Windy City Media Group Frontpage News
Celebrating 30 Years of Gay Lesbian Bisexual and Trans News
home search facebook twitter join
Gay News Sponsor Windy City Times 2017-04-26
DOWNLOAD ISSUE
About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage

Sponsor
Sponsor
Sponsor

  WINDY CITY TIMES

Court appeal based on anti-gay slur
by Sam Worley
2010-08-25

facebook twitter pin it del.icio.us stumble upon digg google +1 reddit email


Sidney Foster, convicted for murder in 1975, is appealing his sentence on the grounds that the judge in the case violated Foster's right to due process when he used a homophobic slur at the sentencing hearing. Following its dismissal by the First District Appellate Court, the case is being appealed to the Illinois Supreme Court.

This is the fifth post-conviction appeal in state court for Foster, who is represented by the Cook County public defender's office. The petition was initially filed in 2003, with Foster representing himself. The public defender's office was appointed to the case in 2004.

Foster was found guilty of the 1973 killing of Vivian Patterson, with whom he had lived for more than two years. According to the appellate court's recent decision, Patterson's 12-year-old son, Solomon Hudson, testified during the murder trial that Foster had "forced him to engage in homosexual behavior."

In December 1973, after expressing concerns to an acquaintance that Patterson was planning on moving away and taking Hudson with her, Foster allegedly borrowed a friend's gun and murdered Patterson. He then allegedly paid two men to dispose of her body, which was discovered, dismembered, in the trunk of a car outside Foster's apartment in January 1974.

During and since the trial, Foster maintained his innocence. The latest appeal, however, does not contest the facts of the case. Rather, it centers on language used by Judge Frank Barbaro in the sentencing phase of Foster's trial.

After a jury found Foster guilty, Barbaro sentenced him to a term of between 125 and 250 years in prison. In explaining his sentence, Barbaro called Foster's actions "one of the most heinous and vicious crimes" he had seen.

The judge said, "The evidence showed that the defendant willfully concealed and calculated for his desire and lust for a young man, Solomon Hudson, did commit the crime of murder when he felt the victim, the mother might take away this boy, the defendant committed the violation of the law. He then, under his direction, became a fagot [ sic ] in the sense that he led two young men down the path of crime to do his bidding, not for a monetary reward to him, the defendant, but so that he may continue his desire and lust, and under his control and direction had two young men dismember the body of Vivian Patterson."

In the decision recently published by the appellate court, Foster is referred to as "openly homosexual." And the court said, "Throughout the period [ of the murder and trial ] , the defendant considered himself to be a transsexual; that is, he felt psychologically that he was a woman in a man's body." Windy City Times' attempts, through the Public Defender's office, to learn how Foster currently self-identifies were unsuccessful. Given this uncertainty, this article follows Foster's attorneys in referring to Foster with "he" and "him."

Foster and his lawyers claim that anti-gay bias was a motivation behind the sentence given by Barbaro, who was notoriously tough: after his death in 1997, a Chicago Tribune obituary noted that the judge had earned the nickname "Bar B-Q Barbaro" for his harsh sentencing practices. Foster is asking the Illinois Supreme Court to reverse the appellate court's decision and remand the case for a new sentencing hearing.

"We want them to take a stand," said Lester Finkle, a lawyer with the public defender's office. Finkle oversees the legal resources division, which represents indigent clients in post-conviction and appellate cases. "If a sentence is imposed out of bias, out of ignorance," he said, "you have to revisit [ it ] ."

The appellate court decision, which was handed down in June, focused on the number of petitions Foster has already made to both state and federal courts. " [ T ] he state's interest in finality," the decision read, "trumps the defendant's desire to litigate an issue that, despite his cognizance of it for more than three decades, neither he nor his prior counsel raised until 2003.

"The Act [ that allows for post-conviction appeals ] does not create a hit-or-miss process for defendants to repeatedly file post-conviction petitions raising new issues until, by a combination of luck and the process of elimination, a potentially meritorious one is argued."

Finkle said that there could have been any number of reasons for Foster to wait so long to appeal a sentence based on the claim of bias. That it took 35 years and four exhausted post-conviction appeals to raise these specific concerns "may not have been Mr. Foster's fault," he said. For instance, "he may not have had access to transcripts."

Mark Wojcik, a professor at the John Marshall Law School, echoed Finkle's observations when he talked with Windy City Times. "The decision" by the appellate court, said Wojcik, "showed a lot of problems constructing a complete record."

One such problem was that an earlier record of the trial was incomplete: it lacked the testimony of Solomon Hudson, the boy with whom Foster is alleged to have had a forcible sexual relationship.

The appellate court's decision said that after Foster's lawyers "discovered an original copy of the record of proceedings in the circuit court warehouse," the trial record was completed. It disputes the notion, though, that Foster didn't have access to his record sufficient to file an appeal, writing, " [ T ] here is no denying that his counsel had the record necessary to formulate a postconviction petition."

Wojcik said that he doubted the Illinois Supreme Court would reverse the lower court's ruling. "If he was challenging the evidence," Wojcik said, "there would be more to the argument."

