Lesbianism and the Death Penalty: A "Hard Core" Case

Bernina Mata was sentenced to death in Illinois in 1999 for being a lesbian-or, the prosecutor labeled her, a hard core lesbian. Such a declaration strains credibility. 1999? Illinois? Sentenced to death? Is this really a claim of a direct causal link? In my previous scholarship investigating lesbians and the criminal justice system, I interrogated the prosecutorial use of lesbianism in trials and sentencing and often, not surprisingly, discovered bias against lesbians (Robson, p. 1998). Nevertheless, I concluded that I could not sustain any claim of legal causation and argued that positing lesbianism (and other identities) as the cause of prosecution and conviction is facile, and it was more important to consider statistical overrepresentation and the tropes which prosecutors use to dehumanize the lesbian defendant (ibid., p. 46-47). Analyzing the transcripts of two lesbians who were then on death row-Aileen Wuronos, who has since been executed, and Ana Cardona, who has since had her sentenced reversed-I thought that the-lesbian-as-man-hater is never explicitly articulated but virtually floats from the transcript pages (ibid., p. 36). Yet when I read the transcript in the case of Bernina Mata, I confronted a trial and sentencing hearing in which the-lesbian-as-manhater was no mere floatational trope. Instead, it was the prosecution's theory of guilt of first-degree murder and the prosecution's justification for the death sentence. Given the facts of the case-a stabbing relating to a sexual encounter and involving a third party-it seemed to me that the only real reason the jury could have convicted Ms. Mata of first-degree murder and sentenced her to death was the prosecutorial (mis) use of her lesbianism. I became aware of the case of Bernina Mata through a former student and now practicing attorney, Joey Mogul, of The People's Law office in Chicago, Illinois. Ms. Mogul was representing Ms. Mata in a clemency hearing, part of the individual clemency hearings ordered for every death-row inmate by then-Governor George Ryan. After reading the transcripts, I agreed to become an expert on the bias in Bernina Mata's trial and sentencing hearing. The next section of this piece contains the affidavit submitted on Bernina Mata's behalf. After the affidavit, section three illuminates the process of writing the affidavit and some of the issues it raised. Finally, the last section considers the outcome of the hearing and Ms. Mata's present situation. Affidavit PARDON DOCKET NO. 23679 BEFORE THE IUJNOIS PRISONER REVIEW BOARD FAEL TERM, 2002 ADVISING THE HONORABEE GEORGE RYAN IN THE MATTER OF BERNINA MATA AFFIDAVIT 1. My name is Ruthann Robson. I am a Professor of Eaw at the City University of New York School of Law and a member of the Florida Bar. My legal training and experience consists of a J.D. degree, a EE.M. degree, a clerkship with the Honorable William J. Castagna, United States District Court for the Middle District of Florida, a clerkship with the Honorable Peter T. Fay, United States Court of Appeals Judge for the Eleventh Circuit, and a practice with Florida Rural Legal Services. I have been teaching at the City University of New York School of Law since 1990 in the areas of constitutional law, including equality and the first amendment, sexuality and the law, and family law. 2. The bulk of my scholarship has been in the area of lesbian legal theory. This work appears in several books I have authored including Lesbian (Out)Law and Sappho Goes to Law School (Columbia University Press, 1998), in over fifty articles in law reviews, anthologies, and encyclopedias, and has been cited in excess of three hundred instances in various law reviews and anthologies in the United States and abroad. Additionally, I have spoken about lesbian legal issues at a multitude of law schools, universities, academic conferences, and other venues in the United States, Canada, Great Britain, Australia, and New Zealand. …

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