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Woman Convicted of Murder, Sentenced by Jury to Probation and a $10,000 Fine:

The Brownsville Herald reports:

It took jurors two days to deliver their guilty verdict and another three days to sentence [Traci] Rhode to 10 years supervised release. Judge Ben Euresti tacked on a $10,000 fine to her punishment and she was released from the Carrizalez-Rucker Detention Center within a few hours.

"(They waited) for two days before they came out with their guilty verdict because they were not su," [Rhode's lawyer Ernesto] Gamez suspects .....

She has maintained her innocence throughout the trial, claiming Scott Rhode shot himself in their bedroom while she showered after a morning walk.

The prosecutors counter that Traci awoke at about 5 a.m. on Oct. 15, 2003, and shot her husband with a .45-caliber handgun while he slept.

She went jogging around their Briarwick Subdivision neighborhood then took a bath before calling police to report the shooting, they argued....

Prosecutors alleged that Traci killed so that she could collect her husband's life insurance policy and continue an affair with a co-worker.

She is the beneficiary of a $600,000 life and accidental death policy for Scott. It was not clear Thursday who would receive those benefits now that she's been convicted in his death.

"That's a civil issue that I'm not involved with," Gamez said. "The monies will probably go to the children, and rightfully so." ...

A new law passed by the Texas Legislature and effective since Sept. 1 prohibits murderers from receiving community supervised release. The law only applies to cases that take place after the effective date....

This is pretty puzzling to me; the jury convicted, which means they didn't buy the defense's "husband shot himself" theory. But if the wife deliberately killed him, what's the basis for the probation sentence for a deliberate murderer? Is there some factual twist that I'm not aware of (and that my quick searches haven't uncovered for me)? Is the suspicion that this is some odd compromise verdict, with the jury not being sure whether there was reasonable doubt, and deciding to convict but free instead of convicting and imprisoning or acquitting?

Note, incidentally, that Texas is one of several states (about five, I think) that provides for jury sentencing as at least an option in noncapital cases. In most states, sentencing in noncapital cases is done by the judge.

Aegis of Blogistan (mail):

Is there some factual twist that I'm not aware of (and that my quick searches haven't uncovered for me)?



The murderer was a woman and her victim was a husband.
12.19.2007 1:31pm
J. F. Thomas (mail):
Is there some factual twist that I'm not aware of

It's Texas--when it comes to killin' in Texas, they are just plain batshit crazy. The jury probably decided the husband "deserved killin'"--which in Texas includes offenses like not keeping your truck clean or tracking mud into the house on your cowboy boots.
12.19.2007 1:36pm
gcruse (mail) (www):
She's too pretty for prison (see Debra LaFave}.
12.19.2007 1:38pm
WHOI Jacket:
A woman killing her husband isn't a felony offense.
12.19.2007 1:43pm
Anderson (mail):
But if the wife deliberately killed him, what's the basis for the probation sentence for a deliberate murderer?

I guess they figure she's not likely to kill anybody she doesn't have an insurance policy on. On some theories of punishment, that's a plausible result. (Not on *my* theory, mind you.)
12.19.2007 1:48pm
AntonK (mail):

Is there some factual twist that I'm not aware of (and that my quick searches haven't uncovered for me)?

Liberal elements in the Texas Bar have become supremely adept at voir dire maneuvering, with the predictable result that juries like this are created.
12.19.2007 1:48pm
Tony Tutins (mail):

A woman killing her husband isn't a felony offense.

Don't let my wife find out.

Did she use the "bad husband" defense in mitigation? Any regular viewer of Lifetime's bad husband movies would vote for probation in a heartbeat.
12.19.2007 1:51pm
Anderson (mail):
Liberal elements in the Texas Bar have become supremely adept at voir dire maneuvering, with the predictable result that juries like this are created.

AntonK, would you please provide some links to explain why that's not just an obtuse remark?

I mean, since when does ANY trial attorney -- state, defense, plaintiff, whatever -- not try to manipulate the voir dire? That's how you win a case.
12.19.2007 1:52pm
LM (mail):

This is pretty puzzling to me; the jury convicted, which means they didn't buy the defense's "husband shot himself" theory.

Maybe not completely. Maybe as opposed to some being convinced of her guilt and others of her innocence, they were all pretty sure she was guilty, but not quite enough to form a moral certainty worthy of serious punishment. So they opted for "jury blurrification."
12.19.2007 2:04pm
Anderson (mail):
"jury blurrification."

That's a good one, LM.
12.19.2007 2:08pm
Respondent:
Texas recently changed the law- murders committed after the law was changed can only get deferred adjucation probation, but a jury can no longer sentence to probation, as reported here.
12.19.2007 2:09pm
Thomass (mail):
Anderson (mail):
""jury blurrification."

