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

Author:Webster, Elizabeth
Position:III. Contextualizing Women's Patterns of Wrongful Conviction A. Domestic Crime Scenarios 2. Mothers Held Responsible for Others' Crimes through IV. Intersectionality, "Normal Crimes," and Wrongful Conviction: A Theoretical Framework, with footnotes, p. 1004-1033 - Wrongful Convictions: Understanding and Addressing Criminal Injustice
 
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  1. Mothers Held Responsible for Others' Crimes

    What is particularly striking about these cases is how readily criminal justice officials' tunnel vision narrows in on mothers in attributing blame when a child is harmed or killed, even, as in Earle's case, when the actual perpetrator has confessed. (183) Three cases that are not in the NRE--Tabitha Pollock, Molly Bowers, (184) and Raquel Nelson--provide additional evidence of the power and extremes of mother blaming in women's wrongful convictions. These cases do not meet the definitional criteria for inclusion in the NRE, (185) and in fact appear to be the tip of the iceberg in miscarriages of justice against mothers resulting from the gendered usage of failure-to-protect laws. Though designed as a mechanism to respond to child abuse, "the application of [these] laws is anything but gender-neutral: Defendants charged and convicted with failure to protect are almost exclusively female." (186) Indeed, gender disparities in failure-to-protect prosecutions are so extreme that they cannot simply be explained by women's greater likelihood to be primary caregivers. (187)

    Molly Bowers was convicted in (2007) of reckless child abuse resulting in death and sentenced to sixteen years in a Colorado state prison for the death of her ten-week-old son, Jason. (188) The prosecution's case was that Bowers had failed to seek out timely medical care, which resulted in the baby's death, (189) and not that she had abused the infant herself. (190) Instead, her husband at the time, who spent more time at home with the baby, was charged with the actual abuse. (191) Prosecutors have been criticized for using gendered arguments in attempting to show that Bowers was poorly bonded to her son. (192) For example, during a hearing regarding her appeal these attorneys cited the fact that, during her pregnancy, Bowers had engaged in social events outside of the home before the baby's nursery was fully decorated. (193) They also questioned her practice of doing yoga videos in her home after Jason was born. (194) At the trial, the prosecutor argued: "If she didn't know [of the infant's injuries], why didn't she know? ... Mothers can read the different cries of their babies. They know everything about their baby.... She has shown no remorse for her inaction. Not once has she stood up and said, 'I should have done something.'" (195) Yet, in another Colorado case, Stephanie Rochester, who suffered from an acute case of postpartum depression, killed her six-month-old son in (2010). (196) The baby's father was not charged, even though he was aware of his wife's condition and was home at the time of the incident. (197)

    As striking with regard to Bowers's case, a year after her conviction her husband, Alex Midyette, was found guilty of the lesser charge of criminally negligent abuse when jurors split over the charge of reckless child abuse. (198) Midyette's defense presented expert witnesses who countered the prosecution's theory of abuse by suggesting that the infant had died of a rare metabolic disorder. In addition, defense attorneys argued that there was no outward sign of trauma to the baby, who died with more than thirty broken bones and a skull fracture. (199) Several of the jurors in Midyette's trial were swayed by these arguments, though Bowers herself did not benefit from them. (200) Ironically, her conviction rested on the assumption that she had neglected to seek help when her husband abused the baby (201)--though the basis for this assumption was never proven in court. (202) Midyette was never convicted of physically harming Jason, only of neglecting him. (203)

    The tunnel vision that led prosecutors to pursue their case against Bowers, even in the absence of a conviction for Midyette, is equally evident in the wrongful conviction of Tabitha Pollock. When Pollock's boyfriend, Scott English, killed her three-year-old daughter, Pollock was convicted and sentenced to thirty-six years in prison based on the assumption that she "should have known" English was a threat. (204) As for English, he immediately became a suspect based on his self-incriminating statements; (205) nevertheless, officials continued to focus on Pollock. (206) The cause of the child's death was never seriously under investigation, as it was in the Bowers case, and neither was the identity of the perpetrator. (207) Scott English was tried by jury, found guilty of first degree murder and aggravated battery, and sentenced to life in prison. (208) At Pollock's (1996) trial, the State argued that "[s]he should have known. She should have done something.... [S]he's as guilty as Scott English of murder and aggravated battery of a child." (209) The prosecution sought life in prison for Pollock, but the judge would not allow it. (210) Pollock served seven years of her sentence before the Illinois Supreme Court unanimously overturned her conviction. (211) Shortly thereafter, a commentator pondered "whether some judges, prosecutors and communities ask too much of mothers and are prepared to punish them, even at the expense of the surviving family." (212) Indeed, during Pollock's incarceration she was separated from her remaining children, one of whom was adopted by another family. (213)

