Read Herrera: Affidavit of Pablo Stewart text version

AFFIDAVIT OF PABLO STEWART, M.D. I, Pablo Stewart, M.D., declare as follows: 1. I am a physician licensed to practice in California, with a specialty in clinical and

forensic psychiatry. I have extensive clinical, research, and academic experience in the diagnosis, treatment, and prevention of substance abuse and related disorders, including the management of patients with dual diagnoses and the use of psycho tropic medication and diagnostic, treatment, and community care programs for persons with Post Traumatic Stress Disorder. I have written and published numerous articles in peer review journals on topics that include dual diagnoses, psychopharmacology and the treatment of psychotic disorders and substance abuse. I have designed and taught courses on protocols for identifying and treating psychiatric patients with substance abuse histories and have supervised psychiatric residents in teaching hospitals. I have worked closely with local and state governmental bodies in designing and presenting educational programs about psychiatry, substance abuse, and preventative medicine. I received my Bachelor of Science from the United States Naval Academy, Annapolis, Maryland, in 1973, with a major in chemistry. I received my Doctor of Medicine Degree from the University of California School of Medicine in 1982. I have served as Medical Director of the Comprehensive Homeless Center, Department of Veterans Affairs Medical Center in San Francisco where I had overall responsibility for the medical and psychiatric services at the Homeless Center; Chief of the Intensive Psychiatric Community Care Program, Department of Veterans Affairs Medical Center in San Francisco, a community based case management program that is social work managed; Chief of the

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Substance Abuse Inpatient Unit, Department of Veterans Affairs Medical Center in San Francisco, where I had overall clinical and administrative responsibilities for the unit; and Psychiatrist, Substance Abuse Inpatient Unit, where I provided consultation to the Medical/Surgical Units regarding patients with substance abuse issues. I am currently the Chief of Psychiatric Services at Haight Ashbury Free Clinic, a position I have held since 1991. I served as a Physician Specialist to the Westside Crisis Center, San Francisco from 1984 to 1987 and the Mission Mental Health Crisis Center from 1983 to 1984. In addition to my clinical and teaching responsibilities, I have experience in forensic psychiatry. From 1988 to 1989, I was Director, Forensic Psychiatric Services for the City and County of San Francisco where I had administrative and clinical responsibilities for psychiatric services provided to the inmate population of San Francisco. My duties included direct clinical and administrative responsibility for the Jail Psychiatric Services and the Forensic Unit at San Francisco General Hospital. From 1986 to 1990, I was Senior Attending Psychiatrist, Forensic Unit, University of California, San Francisco General Hospital, where I was responsible for a 12 bed maximum security psychiatric ward. One of my duties was advising the San Francisco City Attorney on issues pertaining to forensic psychiatry. I am also serving as medical and psychiatric consultant to the monitors of the agreement between the United States and Georgia to improve the quality of juvenile justice facilities, critical mental health, medical and educational services, and treatment programs. The monitor is the Institute of Crime, Justice and Corrections at George Washington University. I have qualified and testified as a Psychiatric Expert witness in federal court cases regarding the implementation of constitutionally mandated psychiatric care to California's inmate population

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at different maximum security and psychiatric care facilities. I serve as a Technical Assistance Consultant to the Center for Substance Abuse Treatment, Substance Abuse and Mental Health Services Administration, Department of Health and Human Services; and Psychiatric Consultant to the San Francisco Drug Court. In 1985, I received the Mead-Johnson American Psychiatric Association Fellowship for demonstrated commitment to public sector psychiatry and was selected as the Outstanding Psychiatric Resident by the graduating class of the University of California, San Francisco, School of Medicine. In 1985 - 1986, I was the Chief Resident, Department of Psychiatry, University of California San Francisco General Hospital and had direct clinical supervision of seven psychiatric residents and three to six medical students. I have served as an Examiner for the American Board of Psychiatry and Neurology and am a Diplomate of the same Board. I am active in several professional associations and have served as the President, Secretary-Treasurer and Councilor-at-large of the Alumni-Faculty Association, University of California, San Francisco, School of Medicine; Vice President of the Northern California Area, Alumni-Faculty Association, University of California, San Francisco; and Associate Clinical Member of the American Group Psychotherapy Association. I have held academic appointments as Associate Clinical Professor, Assistant Clinical Professor, and Clinical Instructor in the Department of Psychiatry, University of California, San Francisco, School of Medicine, since 1989. I received the Henry J. Kaiser Award for Excellence in Teaching in 1987 and was selected by the graduating class of the University of California, San Francisco, School of Medicine as one of the top ten faculty members for the academic year 1994 - 1995, 1990 - 1991, and 1988 - 1989. I designed, planned and taught "Drug and Alcohol

