Parent to Use Spousal Fear as Defense in Baby’s Death

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.”

Gabriela met Rogelio when she was 12 years old, and moved in with him soon after her 15th birthday. The next year, in 1994, she gave birth to Joselin. The couple gave the girl the middle name Amor, the Spanish word for love. They also had a son, Rogelio Jr.

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.

Defense attorneys argued that the couple were young and ignorant, but that they didn’t mean to harm the child. They told jurors that the Hernandezes relied on nontraditional forms of medicine that contributed to Joselin’s health problems. And they blamed social workers for failing to protect Joselin, who was supposed to be under their watch after previous abuse.

Gabriela’s first attorney, Bill Maxwell, said his client never struck the child and was too scared of her husband to protect the toddler. “She tries to protect their child and he beats her,” he said, adding there were times when the mother tried to get Joselin medical help but was stopped by her husband.

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.”

Gabriela Hernandez said in a 1997 interview with The Times that she contemplated leaving, but changed her mind because she thought the beatings would end. She said she tried to stop Rogelio--who is serving 42 years to life in prison--from hurting their daughter, but he just became more violent.

“I didn’t want my children to be without a father,” she said. “And I always thought he would change.”

Hernandez’s psychological tests showed that she was submissive and vulnerable to manipulation. She told psychologist Sandra Baca that Rogelio abused her regularly and kept her isolated from family and friends. She also acknowledged having stomach problems and flashbacks, symptoms Baca said could be related to traumatic stress.

“Clearly, Mrs. Hernandez has not conformed to the preconceived notions of how society expects mothers to behave,” she wrote. “Mrs. Hernandez believed that in order to avoid further violence to Joselin, she had to comply with [Rogelio’s] explicit or implicit demands.”

Psychologists and domestic violence advocates have testified on behalf of hundreds of battered women on trial for homicide, with varying success. Some attorneys, including Harvard professor Alan Dershowitz, believe that battered-woman syndrome is an “abuse excuse” that enables women to get away with murder.

Baca said in a recent interview that she doesn’t know what effect battered-woman syndrome testimony will have on jurors. It may provide them with a context for Hernandez’s actions, but it won’t completely explain why she couldn’t protect her daughter, she said. “When juries hear it, it makes them think,” she said. “But at the same time, it leaves them with no answers.”

Deputy Dist. Atty. Corona said during the first trial that Gabriela Hernandez made a choice to stay with her husband and to keep her child in a dangerous situation. She never went to a domestic abuse shelter, never called police, never sought medical help for herself and avoided social workers.

“It’s fairly obvious that Joselin was tortured every day of her life while she was in the care of her parents,” Corona said recently. “The only person who was in a position to save her was her mother.”