That's a good one, LM."

Yeah, I second it (good one) and think it is the best opinion based on what we have read.
12.19.2007 2:13pm
Boyd (mail) (www):
J.F. Thomas: Your terminology is a bit off. Speaking as a Texan, the correct legal defense, unique to Texas, I believe, is, "He needed killin'."

She's good lookin', and if her defense team successfully portrayed her late husband as being a rude a-hole ("rude" being a necessary component, elsewhere occasionally termed "ungentlemanly"), then this sentence would be a slam dunk. Also known as a "shore thang" in Texas.
12.19.2007 2:17pm
Cornellian (mail):
Texas never ceases to amaze.
12.19.2007 2:21pm
Hans Bader (mail):
The fact that the defendant was female was determinative.

There is massive sex discrimination in the criminal justice system, judging from the data collected by the federal Bureau of Justice Statistics ("BJS").

The BJS's study of Large Urban Counties found that an unprovoked killing of a husband by a wife, even when it leads to a conviction, generally results in a sentence averaging only 6 or 7 years.

By contrast, the sentence for the killing of a wife averages a more reasonable 17 years.

Moreover, this disparity understates the problem, since it is very hard to convict a female defendant in the first place, even if she plainly murdered her husband, since juries and judges tend to assume that any husband who is killed must have done something to deserve it, even if the husband is smaller than the wife.

BJS data does not show any bias by police departments against female domestic violence complainants, refuting the notion that women have no choice but to kill their husbands rather than seeking police protection, but many people falsely believe otherwise, based on daytime TV dramas that invariably depict wives' calls for help being disregarded by police.

Moreover, many husbands killed by their wives have no history of domestic violence at all. Life insurance appears to be a motive in many such cases (in many states, a wife who kills her husband can collect life insurance if the crime is considered involuntary manslaughter rather than murder; in a few states, even a wife who commits second-degree murder can collect life insurance on the husband she killed).

The Teressa Turner-Schaefer case is a case in point. She collected $400,000 in life insurance after killing her husband and being convicted for it. After getting away with murder, she received sympathy from neighbors and a puff piece in the local paper about how hard it was for her to live without her husband (and how mean men were for not wanting to date her).

(Courts used to think it was strange for an orphan to plead for mercy after killing his parents, based on his resulting status as an orphan, but something analogous happens all the time in criminal cases involving wives who kill).

The problem is not just in state courts. As even liberal judges like Justice Breyer have conceded, there is gender bias in the federal criminal justice system as well.

Federal judge Jack Tanner sentenced a woman to just a day in jail for maiming and attempting to kill her ex-husband, because he sought custody of their kids. The Ninth Circuit Court of Appeals initially upheld this ridiculous sentence in an en banc decision, then referred the case to a different judge for resentencing when, on remand on an unrelated issue, Judge Tanner made clear that his decision was based solely on the victim's gender.
12.19.2007 2:23pm
BruceM (mail) (www):
Seems to me either you trust the jury system or you don't.

Maybe the husband needed killin'. Maybe the defendant was so insanely hot that no male on the jury would convict her. Maybe there were extenuating circumstances that made 10 years probation (which is the maximum period of probation for such a felony) the right sentence.

It's a shame the legislature has taken away the option from the jury. Clearly, We The People do not trust We The People.

Over the course of his career, Racehorse Haynes got over 30 people probation on murder charges (mostly women who claimed their husbands beat them). About a year ago I met one of the alleged murderous women for whom he got a sentence of probation about 20 years ago. She seemed nice enough, certainly didn't seem like a killer to me. And she hadn't been in any legal trouble since her probation. But technically, she was a convicted murderer.
12.19.2007 2:23pm
Hans Bader (mail):
This sort of thing doesn't just happen in Texas. It reflects gender bias in favor of female criminals that is endemic in state and federal criminal justice systems.

And it's not about trusting juries, since evidentiary rules are selectively applied to conceal damaging evidence against female killers, while admitting unreliable hearsay evidence suggesting that the male victim "deserved" it. As a result, the jury often wears blinders when rendering its decision.

I earlier wrote about this phenomenon at CEI's Open Market blog:

Gender Bias in the Courts — and in The Washington Post
August 21, 2007
Hans Bader

For a glaring example of gender bias in the courts (and the media), you need look no further than The Washington Post story today by Tamara Jones, in which she commiserates with convicted felon Teressa Turner-Schaefer, who spent a mere 11 months in jail for killing her husband after an argument.