    Bowers and Pollock, like Margaret Earle, were held accountable for abuse that their intimate partners inflicted (or were presumed to have inflicted). Mothers have been held accountable for death and injury inflicted by strangers outside the home as well. In 2010, Raquel Nelson, an African American mother of three, got off the bus with her children directly across the street from the apartment complex where they lived in Marietta, Georgia. (214) The bus stop was positioned one-third mile from the closest crosswalk, (215) meaning she would have had to walk well over half a mile out of her way (there and back) with three children and an armload of shopping bags. As other pedestrians crossed from the bus stop, jaywalking, Nelson did too, wrapping the plastic shopping bags around her wrist so she could hold her children's hands. (216) When her nine-year-old daughter crossed ahead of Nelson and her two toddlers, four-year-old A.J. broke free from his mother, entered the roadway, and Nelson ran after him. (217) She and both younger children were struck by a hit-and-run driver, and A.J. was killed. (218)

    Nelson faced an all-white jury who almost never utilized public transportation. (219) She was convicted of reckless conduct, improperly crossing a roadway, and second degree homicide by vehicle for jaywalking, which carried a possible sentence of three years. (220) The driver, who had fled the scene, admitted that he had consumed alcohol that day as well as oxycodone. (221) In addition, he had glaucoma in his left eye--the same side that the pedestrians were crossing from--and had two other hit-and-runs on his record. (222) He further stated that he did not know he had struck anyone, thinking instead that the three individuals he struck had been a post on the side of the road. (223) The driver pleaded guilty and served six months of a five-year sentence. (224) Nelson was sentenced to forty hours of community service and twelve months of probation. (225) Had she received the maximum sentence, she could have served more time in prison than the driver. In a similar Georgia case, Altamesa Walker's four-year-old daughter was killed while jaywalking, and that driver was not even charged. (226) Walker, who is also African American, faced trial for involuntary manslaughter and reckless conduct. (227)

  2. Domestic Crime Scenarios Involving Intimate Partner Abuse

    Though the majority of women's wrongful convictions in domestic crime scenarios involved children (27 of 45, or 60%), (228) a sizeable number involved intimate partners as the victims or presumed victims (14 of 45, or 31%), (229) and the remainder other adult family members (4 of 45, or 9%). (230) All of the women's wrongful convictions in the NRE for crimes against intimate partners were homicides. (231) Surprisingly, only four of these female exonerees had been convicted for self-defensive acts against violent partners or former partners. (232) These included Teresa Thomas, an African American woman who shot her live-in boyfriend in self-defense after enduring months of extremely violent and psychologically controlling abuse. (233) Official misconduct contributed to Thomas's wrongful conviction as well as that of Sandra Ortiz, whose prosecutor argued that her "calm tone" in the 911 call was evidence that the killing was intentional. (234) This interpretation of Ortiz's demeanor parallels criminal justice actors' responses to sexual assault victims, with emotional responses not in keeping with criminal justice actors' expectations used to discredit victims' accounts. (235) In the case of Abere Karibi-Ikiriko, an African American woman, the trial judge excluded a series of correspondence from her boyfriend "showing that he was so desperate to resume their relationship that he was willing to force himself upon her [sexually] at gunpoint," which is what happened on the night of his shooting. (236) Finally, Carol Stonehouse, a white police officer, shot a man she had briefly dated three years earlier, a fellow police officer, after years of extensive "abuse that included death threats, slashed tires, break-ins and stalking." (237) When the Pennsylvania Supreme Court reversed her conviction, it noted that "colleagues in the police department did little to protect [Stonehouse] from Welsh's surveillance, harassment, acts of vandalism and assaults" despite her calls for assistance and reports to internal affairs. (238) Stonehouse's case therefore reveals how insidious criminal justice biases can be, even prior to the incident for which she was wrongfully convicted of murder. This is an example of what sociologist Patricia Yancey Martin calls "mobilizing masculinities" in the workplace, by refusing to hold...

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