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

I. 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, attended by increasing numbers of exonerated men and women. (51) Amidst the dozens of male exonerees, the few women who regularly came began seeking each other out to discuss their unique needs and legal challenges, and how their experiences might differ from those of male exonerees. (52) A core group of women formed, (53) and in 2010 they hosted the Women and Innocence Seminal Conference. (54) Their efforts coincided with emerging media interest in women's exoneration cases, motivated in part by concern over the integrity of so-called shaken baby syndrome (SBS) convictions. (55) Medical experts challenging the science used to diagnose SBS were helping to overturn a small but growing number of wrongful convictions involving mothers or female caregivers. (56) Taking note of these developments, several attorneys at the Northwestern University School of Law's Center on Wrongful Convictions started the Women's Project in 2012, in order to better represent female clients with claims of innocence, encourage research on women's wrongful convictions, educate the public on the issue, and monitor upcoming cases. (57)

Another significant change is the development of the National Registry of Exonerations (NRE), a joint project of the University of Michigan Law School and Northwestern University School of Law's Center on Wrongful Convictions. (58) Launched in 2012, the NRE tracks exonerations nationwide, posts case profiles, and records data about exonerations occurring since 1989 (the year of the first DNA exoneration). (59) The NRE profiles all exonerations--whether DNA or non-DNA, death penalty or otherwise--allowing a broader picture of the phenomenon and the first-ever comprehensive data source on women's wrongful convictions. (60) Nicole Harris is one of 126 women whose case information is now available in the NRE. (61)

Harris's case clearly typifies several of the case processing factors that have been identified as contributing to wrongful convictions across gender: official misconduct, a false confession, and inadequate legal defense. (62) Yet, the process by which her son came to be misidentified as a homicide victim--and she his killer--was also clearly influenced by criminal justice actors' cultural assumptions about gender and race, in particular the ways in which ideas about proper mothering facilitated the "tunnel vision" that occurred in her case. Numerous scholars of wrongful conviction have begun to theorize the significant role of tunnel vision in wrongful convictions. In their ambitious effort to predict erroneous convictions, legal scholar Jon Gould and his colleagues propose that tunnel vision is a " [q]ualitative [f]ramework of [s]ystem [f]ailure" (63) especially useful for understanding how such cases come about, explaining:
   Tunnel vision is defined as the social, organizational, and
   psychological tendencies "that lead actors in the criminal
   justice system to focus on a suspect, select and filter the
   evidence that will build a case for conviction, while ignoring
   or suppressing evidence that points away from guilt." As
   more resources--money, time, and emotions--are placed into
   a narrative involving a suspect, criminal justice professionals
   are less willing or able to process negative feedback that
   refutes their conclusions. Instead, they want to devote
   additional resources in order to recoup their original
   investment. As a result, evidence that points away from a
   suspect is ignored or devalued, and latent errors are
   overlooked. (64)


Our primary purpose here is to explicitly attend to how gender, race, and their intersections feed this process of tunnel vision by providing criminal justice actors with particular kinds of cultural scripts through which they interpret real or perceived criminal events, and come to make decisions about which actor or actors they believe are responsible and why. Both the paucity of knowledge on women's wrongful convictions and recent calls to better develop conceptual and theoretical frameworks for understanding the causes and consequences of wrongful conviction (65) provide an avenue for thinking critically about how feminist criminology--and especially intersectional theory--can contribute to this enterprise. Intersectional analysis, which focuses on how structural inequalities are produced, reproduced, and resisted through social action, involves the investigation of "micro level processes--namely, how each individual and group occupies a social position within interlocking structures of oppression"--but frames these in relation "to the macro level connections linking systems of oppression such as race, class, and gender." (66)

