Jay Leiderman
By: Jay Leiderman
December 29 2016

Petitioner fits the applicable legal standards for duress.  “[T]he leading California case regarding the applicability of the duress defense to a charge of prison escape [is] People v. Lovercamp (1974) 43 Cal.App.3d 823[.]” (People v. Pena (1983) 149 Cal.App.3d Supp. 14, 22.)  Lovercamp is similar to our case in a number of respects.

“Defendant and Ms. Wynashe were inmates of the California Rehabilitation Center. They departed from that institution and were promptly captured in a hayfield a few yards away. At trial, they made the following offer of proof:

“They had been in the institution about two and one-half months and during that time they had been threatened continuously by a group of lesbian inmates who told them they were to perform lesbian acts — the exact expression was “fuck or fight.” They complained to the authorities several times but nothing was done about their complaints. On the day of the escape, 10 or 15 of these lesbian inmates approached them and again offered them the alternative — “fuck or fight.” This time there was a fight, the results of which were not outlined in the offer of proof. After the fight, Ms. Wynashe and defendant were told by this group of lesbians that they “would see the group again.” At this point, both defendant and Ms. Wynashe feared for their lives. Ms. Wynashe was additionally motivated by a protective attitude toward defendant Lovercamp who had the intelligence of a 12-year-old. It was represented that a psychiatrist would testify as to defendant’s mental capacity. On the basis of what had occurred, the threats made, the fact that officials had not done anything for their protection, Ms. Wynashe and defendant felt they had no choice but to leave the institution in order to save themselves.”

(43 Cal.App.3d 823, 825)

To that end, the fact that the court was believed to be part of the urgency that caused petitioner to flee causes his case to be different than other cases about successive petitions and forfeiture of appellate rights.  (See, e.g.; People v. Kubby (2002) 97 Cal.App.4th 619.)  In that case “defendant failed to surrender for commitment as ordered. Defendant claims that he is residing in Canada for health reasons because incarceration without access to medical marijuana to treat his adrenal cancer would be life threatening.” (97 Cal.App.4th at 622.)   Kubby had access to alternate avenues of potential relief, including taking conventional medicines, or even trying to get medical marijuana in jail, but chose not to avail himself of them.  No discussion of whether Kubby was actually in a life-threatening situation because of a denial of medical marijuana was even present in the opinion.

Duress can be an affirmative defense to certain crimes under certain sets of facts

From Wikipedia:

In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black’s Law Dictionary (6th ed.) defines duress as “any unlawful threat or coercion used… to induce another to act [or not act] in a manner [they] otherwise would not [or would]”. Duress is pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law and from necessity.

Duress has two aspects. One is that it negates the person’s consent to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense or justification to an otherwise unlawful act. A defendant utilizing the duress defense admits to breaking the law, but claims that he/she is not liable because, even though the act broke the law, it was only performed because of extreme unlawful pressure.  In criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability, so that if the defense is not accepted then the criminal act is admitted.

One thought on “Duress

  1. Duress
    Unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform.
    Duress also encompasses the same harm, threats, or restraint exercised upon the affected individual’s spouse, child, or parent.
    Duress is distinguishable from Undue Influence, a concept employed in the law of wills, in that the latter term involves a wrongdoer who is a fiduciary, one who occupies a position of trust and confidence in regard to the testator, the creator of the will.
    Duress also exists where a person is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition.
    As a defense to a civil action, the federal Rules of Civil Procedure require that duress be pleaded affirmatively.
    Except with respect to Homicide, a person who is compelled to commit a crime by an unlawful threat from another person to injure him, her, or a third person, will generally not be held responsible for its commission.

Leave a Reply

Your email address will not be published. Required fields are marked *