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Abuse" and "Alcoholism," one unit courses covering major aspects of drug and alcohol abuse; supervised fourth year medical students in the care of dual diagnostic patients at the Psychiatric Continuity Clinic, Haight Ashbury Free Clinic; facilitated a weekly psychiatric intern seminar on "Psychiatric Aspects of Medicine"; and lectured on addictionology and substance abuse to the School of Pharmacy, UCSF. 2. At the request of counsel for William Herrera , Jr., (Junior),1 I conducted a

psychiatric evaluation of Junior in order to determine Junior's mental functioning at the time of the offense for which he has been sentenced to death and to identify the significant factors that influenced his behavior and cognitive functioning over the course of his life. I was asked specifically to address if Junior was under unusual and substantial duress at the time of the offense; Junior's relationship with his father, William Herrera, Sr., (Senior), who was, along with Junior's brother, Mickel Herrera, also convicted and sentenced to death as a codefendant;2 and the presence of other statutory and non statutory mitigating factors. This affidavit is a summary of my findings and conclusions. 3. In order to answer the questions asked of me, I interviewed Junior at the Arizona prison

facility for death sentenced prisoners on March 4 and 5, 2002; his brother Mickel, who is also 1This affidavit will refer to many members of the Herrera-Garza family. In the interest of clarity, people will be identified by their given names rather than surnames. William Harare, Sr., will be referred to as Senior, and William Herrera, Jr., will be referred to as Junior. 2It is my understanding that William Herrera, Jr., (Junior); William Herrera, Sr., (Senior), and Mickel Herrera were convicted and sentenced to death as codefendants for the death of Deputy Vernon Marconnet. Since the original conviction and sentence, however, William Herrera, Sr., and Mickel Herrera have had their death sentences vacated to life imprisonment, and William Herrera, Sr., died in prison due to advanced alcohol related diseases. Page -4-

incarcerated; and his mother, Dolores; and brothers Tony and Alex. I also consulted with Ricardo Weinstein, Ph.D., concerning the results of his neuropsychological assessment of Junior. I also reviewed extensive documents relating to prior legal proceedings for Junior, his father, and his brother, including their incarceration records. I reviewed documentary evidence concerning Junior and his family's social and medical history, including education, marital, medical, and employment history. Numerous affidavits of family members that describe Junior, his family, and family dynamics were also provided to me. These are the kinds of materials routinely relied upon by members of my profession in reaching their opinions. Mental Status 4. My interview of Junior was conducted in a private interview room. Prison officials

required that I wear a padded vest and glasses as routine safety measures required for all contact visits with all death sentenced prisoners, even though Junior has demonstrated no signs of aggressive or disruptive behavior during visits. 5. Junior appeared his stated age of 33, although his mannerisms were very child like and

meek. He was well groomed, was dressed in a prison uniform, and was cooperative throughout the interview. He is mildly obese and below average in height (5'5"). He admitted to past suicidal ideation that resulted in hospitalization and attempts, but stated that he does not want to harm himself at the present time. Junior ruminated about his actions at the time of the offense and expressed deep remorse for his involvement. He acknowledged past episodes of depression, but stated that his feelings of sadness and hopelessness have improved due to the efforts of his attorneys. Considering the circumstances of his incarceration he was euthymic and his affect appropriate to the content of the matter being discussed. His thinking was concrete.

