Victor Brooks, a member of the Illinois Prisoner Review Board, actively listened and asked a lot of questions to Bernina Mata's council regarding her petition for clemency on Oct. 23 at the James Thompson Center in Chicago.
Joey Mogul, an attorney with the People's Law Office, and her co-council Jed Stone represented Mata at the clemency hearing. Mata, age 22, is one of 142 death-row inmates in Illinois petitioning for clemency. Mata is asking for a Governor's pardon to convert her sentence from the death penalty to life in prison without parole. In 1999, she was convicted in Boone County courts of the first-degree murder of John Draheim in Belvidere in 1998. Mata's attorneys allege that the prosecution team biased the jury with homophobia and repeatedly used Mata's lesbianism as her motive to kill, calling her a "Hard Core Lesbian" and a "Man-hating Lesbian." The prosecution showed the jury books taken out of Mata's apartment titled Call Me Lesbian, Homosexualities and Best Lesbian Reading to further emphasize their argument that her lesbianism caused her to kill Draheim. Assistant State's attorney Troy C. Owens said in his closing arguments that "a normal heterosexual person would not be so offended by the ( victim's ) conduct as to murder."
The special committee on sexual orientation and gender identity of the Illinois State Bar Association has been interested in this case. The defense argued that the state's conduct violated the rules of evidence and ran contrary to due process, but it clearly did not violate the state's rules of professional conduct then in effect. Passed July 6, 2001 by the Illinois legislature under Illinois Rules of Professional Conduct Rule 8.4 ( a ) ( 5 ) forbids conduct that is prejudicial to the administration of justice, including adverse discriminatory treatments of litigants based on sexual orientation.
"The most shameful trials in history were the Scottsboro boys, young African American boys charged with the rape of a white woman. The prosecution in that trial said, 'I do this in every "nigger" rape trial.' I want this state to make the words 'hardcore lesbian' just as shameful, just as prejudicial," said Stone.
Her council said that the prosecution did not take into account Mata's history with depression, mental illness, substance abuse and childhood sexual abuse by her stepfather. Mata is an adult survivor of childhood sexual abuse and the foster care system and was at the time of the murder not taking the anti-psychotic medication prescribed by her doctor, because, like many other mental health patients, she thought she was cured of the original problem.
At Mata's trial, Dr. Frank Cushing testified that Mata suffered from depression and P.T.S.D. resultant from being sexually abused by a relative since the age of four. Cushing diagnosed her as sane at the time of the crime but unable to plan the crime because of mental illness.
Mata's defense at trial argued that Draheim, 43, attempted to rape her in her apartment after the two had been drinking at a bar and Mata killed Draheim in self-defense. However, the prosecution successfully argued the crime was pre-meditated. Pre-meditation was the lone factor, out of 20 possible factors, that prosecutors used to qualify Mata for the death penalty.
Mogul and Stone are arguing that the prosecution biased the jury with irrelevant homophobic statements about Mata's lesbianism and also that the crime was not pre-meditated. Mogul said that Mata's case has not had its first appeal yet. Capital cases are allowed seven chances to appeal in Illinois. However, Stone, co-council, said that after the Anti-Terrorist and Effective Death Penalty Act passed Congress in 1996, the defendant's habeus corpus rights have been severely restricted.
"In all the cases heard today by the board, they haven't heard one where the motive was that someone's sexuality caused them to kill," said Mogul.
Mogul read the board an affidavit from Ruthann Robson, a law professor at the City University of New York School of Law and author of much legal scholarship on gays and lesbians and the legal system. Robson's opinion said that the prosecution capitalized on prejudice against lesbians and negative stereotypes of lesbians to convince the jury that Mata acted in a cold, premeditated manner, and her lesbianism was the only permissible and aggravating factor used by the jury in this case. The use of sexual orientation as a single aggravating factor is something the Illinois Governor's Commission has recommended be abolished. She also said that the prosecution's reliance on Mata's lesbianism served as a de facto impermissible aggravating factor in the imposition of the death penalty. Mogul told the board that the prosecution ignored the Governor's Commission recommendation during the trial.
Colleen Griffin, assistant state's attorney, said in their rebuttal to the board that instead of telling the victim she was not interested she lured him back to her apartment with the intent to kill. She said that Mata told someone else in the bar that she planned on killing Draheim. Griffin said that Mata made up the stories about rape and self-defense and Mata bragged to friends after the murder, about taking a silver certificate belonging to Draheim and writing the murder date on it as a souvenir.
Draheim's sister Sharon Gahlbeck pleaded to the board against Mata's request. She told them that Draheim's murder had caused his five young children emotional hardship.
The Prisoner Review Board will report their decisions to Gov. George Ryan later in the year. Gov. Ryan will then have until his term expires in January 2003 to act upon their recommendations.