Now Turner-Schaefer gets to collect $400,000 in life insurance for killing her husband. In a plea bargain, she pleaded guilty to the crime of involuntary manslaughter, which, amazingly enough, doesn't bar you from collecting life insurance taken out on the person you killed.

It's not surprising that the prosecutors let her plead guilty to involuntary manslaughter, even if they thought she deliberately murdered her husband. Prosecutions of wives for killing their husbands are among the most difficult for prosecutors to bring, since judges and juries invariably assume that the victim must have done something to deserve it, even if the victim was blameless.

Even when a prosecutor succeeds in obtaining a conviction, penalties are often slight. (I wrote earlier in the Post about Mary Winkler, the Tennessee woman who served only two months in jail after her conviction for killing her preacher husband).

The federal Bureau of Justice Statistics' study of large urban counties found that wives who kill their husbands without provocation receive an average sentence of just six to seven years, while husbands who kill their wives receive a much more reasonable average sentence of 17 years.

And getting a conviction is quite difficult, since even the killing of a small, physically harmless man is often defended on the ground that his wife was suffering from "battered woman syndrome."

"Battered woman syndrome" is a concept popularized by Lenore Walker, who was later exposed by the Post's Ken Ringle for falsely claiming that watching the Super Bowl results in men beating their wives more. Walker defines "battered woman syndrome" so broadly that mere verbal abuse or quarreling qualifies. Despite being exposed for the Super Bowl hoax, Walker has been cited hundreds of times in judicial opinions.

Last year, in In re Nourn, 52 Cal.Rptr.3d 31 (2006), the California Court of Appeal cited the "battered woman syndrome" concept to overturn a woman's conviction for getting her abusive lover to kill an innocent third party, whom the woman accused of sexual impropriety in order to curry favor with her abuser. The "abuse excuse" thus claimed a victim who no one even alleged was abusive. (The California Supreme Court ordered that this controversial decision be stripped of any precedential value, but refused to review it or uphold the conviction).

It is easy for a female defendant to find a "rent-a-shrink" willing to testify that the husband she killed was a batterer — even if she in fact dominated and abused him, not vice versa. (The Bureau of Justice Statistics says that 1.5 million women and 800,000 men are physically battered every year). Such testimony for hire is admissible, while the testimony of the slain man's family that he was the victim is not.

The Maryland Court of Special Appeals, in an opinion by Judge Diana Motz (who was later appointed to the federal appeals court), held in Banks v. State, 608 A.2d 1249 (1992), that a man's family were not allowed to testify that he was in fear for his life of the wife who later killed him, and expressed such fear to them repeatedly. The court said his out-of-court statements were inadmissible hearsay. Yet an "expert" who never met the man was permitted to testify about battered women's syndrome in that very same case, depicting him a negative light.

By contrast, similarly relevant out-of-court statements about female victims are not so rigidly excluded. The Ninth Circuit Court of Appeals, for example, permitted diary entries about abuse of a female victim to be admitted at her husband's murder trial in Parle v. Runnels, 387 F.3d 1030 (2004).

The courts can be quite indulgent even when it is clear that a woman has deliberately attempted to kill her husband. In another case, U.S. v. Working, 224 F.3d 1093 (2001), the Ninth Circuit held that federal trial judge Jack Tanner (whom the Ninth Circuit later admitted was gender-biased against male victims) had the power to reduce a woman's sentence for deliberately maiming, and attempting to kill, her ex-husband (Tanner sentenced her to just one day in jail) because he had supposedly disturbed her emotionally by seeking custody of their kids. It is hard to imagine a court reducing a man's sentence for maiming his ex-wife on the grounds that she had the temerity to seek custody of their children. Such a man would rightly receive a long prison sentence, and no sympathy from the press.

www.openmarket.org/2007/08/21/
gender-bias-in-the-courts-and-in-the-washington-post/
12.19.2007 2:34pm
CEB:
The only explanation that makes any sense to me is that the jury didn't think she did it (or at least that the state didn't prove it BARD), but they wanted to prevent her from collecting the insurance policy, just in case. So now, if I'm not mistaken: no prison but no money.
12.19.2007 2:35pm
frankcross (mail):
Not to be too disconnected, but I think it is gender "bias" that would be justified by all the studies that Kingsley Browne pointed to to justify exclusion of women from the military. If women are by nature more emphatic and reluctant to kill, one might conclude that their killings are much more likely to have justification than killings by men.
12.19.2007 2:42pm
nunzio:
Shouldn't the fine be more than $10,000?
12.19.2007 2:45pm
GV_:
Hans, if you're going to completely distort a case, as you did with Working, then you might not want to provide a case citation so anyone with westlaw can read the case for themselves. The defendant there was not sentenced to one day in jail (she received five years and one day because of a mandatory minimum) and she did not try to kill her husband mrely because he was attempting to seek custody of his children. He, among other things, planned to accuse her of having an improper sexual relationship with his son (and her step son). She also claimed to be a victim of emotional and verbal abuse.