In taking this theoretical approach, our goal is not to predict wrongful convictions--as compared to legitimate convictions or even other types of miscarriages of justice--but to consider how gendered and raced biases play fundamental roles in creating the crime and suspect typifications that take hold in these cases and that shape the behaviors and practices of criminal justice system actors. This means viewing gender and race as "configuration[s] of [social] practice[s]" (67) within structural systems of inequality. Thus, we consider the broader roles that gender and racial inequalities play in these processes by positioning criminal justice actors and the wrongfully convicted within "institutional arrangements, community structures, and even family systems" (68) built upon stratification, hierarchy, and power. Such inequalities pattern social interactions by configuring opportunities for action, creating both privileges and constraints. Indeed, we find previous research on a range of criminal justice practices implicated in the reproduction of gender and racial inequalities--sentencing disparities, for example, and the treatment and processing of sexual assault--quite useful for our theoretical purpose here. The gender and racial biases that operate within wrongful convictions--though especially egregious in their forms and consequences--are, we suggest, introduced in much the same fashion as they are in other discriminatory practices and miscarriages within the justice system.

We investigate these issues by focusing special attention to women's cases of wrongful conviction. For reasons described above, there is currently a dearth of information about women's wrongful convictions, and our analysis helps fill this significant void. However, it is important to note that the theoretical framework we present is not intended to be gender-specific, nor should it be relevant only for understanding wrongful convictions among women. At the heart of intersectional theory is the understanding that gender and race are sociological concepts; they are not simply about women and men, or African Americans, Latinos, and whites, for example, but about relations within and between groups, and how these are connected to patterns of social organization, institutional processes, cultural ideologies, and constructions of accountability. (69) Our hope is that the framework we present here not simply be applied to the study of women, but to wrongfully convicted men as well.

II. PATTERNS OF EXONERATION BY GENDER AND RACE

To utilize the theoretical tools of intersectionality and criminology for understanding wrongful conviction first requires an exploration of its gendered and raced patterns. The NRE is the first dataset that allows us to do so. The NRE defines "exoneration" as any case in which a wrongfully convicted person is later officially cleared based on innocence. (70) This may come about as a result of a pardon, an acquittal of all charges on retrial, or a dismissal of all charges. (71) While this is a broader definition of wrongful conviction than actual innocence, as established for example through DNA exonerations, it nonetheless does not include all cases in which there is extensive evidence of innocence. In addition, though beyond the scope of our analysis here, it is worth raising one important limitation of the NRE in this context. Because this dataset classifies as exonerations all crimes in which the person is officially cleared, it may include individuals who are legally but not necessarily factually innocent. (72) Women represent 8.5% of the dataset, (73) slightly higher than their representation in the state and federal prison population, at approximately 7%. (74)

Figure 1 provides the racial demographics of exonerees across gender in the NRE as of November 25, 2014. While racial minorities (predominantly African Americans) were nearly two-thirds (62%) of male exonerees, this was nearly the reverse for female exonerees, only 35% of whom were women of color (again, predominantly African Americans). (75) Of the 126 women in the NRE as of November 25, 2014, eighty-two were white, thirty-four were African American, seven were Latina, two were American Indian, and one was Guyanese. (76) To some degree, these patterns reflect gender differences in racial disparities in imprisonment, which are greater for men than women. (77) The racial composition of male exonerees reflects the overrepresentation of minority men in the prison system. (78) Still, there is a notable difference between the racial composition of exonerated women in the NRE and their counterparts in the prison population. Women of color make up over half of the female state and federal prison population, but only 35% of female exonerees (44 of 126). (79)

[FIGURE 1 OMITTED]

One reason for the large number of white women in the dataset is their overrepresentation among wrongful convictions in the child sexual abuse (CSA) hysteria cases of the 1980s and early 1990s. (80) These cases represented nearly a quarter of the white women in the NRE (20 of 82, or 24.4%). (81) However, even when these cases were excluded, white women still made up the majority of female exonerees. They were 59% of exonerations exclusive of CSA "hysteria" cases (62 of 105), while African American women were 31.4% and other women of color were 9.5% of these cases. (82)

