Across the U.S., survivors of domestic violence and their allies have been closely watching the outcome of a trial seen as yet another bellwether for the way in which people who defend themselves from abusive family members are treated by this country’s legal system.
On October 21, after more than three years of facing murder charges and a 10-day trial, Wendy Howard, a 53-year-old mother and abuse survivor, heard the jury’s verdict.
The Kern County, California, jury found her not guilty of first and second-degree murder, involuntary manslaughter and imperfect self-defense in the death of her ex-partner Kelly Rees Pitts. But jurors deadlocked, seven to five, on the charge of voluntary manslaughter.
That deadlock means that Kern County district attorney (DA), Cynthia Zimmer, can bring Howard to trial again on that remaining charge. The court will hold a hearing on November 18 in which Zimmer’s office will announce whether she will retry Howard.
“The good news is that Wendy got to go home with her family yesterday, without being immediately arrested and sent directly to prison for decades. For this, we are truly relieved,” the Defend Wendy campaign announced in a press statement. But, they added, “this ordeal is not over. The DA’s choice to pursue this trial against Wendy has had devastating consequences for Wendy and her family for over three years after Wendy defended herself from a man who attacked and terrorized her and her family for years.”
The campaign continues to call on Zimmer’s office to drop all charges against Howard.
The Abusive Nightmare That Ended in Howard’s Incarceration
Howard’s nightmare began years earlier. She had met Pitts in 2002. Throughout their relationship, Pitts physically and sexually abused her.
In 2006, he sexually abused Howard’s then-12-year-old daughter Miranda, who reported his abuse to the police. Police investigated and referred the case to the Kern County district attorney, who declined to file charges.
His violence didn’t stop when Howard became pregnant with their daughter Bayley. As Howard testified in court, he beat her with a baseball bat, choked her and attempted to rape her. Later, he tried to sexually abuse Bayley as well.
Even after their relationship ended, Howard remained fearful of Pitts, who lived a few blocks away.
In June 2019, Howard learned about Pitts’s sexual abuse toward Bayley. They called police who began an investigation but cautioned Howard and her daughters to act normally around Pitts.
Days later, Pitts rode to her house on his ATV (or all-terrain vehicle). “I was uneasy that I was in a situation where I had to act normal,” Howard testified in court. “I don’t know how to act normal towards someone who I just found out molested my daughter.”
Eventually, she showed him a photo of him touching her daughter’s breasts. “He started getting that look in his eyes that I’ve dealt with before,” she recalled on the stand. “Like he’s going to a dark place in his mind.”
From her past experiences, Howard knew that look was a warning of impending violence. Pitts began driving toward her, running over her foot. Howard shot him. He died. She was arrested for murder. Her initial bail was set at $1 million; she spent 99 days in jail before the judge reduced the bail amount to $500,000, allowing her release.
The judge also placed a gag order on Howard, her defense attorney and the district attorney’s office, preventing them from speaking to the press. That gag order remains in place.
Anger and Phantom Intentions
Alisa Bierria is a co-founding member of Survived and Punished, a national network that works with and supports criminalized survivors. Along with members of the Defend Wendy campaign, she was in court during Howard’s 10-day trial.
Throughout the trial, Deputy District Attorney Eric Smith attempted to depict Howard as angry and, therefore, not afraid of Pitts.
This is not an unusual tactic, Bierria told Truthout, noting that Florida prosecutor Angela Corey did the same when Marissa Alexander attempted to invoke the state’s stand your ground law in 2012. Alexander had fired a single warning shot at her then-husband Rico Grey who was in the midst of assaulting her. The judge ruled against Alexander, stating that she could have exited her own home instead.
“The DA argued that she couldn’t have been afraid because she was angry,” Bierria recalled. “Painting survivors who act in self-defense as angry and therefore not afraid is a pattern and it’s very effective.”