I'm not saying the sentence was justified and I'm not saying that given what happened to her, she was justified in trying to kill her husband. But you're flat out intentionally misleading people when you say she tried to kill her husband because he had the gall to request custody of their kids.

I'm not going to bother checking out the rest of your supposed facts, as I suspect I'll find similiar lies.
12.19.2007 3:00pm
Aegis of Blogistan (mail):
Not to be too disconnected, but I think it is gender "bias" that would be justified by all the studies that Kingsley Browne pointed to to justify exclusion of women from the military.

Except Professor Browne never made any argument that women should be excluded from the military.
12.19.2007 3:08pm
Hans Bader (mail):
GV_ is in error, and I was right.

The mandatory minimum GV_ cites was for a separate offense.

In the Ninth Circuit's Working decision, the defendant received (a) one day in jail for attempting to kill her husband (and maiming him), just as I said, and (b) five years on a weapons charge.

The Ninth Circuit held that the ridiculous one-day sentence for trying to kill her husband was permissible, as I noted above. If it had had its way, she might have received nothing more than that for all her crimes.

Fortunately, the courts' hands were tied by the mandatory minimum for the weapons charge.

So she got some real jail time, something that would not have happened in the absence of the fortuitous mandatory minimum.

On remand, the trial judge admitted he was giving the ridiculously short one-day sentence just because of the victim's gender, and the Ninth Circuit was reluctantly forced to overturn that sentence, not because it disagreed with it, but because the trial judge had openly violated the sentencing guidelines by basing his decision on gender, tainting the sentence.

GV says that the defendant "claimed to be a victim of emotional and verbal abuse."

Defendants in intimate homicide cases (both male and female) typically claim that, even when they are guilty as sin.

Often, "emotional and verbal abuse" is just another way of saying that a couple had heated arguments.

Arguments are not a justification for murder.
12.19.2007 3:11pm
stanneus :
The only way to even begin to right this kind of wrong is by raising societal awareness of how men's lives are undervalued. I suggest lobbying for the establishment of Departments of Masculine Studies at all colleges and universities.
12.19.2007 3:11pm
Elmer:
That picture in the Brownsville Herald seems to refute the too pretty for prison argument. Could she have used the Terrence and Philip defense?
12.19.2007 3:24pm
Hans Bader (mail):
In my above post, wrongly criticized by GV_, I said:

"In another case, U.S. v. Working, 224 F.3d 1093 (2001), the Ninth Circuit held that federal trial judge Jack Tanner (whom the Ninth Circuit later admitted was gender-biased against male victims) had the power to reduce a woman's sentence for deliberately maiming, and attempting to kill, her ex-husband (Tanner sentenced her to just one day in jail)."

I was right. Tanner did sentence her to one-day in jail.

The Ninth Circuit, held that Judge Tanner's ridiculously short one-day sentence for this offense -- attempting to kill her husband -- was permissible. It also, however, applied a five-year minimum on a different weapons possession charge.

GV_'s claim that she received five years and one day is based on combining the two sentences, although a court's predilections are obviously illustrated better by the sentences it has control over (like the one day sentence for attempted homicide, than by the sentences as to which its hands are tied (i.e., mandatory minimum sentences for weapons possession), and this post focuses on intimate homicides, not weapons possession.

GV_ chides for giving the citation to this case, then allegedly "lying" about it. But as you can see from the case, my description of Judge Tanner's ruling was accurate, as was my passage reprinted above describing the fact that the Ninth Circuit deemed his stated reasons for reducing her sentence to be permissible (although, as I noted in my above posts, it later referred the case to another judge when Tanner made clear that the victim's and defendant's genders, not just those stated reasons, dictated the sentence he gave).
12.19.2007 3:25pm
Anderson (mail):
Is there a Mrs. Bader, perchance?
12.19.2007 3:26pm
Spartacus (www):
That picture in the Brownsville Herald seems to refute the too pretty for prison argument.

Says who? She don't look too bad to me, definitely above the average juror's expectations. Perhaps she "manipulated" the jury?
12.19.2007 3:31pm
Don't Cry For Me, Antonin Scalia... (mail):
Is there a Mrs. Bader, perchance?

Just because Hans Bader is a public figure, that doesn't mean this kind of male-bashing sexism is appropriate. Or anything more than projected self-loathing.
12.19.2007 3:31pm
Hans Bader (mail):
Oops. I should have said "weapons charge," not "weapons possession charge," in my comment above.

