Originally Published: September 2, 2017 5:55 a.m.
PHOENIX — Saying she didn’t get to properly defend herself in court, the state Court of Appeals has ordered a new trial for a Tucson woman convicted of keeping her three daughters locked up for months.
In a unanimous ruling, the judges said Sophia Richter should be entitled to present evidence that anything she did was not voluntary. She contends that she was acting “under duress,’’ too scared of husband Fernando, the girls’ stepfather, to help them.
Nothing in the ruling guarantees that she will escape conviction a second time. In fact, the appellate judges said there is enough evidence to support kidnapping charges.
But the appellate judges, in their decision, threw a new hurdle into the path of Pima County prosecutors, saying it is not her job to convince a jury she was acting under duress. Instead, the legal burden is on prosecutors to provide that her actions were unjustified.
There was no immediate response from the Pima County Attorney’s Office.
The case came to light in 2013 when two of the girls, age 12 and 13, fled the home they shared with their mother and stepfather, running to a nearby house shouting their “stepfather (was) after them with a knife.’’
When police arrived they found another girl, age 17, inside, locked in a bedroom. Officers also found bottles filled with urine throughout the house, video cameras, covered air-conditioning vents in the girls’ rooms, a knife near the master bedroom, and a five-gallon bucket with what the court described as “a rancid smelling pasta mix in the refrigerator.’’
The girls said Sophia and Fernando had taken them out of schools several years earlier, saying they were confined to their bedrooms and could leave to go to the bathroom only by signaling Sophia and Fernando by means of the cameras.
The oldest sister said water in plastic jugs was moldy and the means they were fed twice daily as rancid.
“It was nasty, gagging nasty,’’ she testified.
“We would have to lick our plates if we wanted them clean,’’ she continued. “If not, my mom would just throw more food on it if I didn’t lick it.’’
Both Sophia and Fernando were convicted of three counts each of kidnapping and child abuse. Sophia was sentenced to 20 years in prison. Fernando, also convicted on charges of aggravated assault, was sentenced to 58 years; he lost his own appeal earlier this year.
In her appeal, Sophia complained that Pima County Superior Court Judge Paul Tang, at the behest of prosecutors, rejected her request to testify and present evidence that she acted under duress.
That would include testimony from a doctor that she suffers from post-traumatic stress disorder based on “the many months, if not years of abuse suffered ... at the hands of Fernando.’’ Sophia also sought to present photographs of “numerous scars’’ she said were inflicted by him.
Tang said her bid was essentially a claim of “battered woman syndrome’’ which he said is not allowed in Arizona.
But appellate Judge Garye Vasquez, writing for the unanimous panel, pointed out that Arizona law does allow a criminal defendant to claim he or she was “compelled to engage’’ in the illegal conduct “by the threat or use of immediate physical force against his person ... which resulted or could result in serious physical injury which a reasonable person in the situation would not have resisted.’’
Put another way, Vasquez wrote, a duress defense can justify the illegal act because the perpetrator “avoided a harm of greater magnitude.’’ And the judge said the fact that the actions occurred over a period of time do not invalidate such claims. “Sophia maintained that the threat of physical harm was ‘ongoing,’ ‘’ Vasquez wrote. He said she claims that Fernando “set the rules of the house’’ and that she was abused as evidence by the photos of her knife injuries “if she in any way challenged his authority.’’
He also noted that Sophia offered evidence to rebut the contention by prosecutors that there was no immediate threat because she could have escaped or otherwise alerted someone without risk to herself or her daughters.
Vasquez cited Sophia’s testimony that she was often “tied down and not allowed to leave a certain room or the residence.’’ She also said that while she could go out briefly to go shopping, she was accompanied by Fernando’s mother who was “part of the controlling behavior.’’
Vasquez said he and his colleagues were not setting new precedent.
“Other courts have similarly found that, in these kinds of abuse cases, long and lasting pressure make break down the defendant’s resistance, thereby causing duress,’’ he wrote.
The judge acknowledged that the claim of duress “may be close,’’ Sophia was entitled to make it to the jury and present evidence from the doctor.
That, then, goes to what happens at a new trial, assuming this ruling is not disturbed by the Arizona Supreme Court.
“Contrary to the trial court’s determination, Sophia did not bear the burden of proving that she acted under duress by a preponderance of the evidence,’’ Vasquez wrote.
He said claims of duress are handled the same as claims of justification. And in those cases, Vasquez said, if the defendant raises that claim “the state must prove beyond a reasonable doubt that the defendant did not act with justification.’’