Beyond the proportion of women and men of different racial groups in the NRE, there are some gender and race patterns in the types of crimes for which exonerees were wrongfully convicted. (83) Figure 2 shows that regardless of race and gender, the majority of exonerees were wrongfully convicted for violent offenses. This is not surprising. It reflects the case priorities of innocence movements, particularly since such individuals face the harshest criminal justice sentencing. (84) However, it is notable that women's exonerations were more likely than men's to include property, drug, and other offenses. (85) African American women's wrongful convictions were especially likely to be for drug crimes, representing just over one in five of their cases. (86) However, they were the least likely to be wrongfully convicted of sexual assault/abuse. (87) On closer inspection, this is a gendered pattern; white women's representation in the sexual assault/abuse category was almost exclusively because of CSA hysteria cases. (88) Excluding these, there were just five total sex crimes exonerations involving women in the NRE, each of which was a CSA case. (89) Sex crimes, then, are a crime category for which men were almost exclusively the wrongfully convicted. (90)

[FIGURE 2 OMITTED]

In addition, looking only at crime type conceals additional patterns of wrongful conviction by race and gender. One important distinction, as illustrated in Figure 3, is the exoneree's relationship to the victim or presumed victim. (91) Half of the male exonerees were wrongfully convicted of crimes involving strangers (663 of 1331), compared to only 19% of the female exonerees (22 of 116). (92) As one might expect, cases involving sex crimes were one important source of these differences. Men's wrongful convictions for sex crimes were primarily for sexual assault (64.8%, or 265 of 409 cases). (93) The remainder included thirty CSA hysteria cases (7.3%) and another 114 cases (27.9%) of CSA. (94) Nearly three-quarters (73%) of men's sexual assault cases involved strangers, as did 21.3% of their wrongful convictions for nonhysteria CSA cases. (95) On the other hand, in every NRE case involving a woman for whom the most serious conviction was for a sex crime, the victim or presumed victim was a child. (96) Just one of these--a hysteria case--involved a stranger. (97) Sex crime cases partially account for gender differences in the relationship of exonerees to the victims or presumed victims, but homicides do as well. For males, 53% (313 of 595) of wrongful homicide convictions involved stranger victims, compared to only 26% of those cases involving female exonerees (11 of 43). (98)

Clearly, these patterns must be further delineated by race, since 62% of black men (409 of 656) were wrongfully convicted of crimes against strangers, compared with 44% of Hispanic men (70 of 159) and only 36% of white men (184 of 516). (99) For each of these groups, the next largest category of victims was acquaintances, friends, or coworkers. (100) Women, and particularly white women, were much more commonly represented in wrongful convictions against family members, especially compared to African American and Hispanic men. (101) In fact, half of all white women listed by the NRE were exonerated of crimes against a partner or spouse, immediate family member, or extended family member (51%). (102) Nicole Harris notwithstanding, the pattern does not appear to be nearly as dominant among African American women (26%), as we will later discuss. (103) In fact, a smaller proportion of African American women were wrongfully convicted of a crime against a family member than were white men, and they were nearly as likely to be wrongfully convicted of a crime involving a stranger, suggesting the import of considering gender and race intersectionally rather than independently. (104)

[FIGURE 3 OMITTED]

This is further evidenced by cases involving child victims. As shown in Figure 4, white women were the most likely to be wrongfully convicted of crimes against children (48%), followed by white men (28%), African American women (21%), then Hispanic (18%) and African American (16%) men. (105) This pattern remains even with the exclusion of CSA hysteria cases, though the proportion of white women's cases comes closer to that of other groups, at 31%. (106) Despite what appear to be meaningful differences across race, gender still matters in the nature of crimes against children for which women of all races are wrongfully convicted. It is through their roles as primary caregivers or in occupations involving childcare that women are convicted of crimes against children. (107) Beyond the child sex abuse hysteria cases, this subset includes cases involving death or injury to a child that may have been the result of a crime, a serious medical condition, or may have been accidental. (108) In this way, Nicole Harris's case typifies this particular manifestation of gendered wrongful conviction, even though the phenomenon appears to be disproportionate for white women in the NRE.