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Junior admitted to having auditory hallucinations, hearing his father call his name. He

had intrusive thoughts about his relationship with his father and the acts of abuse that his father perpetrated on him, his brothers, and his mother. These thoughts are extremely distressing to him, and he demonstrated multiple symptoms of avoidance. He has sleep disturbance and "night sweats" and complained of a "racing heart." Past Psychiatric History 7. Junior was committed to a state psychiatric facility at the age of 16 following a suicide

attempt. He was hospitalized for twelve days and discharged with a diagnosis of Adjustment Disorder with Depressed Mood and Alcohol Abuse Episodic. He has a remarkable alcohol abuse history since childhood and acknowledged that his heavy drinking was an attempt to self medicate the overwhelming emotions he experienced as a result of the trauma he survived at the hands of his parents. He reported symptoms consistent with acute withdrawal if he attempted to go several hours without drinking alcohol. 8. Junior described multiple episodes of black outs that he experienced, after which he had

no memory of events surrounding his loss of consciousness. Family members reported that during adolescence Junior had numerous "fits" and "attacks" that are consistent with alcohol related seizures. According to them, Junior fell to the ground, shook and jerked uncontrollably, and had spittle around his mouth. After the shaking subsided, Junior slept. Upon awakening, he had no recollection of the event. Family members reported that Junior's brother, Alex, also demonstrated these symptoms. Family members attribute these seizures to battles with the devil over their souls. 9. At the time of his offense, Junior's daily consumption was at least one case of beer and

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10 marijuana cigarettes. Upon arrest, jail medical staff placed him in restraints and medicated him with Librium and thiamide, a common treatment for alcohol withdrawal delerium. Jail medical staff also treated him with a regimen of anti anxiety medication. After admission to death row, Junior suffered episodes of depression and attempted suicide. He responded positively to anti-depressants (Imipramine, Zoloft), and his depression resolved. At the present time, he is not receiving any medication. Medical History 10. Junior has numerous scars on his body from self inflicted injuries and assaults by his

father. Both wrists have scars from razor slashes, and he has several puncture wounds on the right side of his neck from suicide attempts. He has a scar on his right elbow joint from a stab wound inflicted by his mother when he attempted to protect his father from her attack. He has a scar on his upper left shoulder from a stab wound by his father when Junior attempted to protect his mother from an attack by Senior. He has chronic lower back pain which he dated to an assault by his father when Junior was a teenager. Junior's father, according to Junior, attacked him with a bat-like object and beat him across his back. Junior also has chronic pain in the joints of his arms, which he attributed to assaults by his father with a two by four. He sustained numerous blows to the head by his father and lost consciousness from the blows. 11. A PPD (exposure to tuberculosis) was positive in 1992, and he was placed on a regimen

of INH 300 mg for six months. He has a history of severe headaches, bilateral temporal, twice a week and unresponsive to ibuprofen. The pain is so severe it causes him to cry and bang his head against the wall. He has been diagnosed with anal warts, with onset during adolescence; his

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father and brother's medical records revealed they have also been diagnosed with anal warts. He has had chronic epigastric pain since childhood. In 1993, he had a left inguinal hernia which was repaired surgically. Junior also has a history since childhood of banging his head and back and rocking to comfort himself. Family History 12. Junior is one of four sons born to William Herrera , Sr., and Dolores Garza, both of

whom were Mexican American farm workers born to large families and reared in rural west Texas. Senior was forced to withdraw from school in the fifth grade to support his mother and his siblings following their abandonment by his father. Senior worked as a farm hand and laborer, and was seriously injured as a young man in a farm accident. He had multiple surgeries to correct the injuries he sustained in the accident and to repair damage to his organs caused by severe alcoholism. 13. Junior's mother, Dolores, who has since tested in the mental retardation range, was also Dolores and Junior met when their families moved

unable to complete elementary schooling.

next door to each other. Three siblings in the Garza family married or established common law relationships with three siblings in the Harare family. 14. Junior's family has a multigenerational history of alcoholism and severe interpersonal

violence. Senior's father battered Senior's mother, abandoned the family, encouraged his sons to drink, and instructed his sons to batter their wives. Dolores' mother and father also physically battered their children. Family members reported that they do not remember a day that Senior was sober other than during his hospitalizations. Senior drank beer and wine with

