Curry

I. Background.

A. Trial.

Frank Butler was tried in California state court for an assault on his former wife, Daria Butler. At trial, the Butlers provided conflicting accounts of the assault. The judge’s find- ing with regard to one of the aggravating factors turned, to some degree, on whose story was believed.

1. Daria testified:

She and Butler married in 1989 and had two children together, Barbara and Laquan, prior to their divorce in 1993. Her fights with Butler had been physical in the past, and she had hit him on more than one occasion. Daria had obtained at least three restraining orders against Butler, and she and But- ler had repeatedly ended their relationship. In the summer of 2000, they reconciled once again, and Daria drove to St. Louis to pick up Butler and bring him back to California. Sev- eral months after Butler’s return to California, Daria and But- ler separated once more, and Daria obtained a restraining order against Butler, still in place at the time of the June 28, 2001 incident. The Butlers reconciled yet again in January or February of 2001 and were living together, with their two children, at the time of the assault.

In 1977, Daria was in an…