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It bears repeating that not all "victims" labeled as such in Figures 3 and 4 involved crimes that actually took place. Figure 5 illustrates that women were disproportionately represented in the "no crime" category of the NRE. (109) Twenty-three percent of the wrongful convictions in the dataset did not involve an actual crime--including 65% of women's cases (75 of 116), yet only 21% of men's (277 of 1331). (110) Indeed, both white and African American women were disproportionately represented in the no crime category. (111) These accounted for 71% (58 of 82) of white women's wrongful convictions and 50% (17 of 34) of African American women's. (112)

[FIGURE 5 OMITTED]

We also examined which crime types account for women's no crime cases. For both white and African American women, the most substantial portion of no crime cases featured children as the presumed victims (34% and 31% respectively, excluding CSA hysteria cases). (113) From here, within-gender patterns for women diverge, however. For white women, the next largest proportions of no crime cases were convictions for the victimization of an intimate partner or adult family member (18%) or for a white collar crime (18%), followed by wrongful drug convictions (16%). (114) For African American women, the next largest proportion of no crime cases (31%) was false drug convictions, with no other patterns emerging among the remaining cases. (115) This again suggests that the intersections of gender and race are a meaningful place for understanding wrongful convictions.

Thus far, we have described how the types and situational characteristics of crimes are distributed across gender and race categories among exonerees. Another consideration is whether there are differences across gender and race in the factors that contribute to wrongful convictions. Figure 6 reveals no simple answer to this question. Perjury or false accusation and official misconduct were the most common contributing factors across gender and race categories. (116) Mistaken witness identification was especially frequent for African American and Hispanic men, quite rare for white women, and a contributing factor for around one-fifth of white men and African American women. (117) This pattern is, of course, closely tied to the distribution of cases that involved victims who were strangers, as discussed in relation to Figure 3 above.

On the other hand, a larger proportion of women--and especially white women--had false or misleading forensic evidence contribute to their wrongful conviction. (118) A likely explanation for this difference lies in child victim cases involving women's caretaking roles. This includes, for example, cases involving women attributed to SBS (119) and other cases in which child injuries or deaths were wrongly blamed on their female caregivers. (120) Women's cases were also slightly more likely to involve inadequate legal defense, with white men the least likely and African American women the most likely to have this as a contributing factor. (121) Finally, women were somewhat more likely to falsely confess than were men. (122) This may also be a result of their disproportionate wrongful conviction in cases involving children--as in Nicole Harris's lengthy interrogation immediately following the death of her son (123)--or the use of their children as a tactic to secure a confession, (124) topics we discuss further in Part III.

[FIGURE 6 OMITTED]

To recap, our review of the patterns of exoneration in the NRE by gender and race as of November 25, 2014, suggests the following: while the racial distribution of men's exonerations closely paralleled racial disparities in men's incarceration rates, in the case of women, white women were a larger proportion of exonerees than their representation among incarcerated women. (125) Across groups, the vast majority of wrongful convictions documented in the NRE were for crimes of violence, though sex crimes were a much larger proportion of men's exonerations than women's and, across race, women were more likely than men to have been exonerated for nonviolent crimes. (126) Considering exonerees' relationships to identified victims, white women were especially likely to be wrongfully convicted of crimes or presumed crimes against family members relative to other groups, while African American women were disproportionately wrongfully convicted in both family and stranger cases. (127) Men, and especially men of color, were most likely to be convicted of crimes against strangers, with crimes against acquaintances, friends, and coworkers the next most common relational status for all men. (128)

White women were especially likely to be convicted for crimes or presumed crimes involving child victims, relative to other groups. (129) And for both white and African American women, their overrepresentation relative to men in no crime cases was especially the result of wrongful convictions for incidents erroneously designated as crimes against children. (130) Finally, factors contributing to wrongful conviction demonstrated both similarities across groups and several notable differences: the cases of men of color were especially likely to involve witness misidentification, followed by white men and African American women, while this contributing factor was virtually absent in white women's cases. (131) On the other hand, both white and African American women were somewhat more likely than all groups of men to have false or misleading forensic evidence, inadequate legal defense, and false confessions as factors that contributed to their wrongful convictions. (132) On the whole, these patterns present a strong case for investigating wrongful convictions intersectionally, as neither gender nor race could account for these patterns on their own.

