Gendering and racing wrongful conviction: intersectionality, "normal crimes," and women's experiences of miscarriage of justice.

• Author: Webster, Elizabeth
• Position: I. Introduction through III. Contextualizing Women's Patterns of Wrongful Conviction A. Domestic Crime Scenarios 1. Children as the Victims of Women's Crimes, p. 973-1004 - Wrongful Convictions: Understanding and Addressing Criminal Injustice

1. INTRODUCTION

   On the afternoon of Saturday, May 14, 2005, four-year-old Jaquari Dancy died of asphyxiation from "an elastic band that had come loose from a fitted bed sheet." (1) According to the State's case at trial, the boy's mother, twenty-three-year-old Nicole Harris, angered by Jaquari's crying, choked him to death with the elastic band. (2) The evidence supporting this argument rested almost entirely on Harris's inconsistent and recanted confession, a confession that resulted from more than twenty-four hours of intermittent questioning immediately following the death of her youngest son. (3) Harris, who is African American, was found guilty of first degree murder and sentenced to thirty years in prison. (4) She is one of dozens of women who have been exonerated after a wrongful conviction involving the death or injury of a child, (5) with their convictions accomplished through the State's construction of "compelling narratives" (6) that put their motherhood itself on trial. As the prosecutor explained to jurors in Harris's case: "She doesn't stand up for her family.... She's not the mother the defense wants to present to you." (7)

   The day Jaquari died, Harris and the boy's father, Dancy, had left him and his five-year-old brother Diante alone in the apartment for about forty minutes to go to the laundromat across the street, advising the children to stay indoors. (8) When Harris and Dancy returned they found Jaquari outside with some older boys and Diante in the hallway. (9) Harris scolded them and they returned to their room, with Jaquari in tears. (10) Dancy went to take a nap, (11) having worked a double shift the night before. (12) Harris left again for the laundromat to finish drying the family's clothes. (13) As she returned home, she encountered Dancy with a lifeless Jaquari in his arms and together "[t]hey rushed off in search of a hospital." (14) Jaquari was pronounced dead shortly after arriving. (15)

   Harris first encountered police investigators while grieving in the hospital chapel (16) and was escorted to the police station for questioning shortly thereafter. (17) She and her son Diante were taken to what court documents would later refer to as the "quiet room." (18) Painted yellow with butterflies and ladybugs on the wall, it was "a sensitive room used mainly for victims of sexual assaults" (19)--a gendered space signaling comfort for the traumatized, one of many such rooms that have emerged in police stations throughout the United States in an effort to improve police responses to violence against women. (20) This was a ruse in Harris's case. Without Mirandizing her, detectives questioned her for about half an hour with Diante in her lap. (21) They then returned to her apartment to investigate and around midnight a child protective services worker came to take Diante to his grandmother's house. (22)

   When law enforcement returned, now in the early morning hours of Sunday, May (15), they told Harris that her neighbors reported having seen her hit her boys with a belt that day. (23) Now, not only had she left the children unattended to take care of other domestic responsibilities, but she was believed to have used corporal punishment against them. Officers drew from contemporary cultural understandings of appropriate maternal behavior--what sociologist Sharon Hays has dubbed the ideology of "intensive mothering" (24)--and Harris, like many mothers struggling to make ends meet, (25) failed their test. As psychologists Michelle Fine and Lois Weis explain: "[W]hat passes for good mothering, happens in a particular context; a context of money, time, and excess.... [I]n the absence of these, it is far too easy to 'discover' bad mothering." (26) For Nicole Harris, this meant becoming the prime suspect in what police and prosecutors erroneously decided was a homicide.

   According to the State's version of events, after fifteen minutes of questioning, Harris spontaneously confessed that she had strangled Jaquari with a phone cord and then used the fitted bed sheet band to make it look like an accident. (27) After making this statement, she was instructed of her rights and acknowledged that she understood them. (28) According to Harris, however, detectives took her to an interrogation room, handcuffed her, and then began threatening and manipulating her. (29) They left her in the room with a blanket for hours, but she could not sleep. (30) At 2:25 a.m. she agreed to take a polygraph examination that would not occur until 12:45 p.m. (31) According to Harris, the polygraph examiner told her that she had failed the test (in fact, the results were inconclusive) (32) and began screaming at her and calling her a monster. (33) This trope of "monstrous motherhood" is far-reaching in our cultural imagination. (34) For a sleep deprived mother--who had just lost her child and likely internalized blame for what happened (35)--its application appeared to have the desired effect. According to the State, Harris then confessed a second time. (36)

   Neither of these first two confessions comported with the physical evidence. What they did comport with were police investigators' theories of the "crime" as the investigation unfolded. (37) When detectives discovered discrepancies in Harris's second confession as well, they confronted her one last time in the "quiet room," on the evening of Sunday, May 15, after she had been at the station for nearly twenty-four hours. (38) Harris told them that she struck Jaquari with a belt after returning from the laundromat because he would not stop crying, she wrapped the elastic band around his neck until she saw blood coming from his nose, and then she left him on the bottom bunk, returning to the laundromat to collect her clothes. (39) Though the Cook County Medical Examiner's Office initially believed Jaquari's death to be accidental, upon learning of Harris's confession, it changed the cause of death to homicide. (40) It would be nearly nine years after Jacquari's death--and eight years of wrongful imprisonment for Harris--before his accidental death became legally factual, with her receipt of a certificate of innocence in 2014. (41)

   While the Innocence Movement is among the most significant agents of social change in criminal justice policy and practice over the last quarter century, (42) it has been slow to pay explicit attention to women's cases of wrongful conviction, or the ways in which gender might meaningfully shape the types of cases for which women (and men) are wrongfully convicted. This oversight is especially striking given the parallel growth during this same period of feminist criminological and legal scholarship, which theorizes how gender shapes the organization of crime, law, and criminal justice. (43) Several factors have likely contributed to this androcentrism in the movement. Legal scholar Marvin Zalman notes: "The innocence movement that now exists is based in part on research that significantly undermined faith in the accuracy of the criminal justice process." (44) This includes philosopher Hugo Adam Bedau and sociologist Michael Radelet's pioneering 1987 study of wrongful convictions in capital cases, (45) the proliferation of scholarly and legal work following the first DNA exoneration in 1989, (46) and "the cumulative work of psychologists since the 1970s [that] has cast doubt on the unerring accuracy of eyewitness identification." (47) These foci have resulted in disproportionate attention to serious violent crimes involving strangers, and thus disproportionate attention to men. (48) As a consequence, until very recently, our best information about wrongful convictions came from sources that reliably tracked DNA and death row exonerations, systematically overlooking women's cases as a result. (49)

   The fact that this trend has recently begun to change is largely due to the efforts of female exonerees themselves. The Innocence Network (50)--a coalition of legal organizations doing innocence work nationwide--began hosting an annual meeting in 2000...