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high alcoholic content such as Mad Dog 20 20 and Thunderbird. Senior did not heed medical warnings about the dire consequences of his drinking, and was hospitalized over ten times for alcohol related disease before dying of alcohol related disease at the age of 53. Three adolescents in Dolores' family, who were Junior's cousins, committed suicide by hanging. Junior and his brothers witnessed Senior's attempt at suicide when he drank rubbing alcohol, lost consciousness, and had to be hospitalized. Junior also attempted suicide on multiple occasions. 15. At the time Dolores began to live with Senior, she had given birth to two daughters who

were being reared by their father's family and was pregnant with a son, Antonio (Tony). After Tony's birth, Junior was born May 1, 1968, followed at close intervals by Mickel, Ruben, and Alexander. As the oldest child in the home, Tony assumed parental responsibilities for Junior and his siblings when Dolores and Senior did not. Senior was intoxicated throughout Junior's childhood and his presence was unpredictable. He came and went without regard for the children's needs. Dolores was more stable and loving, but was absent long hours at a time because she worked two jobs. She also disappeared for days at a time, leaving the children unattended by any adult when Tony was as young as seven years old. 16. The relationship between Dolores and Senior was chaotic, unstable, and fraught with

danger for children living within its sphere. Junior's mother drank during her pregnancy with Junior and was physically assaulted numerous times by Senior. Junior was born two months prematurely. Senior physically assaulted, threatened to kill, and attempted to kill Dolores in the

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children's presence. Junior's earliest childhood memory is seeing his mother in bed, beaten and bruised by his father, with Tony trying to fix cereal for Mickel, Junior, and Ruben. Senior, a large man, attacked Dolores, a small woman, with his fists, kicked her, strangled her, stabbed her, threatened to shoot her, and threatened to run her over with the car. Junior attempted to protect his mother during these assaults but was too young and small. Junior's father stabbed him when Junior interrupted one such fight. During another attack, this one by his mother against his father over Senior's infidelity, Junior attempted to protect his father, and his mother stabbed Junior. 17. Dolores attempted to end the relationship following a particularly brutal assault by Senior

on Junior in the middle of the night. Senior attacked Junior, hitting him on the elbow with a two by four while Junior slept. Local authorities found out about the attack and investigated Senior. Senior became enraged and told Junior, "I should kill you" and threw Junior to the floor. Junior thought he was going to die. The next day, Senior returned to the house and beat everyone, including Dolores. Dolores took the children and hid, but Senior found her. Although they never lived together in a common law relationship again, Senior dominated the family's life and controlled them through terror and coercion. The boys, with the exception of Alex, were shipped back and forth between Senior and Dolores; Alex remained with his mother. Junior and Mickel were torn between their parents and feared for the safety of both when they were separated. Junior feared that his father would hurt himself intentionally or accidentally without Junior to care for him. After several months with his father, however, his father's abuse became too overwhelming and Tony would rescue Junior and his brothers. Junior returned home to live with his mother for a few weeks or months until his father demanded Junior's presence. Senior

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forced compliance with his demands by threatening to kill himself or to kill Dolores. After Dolores stopped her common law relationship with Senior, Senior followed Dolores wherever she moved to find safety and disrupted her and her children's lives. 18. The relationship between Junior and his father was based on coercion and duress. Junior

was subjected to prolonged, repeated trauma throughout his life. His father threatened to kill him, beat him with two by four's, hit him with a wrench and hammer, battered him with his fists and pipes, whipped him with electric chords, kicked him, slammed him into the walls, and threw him across rooms. Junior feared for his life and was seriously injured during these attacks, lost consciousness on more than one occasion, and sustained burns, bruises, cuts and broken bones. When Junior turned 15, his father escalated the violence against him and stabbed him. After his father stabbed him, Junior began to fear with certainty that his father would next shoot him. These assaults were unpredictable and came without provocation. Senior hit Junior daily. Senior routinely attacked them with a two by four as they slept at night. Senior bought wood and stacked it in the yard for the sole purpose of beating Junior and his siblings. He often awakened them in the middle of the night, lined them up, and hit them. Senior broke Junior's nose by punching him in the fact with his fist. Senior hit Junior so hard Junior lost his breath, and on more than one occasion, lost consciousness. 19. Senior designed and imposed brutal punishment for Junior and his brothers, but singled