Leigh Goodmark, director of the University of Maryland’s Gender Violence Clinic and author of Imperfect Victims: Criminalized Survivors and the Promise of Abolition Feminism, agrees. “If you are angry, then you are not afraid and if you are angry that you are not passive, and those are things that we expect of victims,” she told Truthout. “If you can persuade a jury that someone is angry or jealous or drunk or any one of a hundred other things rather than [that they are] afraid as they keep telling you they are, it’s much easier to believe that they’ve taken some kind of offensive action against their partners and justify their prosecution.”
At trial, Howard stated that, during the three days between learning of Pitts’s sexual abuse and their confrontation, she felt a variety of emotions, including fear, anger and despair. But the prosecutor focused specifically on anger, focusing on text messages, and downplaying and dismissing Howard’s other emotions.
“Courts and other systems produce what I call phantom intentions,” Bierria explained. “It’s not just that they impose false intentions onto survivors. In the course of trying to prosecute them, they construct a whole other persona with a whole other set of intentions to make the case that this person deserves to be in prison.”
The Legal Nightmare Continues
On November 18, Howard must return to court to learn whether Zimmer will retry her for voluntary manslaughter, forcing her, her children, and the other survivors who testified about Pitts’s violence to relive those experiences before a jury.
That’s what happened to 53-year-old Michaele Bowers, another Kern County mother who was charged with murder in the 2017 death of her abusive boyfriend. At trial, her defense attorney argued that she shot him after he threatened to kill her and chased her into the bedroom. When her March 2019 trial ended in a hung jury, Zimmer’s office brought her to trial again in February 2020. That too ended in a hung jury.
Going through multiple trials, Bierria noted, “is a kind of torture.” It forces survivors to relive — and re-explain — the many instances of abuse they have endured. It provokes anxiety for them and their family members and racks up thousands of dollars in legal fees. But by doing so, Bierria continued, prosecutors “basically coerce the victim — in this case, Ms. Bowers — into accepting a plea deal. She said she could not do this again.”
This may have also sent a chilling message to Wendy Howard, who sat in court during Bowers’s sentencing.
In its announcement about Bowers’s plea agreement, Zimmer’s office stated, “The District Attorney’s Office is cognizant of how incidents of domestic violence can impact relationships.”
“Once a victim becomes a defendant, it is like a switch flips for the prosecutor and they cannot see the wider context anymore,” explained Goodmark. “They can’t see the victimization of either Wendy Howard or her kids. Nothing else matters for them except this discreet incident. Prosecutors act as though they’ve never had access to any of that other information and continue to not have access to any of that other information.”
Wendy’s Fight Is Part of a Broader Struggle for Criminalized Survivors
“This one story is indicative of a broader crisis,” said Bierria. She noted the importance of defense campaigns, such as Wendy Howard’s and Marissa Alexander’s, in not only supporting the individual survivor but also raising awareness and shifting perceptions.
“My hope is that, with every campaign, the public understands more and more that the criminal legal system is not an advocate for domestic violence survivors,” Bierria said. These campaigns include not only court support, but also public education such as twitter storms, social media outreach and popular education curricula, such as community-based research reports produced by Survived and Punished.
At the same time, she points to the cultural and linguistic shift that a decade of defense organizing has accomplished. “The phrase ‘criminalized survivor’ has been taken up as a more common term,” she said. “The language used to be ‘victim defendants,’ which naturalizes the prosecution of survivors as if there isn’t a system and people working in the system making very specific choices to punish and criminalize survivors.”
Goodmark, whose Twitter handle is “Recovering Carceral Feminist—Ask Me How,” has worked with survivors of gender-based violence for more than two decades. “I don’t have faith that this system will ever treat criminalized survivors, with the justice and the dignity that they deserve,” she said. “That’s what led me to finally become an abolitionist after many years of this work, because I don’t think the system will ever do it.”
As they await her November hearing, the Defend Wendy campaign continues to call for Zimmer’s office to drop all charges against Howard. It also continues to fundraise to cover the mounting costs of Howard’s legal fees.
As Howard’s daughter Bayley told Truthout before the trial started, “This system failed us here.”