In my above post, I described Judge Tanner giving the defendant in Working, who attempted to kill her ex-husband, one day in jail, which he in fact did, and the Ninth Circuit upholding his stated reasons for extreme leniency, which it in fact did.

However, the Ninth Circuit only held the one-day sentence was permissible for the stated reasons as to the defendant's most serious offense (trying to kill her husband, resulting in his maiming). It differed with Judge Tanner in that it imposed a mandatory 5-year minimum sentence for the different weapons charge, where its hands (thankfully) were tied.

The latter sentence is alluded to in GV_'s post, since he combines the two different offenses into an overall sentence of 5 years and one day (which Judge Tanner did not impose, and which I accordingly (correctly) did not attribute to Judge Tanner in my above comments characterizing his ruling.
12.19.2007 3:33pm
An0n:
"Maybe the defendant was so insanely hot that no male on the jury would convict her."

She really isn't all that hot. I'd convict her in a heartbeat:

Photo 1, Photo 2
12.19.2007 3:35pm
Hans Bader (mail):
Yes, Anderson, there is a Mrs. Bader.

(And there is no "ex-Mrs. Bader," either, in case you're wondering).

Incidentally, my wife differs with me on a number of issues, but not this one. Her outlook on this particular issue is similar to mine.
12.19.2007 3:37pm
k parker (mail):
Anderson
since when does ANY trial attorney -- state, defense, plaintiff, whatever -- not try to manipulate the voir dire? That's how you win a case. [emphasis added]
Awesome candor, man, but aren't you going to be in trouble with the Lawyer's Union for stating this so plainly in front of outsiders?
12.19.2007 4:10pm
Anderson (mail):
Awesome candor, man, but aren't you going to be in trouble with the Lawyer's Union for stating this so plainly in front of outsiders?

It's not exactly a secret. Just today I got in my copy of Modern Trial Advocacy by Steven Lubet. Jury selection is chapter 14, including "Voir Dire Strategies."
12.19.2007 4:14pm
Muskrat (mail):
I can only assume that snoring was involved.
12.19.2007 4:22pm
Elmer:

She don't look too bad to me,

I didn't say she looked bad. She might even get leniency when stopped for speeding. Murder, though, should require extraordinarily good looks before probation is even considered. Even then, I'd oppose it. I think the proper role model is Batman. Despite his strong attraction to Catwoman, he only agreed to a date after she got out of jail. On another occasion, when they were considering joining forces, Batman firmly disapproved of her suggestion to kill Robin. If he could hold fast under that much temptation, I'd expect no less from a juror who has no personal relationship with the defendant.
12.19.2007 4:24pm
LM (mail):
An0n,

Come on, she's not that bad looking. But that first pic does make wonder if Hans Bader can tell us what kind of sentences women typically get for killing photographers.
12.19.2007 4:27pm
BruceM (mail) (www):
nunzio: $10,000 is the maximum fine authorized by Texas law for a 1st degree felony.

Okay I agree the "too hot to be convicted" theory doesn't apply here, so it must be something else.

It could always be a compromise verdict. Not all the jurors agree on guilt, so they agree that they'll find her guilty but give her probation. That happens more often that we like to admit. I'll bet a cup of coffee that's what happened here.
12.19.2007 4:27pm
Virginian:

"Maybe the defendant was so insanely hot that no male on the jury would convict her."

She really isn't all that hot. I'd convict her in a heartbeat:

Photo 1, Photo 2


She is a real "two-face." I am guessing that Photo 2 showed up for trial.
12.19.2007 4:32pm
Siona Sthrunch (mail):
Interesting. I hope someone can access the transcripts and find out more detail on this.

We spend so much time philosophizing about legal theories, but what really is impacting the jury's verdict?
12.19.2007 4:40pm
GV_:
Bader, the judge imposed the one-day sentence knowing that the defendant was already going to serve five years for the gun charge. Thus, he knew that the one day sentence was really a five year and one day sentence. I once had a client sentenced to 57 years in prison for gun charges because of mandatory minimums. He was also convicted of robbing two banks. Because the judge knew he would already be serving 57 years for the gun charges, he was sentenced to one day for the robberies, to be served concurrently with the 57-year sentence. It would be completely misleading to say the judge sentenced the defendant to one day in jail for robbing two banks.