But he said that the case is a good example of the rapid evolution of the judiciary over the past 35 years: The appellate court wrote that it "does not question the outrage expressed" by Foster's petition, and characterized the slur as "offensive and derogatory."

Wojcik pointed out that Barbaro used the term "faggot" only two years after homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders ( DSM ) , the guide used by medical practitioners to classify and diagnose mental illness.

"The courts then were not really used to dealing with homosexuals and transsexuals," said Wojcik. "The judiciary [ today ] is simple much more sensitive to the power of language." Words like "faggot," for instance, "simply would not be heard in the courtroom today."

Finkle said that he expects the Supreme Court to decide on whether or not to hear the case by September or October. Foster, who is 67, is currently incarcerated at Big Muddy Correctional Center in Ina, Ill.


facebook twitter pin it del.icio.us stumble upon digg google +1 reddit email




Windy City Media Group does not approve or necessarily agree with the views posted below.
Please do not post letters to the editor here. Please also be civil in your dialogue.
If you need to be mean, just know that the longer you stay on this page, the more you help us.


  ARTICLES YOU MIGHT LIKE

Plaintiff Seeks to Unseal Video of California 'Prop 8' Marriage Equality Trial 2017-04-28
Lawmakers reintroduce Tyler Clementi Higher Education Anti-Harassment Act 2017-04-28
Chay Reed, a Black transgender woman, killed in Miami, NCAVP responds 2017-04-27
Undocumented and unafraid: Chicagoan speaks out against ICE raids 2017-04-26
National groups respond to WCT's DCFS investigation 2017-04-26
Lambda Legal's Bon Foster event honors advocate 2017-04-26
National roundup: Idaho trans suit, skydiver case, Aaron Hernandez 2017-04-25
World news: Nigerian arrests, lesbians attacked, Chechnya items 2017-04-25
Reports: GOP urges Trump to reverse Obama-era protections 2017-04-25
Madigan lauds hate-crimes legislation after House passage 2017-04-25
Gay Ugandan Leader to Address Catholic Leaders on LGBT Criminalization 2017-04-25
HB40 clears its first hurdle with House passage 2017-04-25
Slain French officer was gay activist 2017-04-22
Criminal HIV-transmission charges dropped against suburban man 2017-04-21
'Bending Toward Justice' April 26 2017-04-20
Senators call for action on Chechen human rights violations against LGBTIs 2017-04-19
Madigan, 16 attorneys general file amicus brief in International Refugee case 2017-04-19
Personal PAC CEO decries Rauner HB 40 reversal 2017-04-19
Municipal ID ordinance passes Chicago City Council 44-4 2017-04-19
Alabama Senate passes anti-LGBTQ bill; HRC Alabama calls Gov. Ivey to reject 2017-04-19
Trailblazing judge found dead in N.Y. 2017-04-19
Howard Brown hosts transgender-focused 'A Call to Action' 2017-04-19
Relationships & Law Today: IRS notice allows same-sex estate tax exclusions 2017-04-19
National: Anti-hate campaigns, bisexual governor, another United situation 2017-04-18
World news: Chechnya, Elton John, South Korean army, Church of Scotland 2017-04-18
OutRight to Exxon, BP, and Shell, stand up for persecuted gay men In Chechnya 2017-04-18
U.N. Ambassador Nikki Haley Condemns LGBTQ Attacks in Chechnya 2017-04-16
Statewide Healthcare Day of Action seeks pledges to preserve benefits of ACA 2017-04-16
District 113 passes trans-inclusive policy revisions 2017-04-16
Homeless advocate: Uptown decision sets course for appeals 2017-04-16
ACLU releases statement on Governor Rauner's opposition to HB40 2017-04-14
Trump administration dismisses HB2 lawsuit 2017-04-14
Chicago mayor reaffirms ban on travel to NC due to anti-LGBTQ law 2017-04-13
ACLU of IL sues for documents on implementation of Trump Muslim ban 2017-04-12
Intimate partner violence related homicide in downtown Brooklyn, New York 2017-04-12
Darwin receives LAGBAC Vanguard Award 2017-04-12
National: Trans lawsuit, gay Alaska politicians, Glamour honors trans woman 2017-04-11
World news: Grindr arrest, Chinese 'boy band,' trans murder 2017-04-11
Illinois lawmakers to push for regulated, taxed adult use of marijuana 2017-04-11
New Nevada law: Child welfare, juvenile justice agencies must respect gender identity 2017-04-11
 



Copyright © 2017 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.

 

 

 

TRENDINGBREAKINGPHOTOS

Sponsor
Sponsor
Sponsor
Sponsor


 


Sponsor

Sponsor

About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage


About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Subscriptions      Distribution      Windy City Queercast     
Queercast Archives      Advertising  Rates      Deadlines      Advanced Search     
Press  Releases      Event Photos      Join WCMG  Email List      Email Blast     
Upcoming Events      Todays Events      Ongoing Events      Submit an Event      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Blogs      Spotlight  Video     
Classifieds      Real Estate      Place a  Classified     

Windy City Media Group produces Windy City Queercast, & publishes Windy City Times,
The Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community,
Nightspots, Out! Resource Guide, and Identity.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.