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Prosecutorial Misconduct

Prosecutors, as elected offi cials, have the responsibility to uphold the law while at the same time try- ing to insure the public’s safety. Unfortunately, in a rush to convict an offender, they sometimes do not follow the appropriate procedures. Instead of being ethical in their practice of the law, they in fact break the law just to win a case. These miscarriages of justice in death penalty cases have caused many innocence people to be executed and others to lose numerous years imprisoned for a crime they did not commit. Types of misconduct by prosecutors include improper comments during the trial, failure to provide a full and true discovery, failure to disclose mitigating evidence, withholding excul- patory evidence, making false statements to Superior Court, using perjured testimony, and exhibiting unprofessional conduct during the trial ( Mooney v. Holohan , (1935); Brady v. Maryland , 1963; Caldwell v. Mississippi , 1985; Minsker, 2009; R. David Favata , 2015).

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Etta F. Morgan


Sabrina Butler was sentenced to death in March 1990, convicted of killing her infant son, becoming the only woman on Mississippi’s death row at 18 years old. During her trial she exercised her consti- tutional right not to testify. The prosecutor made derogatory comments regarding her unwillingness to testify in this case. The defense objected, and the comments became an issue in her appeal to the Mississippi Supreme Court. In reviewing the appeal, the Mississippi Supreme Court said that the com- ments made by the prosecutor were reversible error and were cause for her conviction to be reversed. The court further noted that the trial court judge should have declared a mistrial when the comments were made. Additionally, the court stated that there was no evidence that a murder had been committed Butler v. State , 608 So.2d.314 (1992). Sabrina Butler was exonerated in 1995, becoming the fi rst woman to be exonerated from death row after serving fi ve years for a crime that never happened.

The second woman to be exonerated from death row was Debra Milke. The Arizona Supreme Court upheld a lower court’s ruling dismissing all charges against Milke due to police and prosecu- torial misconduct. The Arizona Court of Appeals also barred any further prosecution of Milke. Unfortunately, these actions came after Milke spent 23 years on death row (Death Penalty Information Center, 2013). Luckily for her, women are seldom executed. Milke’s case is not an isolated case. There have been allegations of prosecutorial misconduct in at least half of the death sentences imposed in Arizona since 2002. The Arizona Supreme Court has verifi ed a substantial number of these allega- tions. A study by Harvard Law School’s Fair Punishment Project (2016) found that fi ve prosecutors in this country (three from the death belt) accounted for numerous allegations of misconduct. Of the alleged allegations in the death belt, two of the three prosecutors were found to have engaged in prosecutorial misconduct an average of 26.5% of the time.

Prosecutorial misconduct has been cited as the reason the Delaware Supreme Court has over- turned three death sentences in recent years: Jermaine Wright (May 2014); Isaiah McCoy (January 2015); and Chauncey Starling (December 2015) (Death Penalty Information Center, 2015b). As a result of the McCoy v. State of Delaware (2012), the prosecutor, R. David Favata, was cited by the Board of Professional Responsibility as having violated the Delaware Lawyers’ Rules of Professional Con- duct. He was charged with seven violations, and the board recommended that his license be suspended for six months and one day. He will have to meet the conditions of readmission for the Delaware Bar Association (Favata, 2015). There have also been notable problems in Missouri, Pennsylvania, Cali- fornia, and Oklahoma as well in recent years, but none of these prosecutors have received any type of disciplinary action (Death Penalty Information Center, 2015b; Minsker, 2009). With issues such as ineffective assistance of counsel, improper jury selection processes and prosecutorial misconduct, it stands to reason that most states have enacted automatic appeals. Yet in spite of the safeguards in place, innocent people are still executed. The pathway to an execution requires the offender’s status to change from a respectable citizen to criminal. This change in identity creates a stigma that degrades one’s status in society.

Society has in place mechanisms that are used to degrade its members that do not conform to socially acceptable behaviors (Garfi nkel, 1956). Our society uses labels to represent status, whether good or bad; however, it is the “bad” labels that promote degradation of identity, and once applied, the damage is permanent because some in society will always place the “criminal” label fi rst. Even those who have been acquitted of crimes fi nd themselves still having to contend with the label. While both sexes experience this issue, it is more diffi cult for women than men because men are afforded some leeway to be ‘bad boys’. Women criminals are often identifi ed as women who are disreputable and lack moral integrity. In essence, these women do not possess the qualities of ‘real women’. Because this difference is not acceptable in society, it allows society to ostracize women offenders.