Junior out for the worse treatment. He made the brothers stand on their toes against the wall and placed tacks under their heels. He made them burn the soles of each other's feet with matches. He made them kneel on their knees for hours at a time and did not allow them to move from the

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position for any reason, including to urinate. He made them eat raw, hot chili peppers before they were allowed to eat regular food. Senior told them he was teaching them how to act like men. He enforced a strict code of respect for his position as father and punished the boys brutally if they failed to show proper respect, as Senior defined it. Senior made the boys sit in the room with him, but did not allow them to talk. If they spoke, they were beaten. He made them rake the dirt yard around the house and keep it immaculate. If he found a footprint in the dirt, he beat the boys. 20. Senior employed an array of coercive techniques to control and abuse his sons. Junior

and his brothers believed that Senior would kill them if they disobeyed him. Senior repeatedly told Junior he would kill Junior if Junior was a homosexual or if Junior "did him wrong." There was no doubt in Junior's mind that Senior would kill him. He isolated the children from peers and community by prohibiting any contact between his sons and others. He did not allow them to develop and form friendships, participate in extra curricular activities, or join in community events. Senior did not allow the boys to play outside the home, invite friends to the home, or visit friends in their home. He degraded Junior by taunting him for not being worthy of the honor of the name Junior and threatened to take Junior's name from him. Senior forced the boys to assault and injure each other and then punished them for assaulting each other. He deprived the boys of basic bodily functions, such as urinating, and forced them to perform life threatening physical endurance tests, such as running miles in the desert without water or rest. Senior made the boys run in front of the car for protracted periods of time. Junior and his brothers feared that their father would kill them by running over them from the rear. Senior also made the boys run

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behind the car as he drove it for miles through the desert. Junior feared that his father would leave them in the desert to die. 21. Senior used alcohol to corrupt and control Junior and his brothers. Senior began to feed

his children alcohol when he put beer in their baby bottles. By the time they were two years of age, he gave them "ponies," small bottles of beer to drink when he took them for rides. He gave them beer to drink after he beat them. He took money they earned and spent it on beer for himself and forced them to drink beer. He beat and ridiculed Junior if Junior did not want to drink. He encouraged Junior to stay home from school and go with him to bars to drink. He derided Junior's job at McDonald's and told him they did not pay enough to justify working. Senior told Junior to drink in order to be a man. 22. Senior engaged in a persistent pattern of sexually inappropriate behavior that violated his

sons' physical integrity and self respect. He forced Junior and his brothers to be entirely subservient to his whims and needs, regardless of boundaries of basic decency. He forced Junior and his brothers to follow his every order. Junior and his brothers described their relationship with their father as that between slave and master. Senior forced his sons to clip his toe nails, to put his socks on Senior's feet, to fetch him water, and to bring him beer. He forced them to massage him (clothed and unclothed) for hours at a time as he lay on a bed. He touched and fondled them inappropriately and told them it was part of their instruction on how to be men. Senior, Junior, and Mickel contracted anal warts before their imprisonment. Senior always had a knife and "pulled it out in a heartbeat." He often sat with the knife opening and shutting it, an act which instilled terror in Junior.