III. CONTEXTUALIZING WOMEN'S PATTERNS OF WRONGFUL CONVICTION

Part II reveals patterns in the NRE suggestive that gender and race meaningfully shape experiences of wrongful conviction. From here we turn our attention exclusively to the contexts of women's wrongful convictions. To further understand these, we performed a qualitative content analysis (133) of the 126 women's NRE cases available as of November 25, 2014, and also prepared detailed case studies of several cases we define as wrongful convictions that are not in the NRE, but that typify the same gendered patterns. (134) These analyses provide deeper contextual insights into the gendered and raced contexts of the crimes for which women were wrongfully convicted, and the ways in which gender and race came to construct them as suspects who were then convicted of actual or presumed crimes.

Perhaps the most striking findings in our content coding of NRE cases are the significant differences across race in the crime contexts of women's wrongful convictions. Excluding the twenty-one CSA hysteria cases (twenty of which involved white women), (135) Figure 7 provides a comparison of crime typifications for white and African American women. (136) First, it is notable that half of white women's NRE cases involved crimes (or presumed crimes) committed against children, intimate partners, or other family members in domestic or childcare contexts (137)--what we call here "domestic crime scenarios." (138) Notably, such cases also represented the majority of white women's convictions for crimes that did not occur. (139) In addition, Figure 7 reveals that white women in the NRE were more than twice as likely as African American women to have been wrongfully convicted of property or white collar crimes. (140)

In contrast, over half of African American women's wrongful convictions involved either drug cases (21%) or cases we classify as involving "street crime scenarios" (33%) (141)--violent crimes such as murders, robberies, and home invasions that target either strangers or acquaintances (142) and occur outside the context of home. (143) Indeed, more than a third of African American women were wrongfully convicted of violent street crimes. All of these cases involved actual crimes, with most African American women wrongfully convicted of violent street crimes identified as the guilty party through witness misidentification or perjured testimony--from the actual offenders, other crime-involved individuals, or jailhouse snitches. (144) By comparison, only around a quarter of white women's wrongful convictions were either drug cases (11%) or involved street crime scenarios (16%). (145) White women's wrongful convictions, then, appear particularly likely to emerge in the context of domestic crime scenarios (50%), while African American women's wrongful convictions were strongly patterned by both street (33%) and domestic (30%) crime scenarios. (146)

A. Domestic Crime Scenarios

The wrongful conviction of Nicole Harris was one of forty-five women's cases in the NRE that fit what we have conceptualized as "domestic crime scenarios." (147) What these cases have in common is that the identified crime took (or was believed to have taken) place in the context of women's familial relationships and/or caretaking roles (148) i.e., the gendered private sphere that is culturally recognized as women's domain of responsibility (149) as wives, mothers, and daughters). Domestic caretaking--of children, intimate partners, and elderly parents--is still considered a defining feature of women's lives, with "contemporary women across racial and ethnic groups ... considered accountable to care for ... [and] presumed responsible for self, for others, for kin, for community, and for controlling the behaviors of men." (150) The contemporary ideal of "motherhood," for example, embodies selfless sacrifice directed toward caring for, nurturing, and protecting one's children, with women held accountable for falling short of this ideal. (151) Recall how this was narrated explicitly in Nicole Harris's case--she was called a "monster" by the polygraph examiner and described to jurors by the prosecutor as "not the mother the defense wants to present to you." (152)

1. Children as the Victims of Women's "Crimes"

It is, thus, unsurprising that cases involving child victims predominated domestic crime scenario cases across race and across crime type. (153) In all, there were twenty-seven such cases in the NRE, representing a quarter 25.7%) of all women's wrongful convictions, exclusive of CSA hysteria cases. (154) Fifteen of these cases were for murder, along with one manslaughter, one assault, five child abuse, and five sexual abuse cases. (155) In many of these cases, criminal justice officials' "escalating commitments" (156) to an interpretation of these events as both crimes and crimes perpetrated by mothers or other female caregivers appear to draw closely from cultural interpretations of "bad" mothering, which are utilized in constructing a "compelling narrative" (157) of the crime. Consider the wrongful assault conviction of Olga Shved against her four-month-old daughter. (158) Shved called (911) when the infant began choking, and a pediatric examination revealed numerous fractures, both old and recent. (159) A medicated cosmetic on the infant's face was taken as a critical piece of evidence that she had used make-up--a gendered tool in the construction of femininity (160)--to conceal her daughter's bruising. (161) Notably, while Shved was convicted of first degree assault and sentenced to ten years, her husband was charged only with failing to report the baby's injuries, a misdemeanor that was later dismissed. (162) On retrial, pediatric experts testified about several medical conditions that caused the infant's injuries, and on this basis Shved was acquitted five years after her wrongful conviction. (163)