You later wrote: "Often, 'emotional and verbal abuse' is just another way of saying that a couple had heated arguments. Arguments are not a justification for murder." I expressly said that this was not a justification for murder. Instead, I was chiding you for completely misrepresenting her supposed reason for trying to kill her husband. I assume you concede at this point that your statement that she claimed she tried to kill him only because he wanted custody of their kids is wrong?
12.19.2007 4:50pm
BruceM (mail) (www):
Virginian, indeed, she certainly looks more innocent in photo #2 (I think it has to do with lighting and I'm sure photo #1 is the more accurate depiction of her appearance).
12.19.2007 4:57pm
Ak Mike (mail):
Elmer - I assume then that you approve of Sam Spade, who turned in Bridget O'Shaugnessy to be hanged for murder despite being in love with her (he did say that if she got prison he would wait for her)?
12.19.2007 5:00pm
LM (mail):
Elmer,

They still may have been writing the script when Sean Young lobbied for the role, which might explain Batman's caution.
12.19.2007 5:02pm
An0n:
No, she's not that bad looking. But she's certainly not too hot to convict. Not for murder.
12.19.2007 5:17pm
Tio:
I find it very difficult to feel outrage over her sentance, given that for years, men were allowed to beat their wives severely with impunity (see, e.g., the thumb rule). No, I don't think that historical brutality justifies the murder of an individual man, but it does keep me from anything even close to outrage. I'm not sure there's anything shockingly wrong about cutting abused women a little slack given the law's history of ignoring their plight.
12.19.2007 5:49pm
Alcyoneus (mail):

Tio wrote, "I find it very difficult to feel outrage over her sentance, given that for years, men were allowed to beat their wives severely with impunity (see, e.g., the thumb rule)."

You mean the "thumb rule" that has been debunked many times over?

Letting murderers go free isn't "cutting a little slack." It's injustice.

It is also tacit admission that women are inferior to men. Men abused by other men are not "cut a little slack" under self-defense law. Why? IT can only be that people like Tio see some as psychologically inferior to men, unable to help themselves. The helpless woman just HAD to kill.

Bullshit.
12.19.2007 6:03pm
Hans Bader (mail):
Tio is mistaken. Men were not allowed to beat their wives severely with impunity, at least not in the U.S.

The thumb rule is largely mythical, as Cathy Young and others have pointed out. Some American courts accepted the idea of "mild chastisement" as an exception to criminal laws against abuse, but it was seldom if ever applied. See the amicus briefs for respondents in United States v. Morrison, 529 U.S. 598 (2000).

In Puritan New England way back in the 17th Century, there were already stern punishments for domestic abusers.

In civil law, there was no discrimination against women: both men and women alike had no remedy until the 20th century, when women began to receive some judicial redress as the marital tort immunity began to slowly be abrogated.

Indeed, the marital tort immunity was applied with greater vigor to male victims than female victims.

In the late 1950s, both the North Carolina courts, and the South Carolina courts, ruled that men could not sue their wives for injuries resulting from domestic violence (owing to the marital tort immunity), even though those same courts had earlier ruled that women could sue their husbands for domestic violence (owing to the Married Women's emancipation acts passed generations before).

(The legislatures of North and South Carolina override this discriminatory result).

The last rigorous application of the marital tort immunity was in Virginia, less than 30 years ago, where the state Supreme Court barred a man from suing after being deliberately maimed by his wife. (By contrast, some trial judges in Virginia had allowed wives to sue their abusive husbands under an "intentional tort" exception to marital tort immunity).

The legislature abrogated this decision.
12.19.2007 6:06pm
Hans Bader (mail):
Tio, in a comment above, wrongly justifies this absurdly short (and sexist) sentence by saying that "cutting abused women a little slack" is a good thing and claiming that men historically got away with spousal abuse so that turnabout is fair play.

But neither the news story nor Professor Volokh's blog post about it suggests that the defendant was in any way "abused."

Tio simply assumes that any man who is murdered by a women must have been abusive -- a clearly unfounded assumption, given the many documented cases of men murdered simply for life insurance -- and ignores possible motivations for this very murder, such as life insurance.

Tio's attitudes go a long way to explain why, in this country, wives who kill their husbands without any provocation receive dramatically shorter sentences than husbands who kill their wives.

According to the Bureau of Justice Statistics' study of Large Urban Counties, the wives receive a sentence of only 6 to 7 years on average, for unprovoked killings, while the husbands receive a more reasonable average sentence of 17 years.

Even in the past, society did not turn a blind eye to domestic violence, as I noted in an above post (and as the amicus briefs for respondents documented in United States v. Morrison, 529 U.S. 598 (2000)).
12.19.2007 6:17pm
LM (mail):

I'm not sure there's anything shockingly wrong about cutting abused women a little slack given the law's history of ignoring their plight.