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Junior's Education 23. Junior's academic performance fell behind his peers. Dolores reported that teachers

explained to her that Junior was handicapped, but she did not understand its meaning. School records show that frequent moves and family instability interrupted Junior's education. According to school personnel, Junior's parents "were not very cooperative in trying to help us help them." Junior remembered school positively as a safe place that was sanctuary from his father's assaults for the most part. On one occasion, however, Junior's father came to the school armed with a handgun and removed the children from classes without notice to school authorities or Junior's mother. The father fled with the children and did not inform their mother of their whereabouts. Standardized testing showed wide disparity in his scores, and he routinely tested below grade level. He spent three years in the sixth grade before being promoted to the seventh grade. One of Junior's teachers noted that he followed directions. Another teacher commented that he "enjoyed teaching him" and that William "was a good boy." Relationship with Father 24. Junior was subjected to the totalitarian control of his father throughout his life and

developed characteristic responses to the terror, violence, isolation, intermittent reward, and enforced dependency that filled his life. Junior became submissive and compliant and ultimately betrayed his own basic human attachments. Senior dominated Junior in all aspects of Junior's life. Junior lost his own autonomy, initiative, and judgment as his world become increasingly constricted. Junior believed that by being more obedient Senior would not hit him as hard. Junior thought that if he were super obedient, the severity of the beatings would decrease. Senior beat Junior until he was exhausted, fell asleep, and awakened to beat Junior again.

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Junior and his family believed that Senior was omnipotent and had extraordinary powers.

Junior knew that Senior was armed and "had weapons." Junior and the rest of the family believed that Senior "could do anything he wanted whenever he wanted," according to Tony. Alex reported that the boys "never stopped doing what [Senior] told them out of respect." They respected Senior "because he was the father." Alex stated there "was no way not to do what [Senior] said." Junior said that Senior's "word was law" and he "did not question" Senior. Junior reported that he was "programmed" to do whatever his father ordered. His father forced Junior to violate Junior's own sense of morality and commit minor offenses such as vandalism or shoplifting. Junior was ashamed and humiliated by these deeds, but never questioned whether or not to follow his commands. Mickel explained that the "thought never came to mind to "challenge" him or "not do what he said. You would have said someone is crazy to suggest otherwise." 26. Junior's relationship with his father was defined by the abuse his father perpetrated on

him, reinforced by deeply imbedded cultural values that promoted profound respect for the father and his role in the family. These values can be positive, but can also become pathological when exploited and distorted by a perpetrator like Senior. Junior and his brothers did "anything to keep [Senior] happy." They did "whatever [Senior] said" without question. They automatically obeyed their father out of fear and unquestioning respect. 27. The threat of annihilation was the single most significant factor in Junior's development.

He and his brothers were preoccupied with trying to please their father and protect themselves from his wrath. They lived in a constant state of hyper arousal aimed at survival. Junior and his

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brothers were always scared when they were around Senior because they did not know when he would snap. They stayed out of their homes to avoid any contact with Senior. They stayed late after school to avoid encounters with Senior. If Senior was in the front yard, they tried to stay in the back yard. Since their father did not allow them to leave the home for normal childhood activities, they were unable to minimize their exposure to him. They tried to be invisible, silent, and not present even when they were physically present around him. They were attuned to the sound of his car and stayed alert to hearing it come down the road so that they could hide from him. They enlisted a neighborhood child to stay alert and warn them when his car approached. They listened for the sounds of his footsteps. They hid under the bed and fled out the window to try and avoid his attacks. They slept in extra clothes to try to protect their bodies from the blows he delivered at night. Mickel reported they "were always jumpy and on the lookout." 28. Junior and his family believed that Senior was omnipotent. Junior unrealistically

attributed total power to Senior and referred to him as "Diablo." Dolores literally believed and taught Junior and his brothers that Senior was the embodiment of the devil. The boys "felt his presence" even when Senior was at work, according to Mickel. Junior described his fear of going into the house when no one was home because he thought the devil was in the house. At eight and nine years of age, Junior was frequently afraid someone was in his room and his heart raced. He had nightmares that awakened him and his brothers as a child. Junior continues to hear his father's voice. When Junior hears his father's voice, "it brings it all back" and Junior thinks Senior's "there and ready to jump" him. He experiences his father's presence

