When Innocence Is Pink: Why There Is A Gender Gap In Exonerations of the Wrongfully Convicted and Efforts That Might Shrink It

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There are over 60 innocence projects nationwide, and they do tremendous work. According to the Cardozo Innocence Project website, “There have been 271 post-conviction DNA exonerations in United States history.” The Innocence Project has profiles of each of the exonerees and their cases on its website, and these profiles provide both a compelling read and a powerful indictment of the criminal justice system in this country.

Until I read Sandra Svoboda‘s article, When innocence is pink, however, I hadn’t noticed something very important about these exonerees: Only 4 of them are women. When you think about this for a second, it make sense. In her article, Svoboda begins by telling the tale of Julie Rae Harper’s wrongful conviction for murder and her ultimate exoneration and then notes that

While much attention has been given to the hundreds of men who have been exonerated of rapes and murders by DNA evidence during the last decade, Harper is among the handful of wrongly convicted women who have had their cases re-examined and their guilty verdicts changed without the relative luxury of such science and forensic proof.

The goal of this post is two-fold: First, I want to highlight some of the most interesting parts of Svoboda‘s article. Second, I want to discuss two efforts that could lead to a shrinking of the exoneration gap.

Initially, I certainly recommend that all readers check out Svoboda‘s article, which is a terrific read. That said, here are a few key portions that I want to highlight:

•”‘The main difference with women from men in wrongful conviction cases is women are generally accused of harming someone they’re close to,’ says Laura Caldwell, an attorney and director of the Life After Innocence Project at Loyola University’s School of Law in Chicago. ‘There’s a double-whammy.’”

•”[E]ven for recent decades, there’s no tallying or cataloging of cases where women have been wrongfully convicted and exonerated….Some researchers, though, have analyzed the known cases of women’s exonerations, which are not many but continue to increase. Just 25 women were among roughly 700 cases of known wrongful convictions in 2005 as cataloged by Northwestern University’s Center for Wrongful Convictions, according to published research.”

•”Wisconsin researchers Mitch Ruesink and Marvin Free examined dozens of cases of wrongly convicted women in the United States and reached several conclusions. First, the women were most often convicted for murder or child abuse. Second, while the most common reason for men’s wrongful convictions was eyewitness error, the most prevalent problem for women was unethical police and prosecutors. An added cause of women’s wrongful convictions was erroneous testimony from alleged child victims, a tough piece of the case for juries to overlook and acquit.”

•”‘If you look at the causes of wrongful conviction, they apply equally to women as they do to men. It’s just, unfortunately, given the nature of DNA exonerations, women are not going to be able to be benefited by it as much,’ says Peter Neufeld, co-director of the Innocence Project at Cardozo School of Law at Yeshiva University in New York. ‘It’s just more difficult to exonerate because we don’t have DNA evidence to test.’”

So, what is being done?

Women and Innocence

As Svoboda’s article notes, one effort is the new group, Women and Innocence. According to the group’s website:

We began by listening to the voices raised from within the innocence movement.  There were murmurings, inquiries and calls for assistance.  There were questions asking the obvious, such as, “Why aren’t we doing this…?”, “Hasn’t anyone noticed that…?”, “We should have an….”.  Women and Innocence began as a response to these questions.  We are representing a voice that has long existed and needed to be heard.

Our mission is to create a voice for women within the innocence movement.  We have created a forum where ideas, discussions, stories and the important truths they hold, may be shared.  Through research and promoting an ongoing dialogue we hope to bring about increased awareness of the role of women who have been wrongly convicted.

We hope to create a shift in thinking so that the valuable differences between each woman’s story may be appreciated.  For within every variance lay beauty and value and a perspective that can only be seen once its vantage point has been taken.

The group held the first Women and Innocence Conference last year (see here and here), is seeking nonprofit status, and is developing grant applications for funding. If you want more information about the group and/or want to become involved, click here.

Michigan Innocence Clinic

According to its website, the Michigan Innocence Clinic is unique among innocence clinics.

Unlike many other innocence clinics, which specialize in DNA exonerations, the Michigan Innocence Clinic focuses on innocence cases where there is no biological evidence to be tested. Under the supervision of its founders, Professors Bridget McCormack and David Moran, Innocence Clinic students work on all aspects of the cases, including investigating new evidence, preparing state post-conviction motions, conducting hearings and arguing motions in conjunction with these motions, and filing appeals to the state and federal courts. The Michigan Innocence Clinic has already exonerated several of its clients since its inception in 2009.

As noted in this excerpt, one founders of the Michigan Innocence Clinic is Bridget McCormack, who  ”also serves as associate dean for clinical affairs and is a clinical professor of law. She has taught in the Michigan Clinical Law Program, focusing on criminal defense cases, criminal law, a domestic violence clinic, and a pediatric advocacy clinic.” Recently, she (along with Robert Kuehn) posted Lessons from Forty Years of Interference in Law School Clinics on SSRN. The other founder is David Moran, who also “teaches courses in Criminal Law and Criminal Procedure. Professor Moran has argued five times before the United States Supreme Court. Among his most notable cases are Halbert v. Michigan, in which the Supreme Court struck down a Michigan law that denied appellate counsel to assist indigent criminal defendants who wished to challenge their sentences after pleading guilty.”

Here’s a pretty compelling video piece on the Clinic’s representation of Dwayne Provience, which does a nice job of explaining the Clinic’s goals. As Svoboda’s article explains, the Clinic was able to secure a “not guilty” verdict in the case of Julie Baumer, who had severed 4 years of a sentence on a felony child abuse conviction before being given a new trial. The Baumer case was not completely anomalous in terms of the gender of the exoneree. As Svoboda notes:

With the Innocence Project and its dozens of national affiliates working on DNA cases, the University of Michigan’s new Innocence Clinic is handling only non-DNA cases, and three of the first 13 clients have been women.

“We haven’t made a lot of progress in translating that into cases where there is no DNA evidence and, unfortunately for women, there often isn’t any,” says Bridget McCormack, co-director of the University of Michigan clinic.

Still, the clinic’s three cases with female clients are progressing with some successes. The Michigan Supreme Court has agreed to hear one of the women’s cases — a dispute over when courts can order indigent defendants to pay child support.

In a second case, Lorinda Swain, has been granted a new trial by a Calhoun County judge, but that was overturned by the Michigan Court of Appeals and upheld by the Supreme Court. The clinic has filed a motion for reconsideration of that decision.

That Michigan Court of Appeals opinion was People v. Swain, 794 N.W.2d 92 (Mich. App. 2010), and it illustrates the difficulty with trying to exonerate women who were allegedly wrongfully convicted: They often must prove actual innocence. In the absence of DNA evidence, that’s a tough hurdle to leap. That said, it is not impossible. A judge recently agreed to hear more evidence in the Swain case as the Michigan Innocence Clinic tries to get her a new trial. And while the hearing on that evidence has been delayed, there is always hope.

-Colin Miller

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