Tio, I agree that anyone who has actually been abused deserves slack. But criminal courts are not the place for affirmative action. Your recommendation is a recipe for turning criminal justice into a proxy for settling old group scores.
12.19.2007 6:21pm
Henri Le Compte (mail):
Is there some factual twist that I'm not aware of

Hmmm... how many women were on the jury?

Tio:
I love guys like you! For some reason you are convinced that bad behavior by someone else, at another time and place, separated by centuries and thousands of miles, is not only relevant, but exculpatory (!!) for crimes committed today.

I just don't get it. And it is exactly why guys like me find so many arguments of the far Left "irrational." Just makes no sense-- not intellectually, not emotionally.
12.19.2007 6:27pm
ReaderY:
If the jury wasn't sure enough to impose a stiff sentence with confidence, they should have acquited. I agree this type of verdict and sentence should not be a legally available option.
12.19.2007 6:42pm
BruceM (mail) (www):
ReaderY: by that logic, juries that convict should only dole out heavy sentences (because they were confident beyond a reasonable doubt that the defendant was guilty).

That's a load of crap, my friend.
12.19.2007 7:11pm
LM (mail):
Hans,

Do you dispute that all other things being equal, women are more likely to be physically intimidated and abused by men than the reverse, if only because of the disparity in size and testosterone-driven aggression? Then, is the greater likelihood of male on female abuse a legitimate item for a jury or judge to consider in assessing the credibility of a female defendant's claim that such abuse occurred? (I take for granted (I hope!) that it wouldn't be admissible for proving guilt against a male defendant.)

I'm too many years removed from my semester apiece of criminal law and evidence to remember if we touched on any such or related issues, but my uninformed gut thinks this argument by a defendant is entirely appropriate. Please don't confuse it with Tio's suggestion that we allow juries to consider questions of social justice in deciding individual guilt. I'm talking only as a matter of establishing the credibility of a defendant's claim of prior abuse; aren't such trends relevant? And if they have been treated as such, couldn't it explain at least some of the disparity in sentencing you cite? Of course if they're inadmissible... never mind.
12.19.2007 7:17pm
Cornellian (mail):
Despite his strong attraction to Catwoman, he only agreed to a date after she got out of jail. On another occasion, when they were considering joining forces, Batman firmly disapproved of her suggestion to kill Robin. If he could hold fast under that much temptation, I'd expect no less from a juror who has no personal relationship with the defendant.

Are we talking Michelle Pfeiffer Catwoman or Halle Berry Catwoman?
12.19.2007 7:18pm
Brian G (mail) (www):
Hey Elmer,

Which Terrence and Philip defense are you talking about? "Find her innocent or else she'll kill you?" Or was it, "She loves puppies and hates mean things?" Or, was it, "Would a murderer go to zoo and feed animals like this? Of course not!?" Or was it all of the above.

You made my day with that comment Elmer.
12.19.2007 7:29pm
theobromophile (www):

The only explanation that makes any sense to me is that the jury didn't think she did it (or at least that the state didn't prove it BARD), but they wanted to prevent her from collecting the insurance policy, just in case. So now, if I'm not mistaken: no prison but no money.

Or maybe it went the other way. Does his life insurance pay out (I think I read "life and accidental death") if he commits suicide? Acquittal = probable suicide (of course, there is a difference between suicide on preponderance of evidence and not guilty BARD), ergo, neither she nor the kids collects. So they are left with a dead dad and no money to support themselves.

(A quick google search shows that a lot of life insurance policies have a suicide provision; usually, you can't collect if suicide within two years of obtaining the policy.)
12.19.2007 7:29pm
theobromophile (www):
In the alternative, the jury may have thought that her philandering lead to her husband's death, wanted to punish her for it, but didn't want her to go to prison for the rest of her life. It comes across as, "You are morally guilty of doing something horribly wrong, but, sadly, adultery isn't a crime."
12.19.2007 7:34pm
LM (mail):
I think suicide usually invalidates the AD&D provision, which typically accounts for half the total.
12.19.2007 7:39pm
pete (mail) (www):
I found some other news stories that are listed below and not one of them makes the case that Rhode was ever abused or ever claimed to be abused in any way. They do say that the couple had met with a divorce lawyer recently because of her alleged infidelities. So either the husband was depressed at the thought of divorce and shot himself or she killed him to get the money. He did not die until the day after he was shot. Police testified that his left hand did not have blood on it even though they found blood on the gun grip that was in his left hand when they arrived. Several of the stories say that the children begged the jury not to take their mother away and that alone might have swayed the jury to avoid punishering her even if they thought she was guilty.