For those women charged with or convicted of a capital offense the degradation exacerbates. Previous noteworthy labels such as wife, mother, lover, and caregiver have now been replaced with the label of murderer, a label that identifi es these women as different from ordinary women and no longer to be recognized as such. When women are sentenced to death, does that mean an execution is



30 Age, Class, and Sex Disparities


forthcoming? Unlikely. Women are seldom executed in the United States. Instead, in many instances, they are processed out of the system as they move through the capital punishment process (Streib, 2003). As noted earlier, many death sentences imposed on women have been reversed, commuted, and exonerated. For those women who are executed, research by Streib (2003); Gillespie (2009) failed to identify any real, distinct characteristics associated with the women and/or their cases. In determining which women will be executed, it is more like taking a chance on the lottery than an actual process in the system of justice.

The same cannot be said about men, since they are more likely to be executed. Since the modern era of the death penalty, more than 1,422 death sentences have been carried out. Of these, only 16 females have been executed, compared to 1,406 males. Based upon the number of death sentences imposed on women and the number of executed women in this country, it is apparent that the death penalty is reserved mainly for men and women who exhibit masculine traits or who fail to exhibit ‘lady-like’ behaviors. In the following sections, we take a brief look at some of the women executed since 1976.

Prior to the 1984 execution of Velma Barfi eld, no woman had been executed since Elizabeth Dun- can in August 1962. Velma Barfi eld by most accounts was a God-fearing woman, but she had a sinister side and a criminal past. Addicted to prescription drugs, Velma had to fi nd a way to support her addic- tion. According to the North Carolina Department of Public Safety Offender Public Information (2016), Velma Barfi eld had been arrested and convicted of presenting worthless checks, for revocation of probation, and for violation of a regulated controlled substance before she was convicted of mur- der and sentenced to death. It was later discovered that the murder of Stuart Taylor (her boyfriend) was not the fi rst time Velma Barfi eld had murdered someone. In fact, she confessed to the murder of her mother and two others for whom she was the caregiver. Based upon this confession, authorities decided to exhume the body of her late husband and performed an autopsy. It was discovered that Velma had killed him with arsenic, like the others. Velma Margie Barfi eld for all intents and purposes was a female serial killer. For a more thorough review of this case read State v. Barfi eld , 259 S.E.2d510 (N.C., 1979). The next woman executed was Karla Faye Tucker in Texas.

Interestingly, the South, with its deep religious roots, fails to exercise forgiveness in relation to those who are convicted of any crime and most especially a capital crime. It is these same beliefs that those who support the death penalty cite as justifi cation for the death penalty; however, they show no empa- thy for one who turns her life around while on death row. Karla Faye Tucker was the fi rst women to be executed in Texas since the 1800s. As with many offenders, Tucker was said to have found Christ while on death row; however, it was hard for most people to get beyond the gruesomeness of the crime for which she was convicted (see Tucker v. State , 1988). Judias Buenoano was also executed in 1998, making her the fi rst woman executed in Florida since the 1800s, for the murder of her husband, a son, and a boyfriend in Colorado. She also attempted to kill another boyfriend in Florida by bomb- ing his car, but he survived. It was his discussion with authorities that led to the investigation into the other deaths and her subsequent convictions (see Buenoano v. State , 478 So.2d. 387 (FLA App., 1985); Buenoano v. State , 527 So.2d. 194 [FLA, 1988]).

There were two executions in 2000, Betty Lou Beets in Texas and Christina Riggs in Arkansas. Betty Lou Beets murdered two former husbands and involved her children in both of them. After each murder she solicited the aid of her children to dispose of the bodies. She also shot and wounded another husband, but she was only convicted of the murder of Jimmy Don Beets. Like Judias Buenoano, Betty Lou was called the “Black Widow” (see Beets v. State , 1987). Christina Riggs was not only a murderer but also the murderer of her children. Riggs carefully planned to kill her children. As a nurse, she had access to various drugs and used that access to steal Elavil, morphine, and potassium chloride. First, she drugged them with Elavil, an antidepressant, to put them to sleep. After waiting a period to ensure that they were sleep, she continued to carry out her plan. Using the potassium chloride (one of the ingredi- ents used in lethal injection), she injected Justin, but he awoke to the pain. She then injected him with



Etta F. Morgan


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