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"hiding in dark corners waiting to attack" him. Junior also "smells" his father's presence. Junior also has vivid nightmares of his father's assaults on him and the family and his father's control of him. 29. Junior attempted to quell the overwhelming emotions he experienced as a child and

adolescent by drinking alcohol and smoking marijuana. His initial use of alcohol was at the insistence of his father, but by the age of twelve, Junior recognized that he had withdrawal symptoms of headache, nausea, and shakiness if he did not drink. Junior began to "daze off" and "go away" mentally so that he could tolerate inhuman levels of pain when his father beat him or forced him to engage in painful activity. Whenever Senior saw Junior "dreaming," Senior hit Junior. Senior became more violent when he thought Junior was mentally escaping. Senior would say, "you're in the clouds" and hit Junior. As the boys grew older and became bigger, Senior launched surprise attacks on them and "sucker punched" them when they were not prepared to defend themselves. Consequences of Trauma and Abuse 30. The kind of prolonged abuse that Junior survived constitutes extreme duress and breaks

the bonds that children need to develop into healthy adults. It caused Junior to relinquish his autonomy, moral principles and relationships with others for the sake of his and his family's survival. He developed an insidious progressive form of posttraumatic stress disorder that controlled and constricted his entire life. Junior, like other chronically traumatized people, became hyper vigilant and lived in a state of constant arousal, acutely tuned to follow any command of his father's. He persistently re-experiences the totalitarian control of his father in nightmares, olfactory and auditory hallucinations, recurrent and intrusive distressing

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recollections of the abuse, and physiological responses to memory of the abuse. He actively attempts to avoid these distressing experiences by training his mind to "go away" when the thoughts appear and by drawing and physical exercise. As a child and young adult, he ingested copious amounts of alcohol to suppress the terror and anxiety associated with the abuse. Junior was and is hyper vigilant to sounds, sights, and smells that might result in harm. He is in a perpetual state of arousal that interferes with his functioning. This disorder is long-standing and chronic. 31. The long term consequence of surviving terror at the hands of his father has resulted in

numerous alterations in Junior's behavior and functioning that are recognized in psychiatry as the sequella to trauma. He has experienced persistent depression, chronic suicidal preoccupation, and self injury. He has frequent transient episodes of altered states of consciousness. He is preoccupied with his father's relationship with him. He has deep feelings of shame, guilt and self blame. He believes that his father had total and supernatural power over him and his family. Junior developed a profound send of hopelessness and despair, a foreshortened sense of future, and an enduring sense of worthlessness. Conclusions 32. It is my professional opinion, which I hold to a reasonable degree of medical certainty,

that William Herrera, Jr., was under unusual and substantial duress when he participated in the events that led to the death of Officer Marconnet. His capacity to conform his conduct to the requirements of the law at the time of his offense and to appreciate the wrongfulness of his conduct was substantially impaired. The extreme duress he experienced is the direct result of

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his ongoing relationship to his father. Junior had a present, imminent and pending fear of death or serious bodily harm at the hands of his father and a reasonable belief that he could not escape his father's control. Junior and his family had attempted and failed to escape his father's control and injurious assaults on numerous occasions in the past and had failed. They been severely beaten and threatened with death if they attempted to escape from him. Junior's history of subjection to totalitarian control by his father and his reasonable fear of his father deprived him of the sense of autonomy that allows independent action and the ability to choose a course of action . At the time of the confrontation, Junior responded to his father's commands without plan, thought, or recognition of the consequences of his actions. He harbored no intent to kill or malice for the officer, and his actions were taken without premeditation or understanding, knowledge about the difference between right and wrong, or awareness of the risks to others of his behavior. 33. I have been asked to offer my opinion about Junior's intoxication at the time of the

offense. Medical records, physical evidence, and statements by Junior and his brothers and sister in law indicate that Junior was intoxicated at the time of the offense, secondary to the chronic symptoms of post traumatic stress disorder he experienced. Junior and his father had been drinking beer all day, as was their custom. He also smoked marijuana on that day as well. At the time of their arrest, Junior was placed on medication for acute alcohol withdrawal. It is my professional opinion, which I hold to a reasonable degree of medical certainty, that Junior was intoxicated at the time of the offense. The intoxication exacerbated Junior's underlying mental impairments and further eroded his ability to understand and conform his conduct to that required by the law.

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March 10, 2002

________________________ Dr. Pablo Stewart

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Herrera: Affidavit of Pablo Stewart

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