Whether or not to believe her is another issue as she claims she never had an affair, but according to one of the stories a witness claimed during the trial that she had kissed him. Also she will likely lose her nurse's license and will have to stay in the Rio Grande Valley for the next 10 years.

http://www.valleymorningstar.com/ articles/rhode_13308___
article.html/scott_police.html

http://www.themonitor.com/ articles/traci_7035___
article.html/rhode_monday.html

http://www.team4news.com/Global/story.asp
S=7464687&nav=0w0vdylV

http://www.dailydem.com/ articles/2007/12/07/news/news4.txt
12.19.2007 7:41pm
Elmer:
LM: I was referring to Julie Newmar and Adam West on the TV show.

Ak Mike: I've never read any Spade stories, but it sounds as if he made the right choice for his genre.
12.19.2007 7:48pm
Hewart:
I think it was the Julie Newmar Catwoman.

Rrrowr!
12.19.2007 8:04pm
LM (mail):
Yow! Julie Newmar makes Sean Young seem down to earth.
12.19.2007 8:11pm
Phantom (mail):
"Also she . . . will have to stay in the Rio Grande Valley for the next 10 years"

And isn't that punishment enough?

--PtM
12.19.2007 8:16pm
Elmer:
Brian G: I was referring to the farting-with-impeccable-comic-timing defense. I am unaware of the defenses you mentioned. Obviously, it's time for some continuing legal education.
12.19.2007 8:36pm
Brian G (mail) (www):
Elmer,

Watch here for your CLE.

Thanks for the smile.
12.19.2007 9:14pm
Redlands (mail):
If her defense was, "I didn't do it or SODDI (some other dude did it)," hubby's character trait for violence is irrelevant, right?
As for the result, welcome to the wonderful world criminal juries.
12.19.2007 9:14pm
LM (mail):

If her defense was, "I didn't do it or SODDI (some other dude did it)," hubby's character trait for violence is irrelevant, right?

Not irrelevant to the next best, albeit inconsistent alternative argument. And I wasn't aware that most criminal defense lawyers would let a little inconcsistency stand in the way of throwing the kitchen sink of reasonable doubts at a jury.
12.19.2007 10:03pm
Cornellian (mail):
Several of the stories say that the children begged the jury not to take their mother away and that alone might have swayed the jury to avoid punishering her even if they thought she was guilty.

They let that evidence in during the guilt phase instead of just the sentencing phase? Wow.
12.19.2007 11:36pm
pete (mail) (www):

They let that evidence in during the guilt phase instead of just the sentencing phase? Wow.


No they let it in during the sentencing phase, at least that is what I take from the news stories which unfortunately are not very detailed or comprehensive. The jury may have thought she was guilty, but after hearing the kids in the sentencing phase beg for mercy only sentenced her to probation because they did not want the children to suffer any more than they already have.
12.20.2007 9:45am
WHOI Jacket:
Note to self: Bring kids to sentencing phase.
12.20.2007 10:23am
K Parker (mail):
Anderson,

No problem if you had said it was an important component, but "That's how you win a case" sure sounds like you mean it's sine qua non, that you're talking about a jury stacked in your favor rather then just weeding out the obviously biased against you. The fact that the subject is just "part" of 14+ chapters says that maybe your original remark was more than a bit overstated perhaps?

I must say, the one time I was in a jury pool voir dire seemed completely routine and noncontroversial; it was a lawsuit against a school district and nobody on the defense seemed at all bothered that a large part of the pool were current or former school-district employees, as long as the district wasn't the one in the case. (It was summertime, and a lot of teachers had obviously asked to have their jury duty deferred until then.)
12.20.2007 10:29am
Tio:
Just to clarify (given that some people, like Hans and Henri, are deliberately mistaking what I posted earlier), I already said that I do not think the historical abuse of women justifies this woman's light sentance.


No, I don't think that historical brutality justifies the murder of an individual man, but it does keep me from anything even close to outrage.

As is clear, I merely said I could not feel outraged at her sentance. My original post was driven by my surprise at the bitter vehemence of some posters. Women have been abused for centuries -- yes, this woman may have deserved a jail sentence, but geez, have a little compassion! And please don't misquote me . . .
12.20.2007 2:09pm
WHOI Jacket:
If it doesn't deserve outrage, than how does that parse with your first sentence? What does it warrant, a head scratch?
12.20.2007 2:19pm
hattio1:
Tio;
Saying that historical brutality doesn't justify the murder of any individual man, and saying that it doesnt' justify a light sentence are two very different things. What you actually said regarding sentencing was

I'm not sure there's anything shockingly wrong about cutting abused women a little slack given the law's history of ignoring their plight.

Interpreting you as supporting this woman's light sentence under the assumption she was abused is not a great stretch based on what you actually did say.
12.20.2007 2:24pm