Queer on Death Row

In Murder Cases, Being Gay Can Seal a Defendant’s Fate

Lingar's appeal was partly successful. The court ruled that discussing his homosexuality would have been unconstitutional if it had influenced the jury. But the court also concluded that it had not. Missouri's attorney general called the charge of bias "absurd."

In fact, 12 percent of jurors say they could not be fair to a gay defendant, according to a survey by the National Law Journal. This suggests that homophobia will likely be present on any jury, not to mention one in rural Missouri. Yet because the prosecution chose to keep Lingar's sexuality a secret until the last minute, the defense had no way to deal with it, or even to poll the jury about homophobia. Situations like this are why activists urge defense lawyers to be proactive when their clients are gay. Yet in places like Missouri, attorneys will often pretend the issue isn't there—until it's too late.

Calvin Burdine waits on death row: The prosecutor said sending someone like him to the penitentiary “certainly isn’t a very bad punishment for a homosexual.”
Photo: Andrew Lichtenstein/ Corbis Sygma
Calvin Burdine waits on death row: The prosecutor said sending someone like him to the penitentiary “certainly isn’t a very bad punishment for a homosexual.”

Wanda Jean Allen's sexuality was never far from the surface of her case. She had killed her female lover in front of a police station; there was no disputing that. The issue was motive, and the defense demonstrated that Allen and her lover had a tumultuous, violent relationship requiring frequent interventions by the police. At her arrest, Allen bore scratches on her face, allegedly from being assaulted by her lover with a rake. This was a crime of passion, the defense argued, and in such cases the death penalty is rarely invoked.

But Allen had several strikes against her. For one thing, she was black and poor. (Her lawyer was paid only $800.) For another, she had killed before, albeit in a case so ambiguous that she was allowed to plead guilty to manslaughter and received the minimum sentence of four years. A prior homicide can be grounds for death. But according to the Death Penalty Information Center, only 8.4 percent of inmates awaiting execution have previous murder convictions. What made Allen's crime so shocking that she became the first woman put to death in the state of Oklahoma?

Possibly it was the prosecution's assertion that Allen "wore the pants in the family." Spurred on by testimony from the victim's mother, the state claimed that Allen was the man in the relationship, noting that she even liked to spell her middle name G-E-N-E, in the masculine way. The implication that Allen dominated her lover overwhelmed the evidence that both women had abused each other. And it raised the specter of the killer dyke that often haunts female defendants in murder cases. In the documentary Perverted Justice, CUNY law professor Ruthann Robson estimates that 40 percent of women accused of murder must contend with "some implication of lesbianism."

In capital cases, the prosecution aims to convince the jury that the defendant is inhuman. It's harder to do that when a woman is in the dock. "Before we can dehumanize her, we have to defeminize her," says Victor Streib, who has studied lesbians on death row. It's easier to condemn a masculine woman to death, especially if she is what Streib calls "a tough customer." In several recent murder cases involving lesbian couples, the state labeled one woman the dominant member of the pair and charged her with capital murder, while allowing her more “feminine” companion to plead guilty to a lesser charge.

But sometimes not even femininity is enough to spare a lesbian’s life. Ana Cardona claimed it was her domineering female lover who had killed her child. But the strategy backfired: Her lover got 40 years while Cardona got sentenced to death. After all, she was the child's mother—or "lesbian mother," as she was called. She was also accused of being sadistic enough to have beaten and starved the child. But the image of the killer dyke gave her culpability added weight. As Streib notes: "The death penalty is fairly rare for mothers who kill their children." Susan Smith's life was spared, though she had watched her children drown in the car she rolled into a lake. But Smith was not a "lesbian mother."

Gay male defendants, too, must deal with the image of the predatory queer, especially when the accomplice is a younger man. Even Calvin Burdine's dozing lawyer knew enough to base his defense on allegations that the victim was a "middle aged, king homosexual" who had victimized young boys.

Gregory Scott Dickens was 26 when he was charged with killing a couple outside Yuma, Arizona. He had been traveling with a 16-year-old who, according to Dickens's current attorney, was the most important person in his life. The youth admitted to firing the gun, but he testified that Dickens had given him the weapon and put him up to the crime. When the defense moved to present evidence that this teen fit the profile of a violent and impulsive liar, Judge Tom Cole intervened. If the defense took that route, said the judge, he might allow the prosecutor to raise an issue that had been kept from the jury: Dickens and his young friend were lovers. Then the nature of Dickens's two previous convictions—for fondling minors—might also come out. "The state could say that in this homosexual relationship, the older partner had control over the kid," says Dickens's current attorney. So the defense backed down.

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