CHARLESTON - Jurors who convicted Valerie Whittaker of killing Jerry Calvin Mills Jr. should have learned more about the abuse she suffered, according to a May 15 dissent from Supreme Court of Appeals Justice Joseph Albright.
'The jury was wrongly prevented from hearing evidence that might have tipped the scales in favor of Appellant's affirmative defense that she was acting in self defense," he wrote. "The jury was forced to decide whether Appellant acted in self defense without the benefit of all relevant circumstances bearing on her state of mind."
He wrote that just prior to the shooting, Mills threatened to kill Whittaker and her daughter after rolling her daughter like a bowling ball on the floor.
He wrote, "Like many long term victims of abuse, Appellant chose to commit an act of violence as a means of protecting herself and her loved one."
Albright dissented from a 3-2 majority opinion affirming Whittaker's conviction on a voluntary manslaughter charge.
Whittaker shot Mills from 17 feet away in her home. The shot hit him between the eyes.
Whittaker had already served her sentence by the time her appeal reached the Supreme Court of Appeals.
Although three of five Justices upheld her conviction, their decision sounded almost apologetic.
They declared a commitment to "safety, security and dignity of victims of domestic abuse."
Albright called their declaration an empty gesture.
He wrote that the court excluded testimony of defense witnesses Ermajean Hudgins and Debra Fowler.
He wrote, "Incredibly, the evidence that Appellant sought to introduce through Ms. Fowler were statements made on the very day that Mr. Mills was shot."
He wrote that the judge limited the testimony of defense witness Sandra Brinkley so much that the defense did not call her as a witness.
He wrote, "By preventing the jury from hearing what Appellant told Ms. Hudgins, Ms. Fowler and Ms. Brinkley about prior instances of abuse, Appellant was denied the right to lay a proper foundation for establishing her state of mind on the day she shot Mr. Mills."
He wrote that only when jurors have heard a full history of threats and beatings can they evaluate whether a defendant had reasonable grounds to believe she was in immediate danger.