have to look at the context of each individual case and in most better when women syndrome cases you have often in fact it usually comes up in the context of a self defense case involving the better it is now seen more broadly or more frequently and arrest cases but the testimony would have been that it is lopez suffers from p t s d and that p t s d was tied to multiple sources so the testimony from from dr karp would have been is that how it was presented to the district court then rather rather than battered women syndrome  record because this is a very important point for me because i could see the district court property exercising its discretion to say that you know we're not going to go from birth to the present day with all of the stressors that this defendant has encountered under a battered women syndrome or directs from this particular person but it's a p t s d type of  three through twelve sixty five and that was the notice from defense counsel of their intent to call  and i would direct the court's attention to especially our twelve sixty five the final page where talks about testimony regarding the specific researched and documented behaviors of victims of domestic violence will assist the jury in determining whether there was a reasonable opportunity to avoid her escape the threatened harm