Parent to Use Spousal Fear in Her Defense

Six months after her conviction in the beating death of her 2-year-old daughter was overturned, Gabriela Hernandez is preparing for a new trial and a new defense.

Unlike the first trial, Hernandez’s attorneys will argue that she was a battered woman so paralyzed by fear that she could not stop her husband Rogelio from killing their daughter, Joselin.

Hernandez’s second trial will be closely watched. The condition known as “battered-woman syndrome” has been used in the defense of women who kill their husbands, but rarely in cases in which women face charges in the death of their children.

Speaking from the Sheriff’s Honor Farm in Ojai, Hernandez, 23, said recently she was encouraged at getting the chance for a new trial, scheduled to begin in early March. “I feel like something good could happen,” she said. “I don’t want to get my hopes up, though.”

An appellate court threw out Hernandez’s murder conviction in August, saying the judge in her case should not have barred testimony from experts on battered-woman syndrome. That condition could have explained why Hernandez failed to protect her daughter, the appellate justices said.

“The evidence would have supported Gabriela’s argument that she did not intend to facilitate Rogelio’s abuse of Joselin or place her daughter in danger, but perceived no option other than remaining silent,” the ruling stated.

Joselin died in June 1996 after being hit in the stomach so hard that her intestine severed. The autopsy showed that she also had burns, bruises and broken bones at the time of her death.

Two years later, a jury convicted Rogelio Hernandez of first-degree murder, torture and multiple counts of child abuse. Gabriela was convicted of second-degree murder and fatal assault of a child.

Battered-woman syndrome is a condition that psychologists believe causes high anxiety, low self-esteem and learned helplessness in victims of continued abuse. The batterer often cuts the woman off from the outside world, and controls and intimidates her to a point that she can’t think clearly.

Some attorneys discredit the syndrome as an excuse, but domestic violence advocates say it helps jurors understand why a woman cannot protect her child.

“It’s so easy to vilify that woman,” said Sue Osthoff, director of the National Clearinghouse for the Defense of Battered Women. “But in cases like these, it’s important for the jury to understand the true terror the batterer can inflict.”

Deputy Dist. Atty. Dee Corona said she believes that some women do suffer from battered-woman syndrome, but doesn’t believe it played a role in the Hernandez case.

“Battered-woman syndrome is a legitimate condition, but I don’t think every woman suffers from it if she is in a dysfunctional relationship,” Corona said. “I don’t think Gabriela Hernandez’s condition, if she had one, prevented her from being able to save her child.”

Defense attorneys plan to bolster the expert testimony in Gabriela’s new trial with accounts of witnesses who said they saw Rogelio beat her.

A friend who lived in the same house as the couple testified in the first trial that he saw Rogelio punch and kick Gabriela on several occasions. Gabriela’s father said he saw his daughter with injuries while she was pregnant with Joselin.

James Farley, Hernandez’s new attorney, said Rogelio would not allow Gabriela to go out by herself and wouldn’t allow her to be alone with her parents or friends. He belittled her and constantly told her she was worthless and no good, he said.

“We know she was frightened to death of this man,” Farley said. “We know this man was a brute. Gabriela had very little she could do.”

Her culture and background of abuse also contributed to her inability to act, defense attorneys will argue. While growing up in Mexico, Gabriela was molested and raped by two uncles, according to court records.

And in America, where she was an undocumented immigrant, Gabriela Hernandez had a fear of the authorities, Farley said. She worried that if she sought help, she would be deported or she would lose her children. “She really had nowhere to turn, she was really lost,” he said. “She was a prisoner in there.”

When Joselin was 6 weeks old, she was taken away from her parents after doctors discovered the infant had suffered burns, bruises and broken bones. The next year, Joselin arrived for a long visit at her parents’ house, a converted garage behind an Oxnard grocery store. For the next three months, friends and social workers saw burns, bruises and cuts on the girl, witnesses said in court.

In June 1996, the Hernandezes took Joselin to a birthday party, where she vomited and collapsed. Gabriela tried to perform CPR while others called an ambulance. Joselin died that night. Both parents were arrested soon after on suspicion of fatally abusing their daughter.

In the first trial, prosecutors argued that Rogelio tortured his daughter while Gabriela stood by. “Both the defendants are responsible for burning, biting and breaking and finally destroying a precious little girl,” Corona said.

After sentencing Gabriela to 15 years to life, Superior Court Judge James Cloninger said she could have stopped the abuse of Joselin by speaking up.

“She never did that,” Cloninger said. “And she will have to live with that the rest of her life.”

Farley said the appellate court was right to overturn Gabriela’s conviction, throwing out all counts against her.

“The writing was on the wall for a reversal,” Farley said. “This is a second chance. I’m just glad the appellate court looked at this and said this is wrong.”