Numerous additional women are in the NRE for "crimes" in which preexisting medical conditions were not recognized as the cause of harm or death. These includes, for example, Julie Baumer's infant nephew, who had suffered a childhood stroke while in her care; (164) Brandy Briggs's infant son, whose death was the result of complications stemming from an infection coupled with medical error; (165) Patricia Stallings's infant, who had a rare genetic disorder; (166) the infant in Melonie Ware's daycare, who died of sickle cell anemia; (167) and the deaths of several "medically fragile" infants for whom Yvonne Eldridge was trained to provide specialized foster care. (168) Given that "[m]ost of the infants in this program were born drug-addicted or with life-threatening conditions," (169) instances of infant mortality should not be unexpected. According to the NRE, Eldridge's wrongful conviction stemmed from inadequate legal defense, including the failure of her counsel to introduce evidence that "one of the doctors who raised allegations against [Eldridge] ... had previously made a [sexual] pass at [her], had been accused of a series of unwelcome sexual overtures directed at other patients and hospital staff, and had a history of accusing women of Munchausen Syndrome by Proxy [(MSBP)]"--an accusation he had made in her case as well. (170)

Both of these critically excluded pieces of evidence demonstrate additional gendered contexts surrounding Eldridge's wrongful conviction. Research demonstrates the range of harms that result from sexual misconduct among physicians, many of whom continue in medical practice even if they are disciplined. (171) Moreover, it is most often women accused of or diagnosed with MSBP; (172) feminist legal analyses suggest that "social revulsion and retributive impulse[s] toward[] 'bad mothers' invite[] professionals to infuse alleged cases of MSBP with morality, gender attributions, and social judgments," impacting the adjudication of these cases. (173) Indeed, the title of a recent article--Monsters in the Closet: Munchausen Syndrome by Proxy--published in the journal Critical Care Nurse further illustrates the powerful metaphor of monstrous mothers seen explicitly in imputations against Nicole Harris. (174) In a parallel vein, Tammy Smith, erroneously convicted of child abuse after her four-year-old, developmentally disabled son broke his arm in an accident, bore the maternal "courtesy stigma" not just of her son's injury but his disability. (175) Her motherhood was put on trial not just as a result of her son's injury, but through the attribution of mother blame at what were interpreted as his character traits, not simply a disability, as a social worker "testified that he was 'the most unsocialized child' she had ever seen," characterizing him as "a little animal child." (176)

Other women's wrongful convictions were imbued with gendered motives that provided a crime narrative placing the women directly at odds with the ideal of motherhood as selfless sacrifice for one's children. Eighteen-year-old Sabrina Butler's attempts at CPR were interpreted as fatal abuse; (177) like Nicole Harris, many hours of questioning immediately following her infant's death led to a false confession that she had punched the baby because he would not stop crying. (178) Seventeen-year-old Michelle Murphy, who also falsely confessed after her eighteen-month-old son was stabbed to death, was accused at trial of being motivated to "get rid of' her infant son so that her estranged husband, who "suspected that he was not [the baby's] father," would reconcile with her. (179) Julie Rea, whose son was murdered by the serial killer Tommy Lynn Sells, was presumed to have taken her son's life due to a "bitter" custody dispute with the boy's father. (180) Kimberly Mawson, whose former boyfriend testified against her but later admitted to causing the injuries that killed her young daughter, was described as "frustrated" by her childcare responsibilities. (181) And Margaret Earle, whose live-in boyfriend at the time later confessed to perpetrating the violence that killed her young daughter and was sentenced to life in prison, was co-convicted of the murder in a separate trial and also given a life sentence for "failing to promptly seek medical treatment," despite evidence that she had done so. (182)
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Title Annotation: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
Author:Webster, Elizabeth; Miller, Jody
Publication:Albany Law Review
Date:Mar 22, 2015
Words:6079
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