Tribune

Lemak case complicates debate over punishment

By Ted Gregory

December 23, 2001

Months after Marilyn Lemak was charged with killing her children, DuPage County State's Attorney Joseph E. Birkett said he would seek the death penalty against the Naperville nurse.

 But moments after jurors returned a resounding verdict of guilty, Birkett--one of the state's strongest death penalty advocates--signaled that he would not press ahead immediately to send Lemak to Death Row.

 With presentencing hearings set for February, Birkett said the matter is under review, a process that will include Lemak's defense lawyers and her ex-husband, David Lemak, the father of the slain children.

 "You have to keep an open mind, as we have," Birkett said after Wednesday's verdict.

 But his hesitation also reflects what many in the justice system readily acknowledge: America is highly uncomfortable with the concept of executing women.

 It has been a complicated issue throughout history, and Marilyn Lemak's case is a particularly thorny one. The decision on whether to pursue the death penalty could have political consequences for Birkett, who is running for attorney general, although he says those factors will not affect his decision. He is bound by law to consider the wishes of the victims' relatives, who so far have declined to call for her execution.

 Roughly 20,000 people--only 561 of them women--have been executed in U.S. history. The first documented execution of a woman occurred in 1632, when Jane Champion swung from a Virginia gallows.

 Last year, 85 people were executed, two of them women. Of the 159 inmates on Illinois' Death Row, only four are female.

 The figures are not as disproportionate as they appear, because women account for a far lower percentage of violent crime than men. About one in eight murder arrests, or about 13 percent, are women.

 But experts say other factors are also at work. Politically, pursuing the death penalty against women typically fails to gain traction with voters, they say. And judges and jurors often perceive women--especially mothers--more sympathetically than men.

 Gaining empathy

 "Historically, there is this phenomenon where certain perpetrators more likely than others seem to gain the empathy of jurors," said Michelle Oberman, a DePaul University College of Law professor and co-author of the book, "Mothers Who Kill Their Children." The book, published in September, is a study of 219 cases of women who killed their children in the U.S. from 1990 to 1999.

 "The sense has been that when you look really closely at these cases," Oberman added, "there's blood on more than one set of hands. Because of that, we seem to see sympathy for what otherwise would be a monstrous character."

 Since 1984, eight women have been put to death in the U.S. Only one of those was a mother who killed her children, and her death came only after she waived appeals.

 Susan Smith, the South Carolina woman who drowned her two young sons, was spared the death penalty by a jury in 1995. A year later, Amanda Wallace of Chicago was convicted of hanging her 3-year-old son, Joseph, but a judge declined to impose the death penalty. Wallace committed suicide in prison.

 It took Birkett 11 months to decide to seek the death penalty against Lemak, who, after discovering her estranged husband was dating another woman, sedated then suffocated her 7-year-old and 3-year-old sons and 6-year-old daughter in the family's Victorian home. Lemak, a former surgical nurse, then slashed her wrist in a suicide attempt.

 "We checked all the relevant facts, and it is the right decision, if proven guilty," Birkett said at the time, "considering the magnitude of the crime."

 After the verdict, though, Birkett said, "it's a matter that is continuously reviewed all the way up." He said he would "extend an opportunity" to defense lawyers "to bring forward to us any additional information" to help with the decision.

 The Garcia case

 The last time a state execution loomed over a female inmate in Illinois was 1995, when Guinevere Garcia asked the Illinois Supreme Court and then-Gov. Jim Edgar to abandon all efforts to stop her execution.

 Garcia had been sent to Death Row for the 1991 murder of her husband, which she committed about four months after being released from prison for killing her daughter in 1977.

Against her wishes, however, Edgar commuted her sentence to life in prison about 14 hours before she was to be given the lethal injection. Advocates cited her troubled history of sexual abuse, alcoholism, prostitution and emotional instability.

 Edgar said evidence showed Garcia intended only to rob her abusive husband. "It was an offense comparable to those judges and jurors have determined over and over again should not be punishable by death," Edgar said then.

 But Victor Streib, a law professor at Ohio Northern University who has studied capital punishment against women for 25 years, is skeptical.

 "Many men on Death Row have exactly the same background as she did," he said.

 Franklin Delano Roosevelt was president the last time a woman was executed in Illinois. Marie Porter was hanged in 1938 for murdering her brother for his life insurance benefits.

 None of the four women currently on Death Row in Illinois were sent there for killing their children. Bernina Mata, 31, killed a 43-year-old man in 1998 in Belvidere. Latasha Pulliam, 30, murdered the 6-year-old daughter of a neighbor in 1991 in Chicago. Dorothy Williams, 47, robbed and murdered a 97-year-old woman in 1989 in Chicago. And Jacqueline Annette Williams, 35, was convicted in the murders of Debra Evans, 28, Evans' 10-year-old daughter Samantha, and 7-year-old son Joshua in 1995 in Addison.

 Although Birkett says his decision will not be affected by political considerations, voters may very well be watching.

 "When it comes to seeking the death penalty for women, [public perception] is at least muted or confused," Streib said. He added that prosecutors who pursue the death penalty for men typically gain a few points with voters. But that jump does not occur when it's a woman.

 Birkett has an emotional investment in the case as well. He has stated repeatedly his sympathy and respect for David Lemak and his parents, as well as Marilyn Lemak's parents, William and Carol Morrissey.

 A wrenching experience

 If Judge George Bakalis--who has never decided a capital punishment case--sentences Marilyn Lemak to death, it would likely trigger a long and expensive appeals process.

 Lemak's family and friends would be subjected to the wrenching experience of testifying again and again, of hearing nightmarish testimony, of viewing the evidence--the children's sleep toys, the empty medicine bottles, the blades used by Lemak to slit her wrist, her bloody wedding dress.

 Marilyn Lemak's parents would continue to drain their financial resources to fund their daughter's defense, and they would wait, likely for years, before the case is resolved.

 "It's going to be an emotional roller coaster for everyone involved," said Terry Ekl, a prominent defense attorney and confidant of Birkett's.

 But if Ekl were making the decision, it would be an easy one, he said. The evidence supporting capital punishment for Lemak is weak, he said. She has no previous criminal history, and despite the jury's rejection of the insanity defense, she clearly suffers from some mental illness, he said. "I just don't see any value in putting these people through any more," Ekl said of the families.