The Wrongful Conviction of the LGBTQ+ Community and Immigrants
by Michele Canny (she/her), UC Law San Francisco
2024 Oasis Law Student Intern
With a national prison rate of about 1.9 million people, it is estimated that 2.5 to 5 percent of the prison population is wrongfully incarcerated. This translates to around 47,500 to 95,000 individuals whose liberty has been taken away because of a crime they did not commit. Since the first time DNA testing was used in 1989 to exonerate someone who was wrongfully convicted, human rights organizations all over the United States have worked tirelessly to overturn convictions of individuals who have spent, on average, nine years in prison. Many exonerated individuals experience a loss like no other: time, family, and freedom. While reparations are necessary for these individuals, some things cannot be replaced.
How do these wrongful convictions occur?
Researchers from the National Registry of Exonerations have found several reasons why someone may be wrongfully convicted, including eyewitness error, false confessions, faulty forensic science, and official misconduct. However, factors such as race, gender, and socioeconomic status also play a role in identifying those who are most likely to be targets of a wrongful conviction. Similar to the statistics on the demographics of the overall prison population, Black and Latino men are overrepresented in those who have been wrongfully convicted. Yet, there is little research on the role one’s immigration status, sexual orientation and gender identity might play in one’s likelihood of being wrongfully convicted.
Throughout history, both xenophobia and homophobia have led to the over criminalization of LGBTQ+ people of color. With laws against homosexuality still on the books in 12 states (although unenforceable due to the Supreme Court’s decision in Lawrence v. Texas) and a rise in anti-LGBTQ legislation, it is clear that anti-LGBTQ+ sentiment is still embedded in our criminal legal system. In immigration law, we encounter this as well. There is a long history in U.S. policy where fear of the “other” has been used to over-criminalize immigrants and implement stricter immigration and border policies for immigrants of color. It is no surprise then that the intersection of immigration status and sexual orientation and/or gender identity has made LGBTQ+ immigrants more susceptible to being wrongfully convicted.
Karla Baday’s Story
The Northern California Innocence Project (NCIP) is a Bay Area-based legal nonprofit fighting to overturn wrongful convictions. In 2019, the organization, along with pro bono attorneys from Duane Morris LLP, helped to exonerate Karla Baday who had been wrongly convicted in 2002 of child molestation. From a young age, Karla knew she identified as LGBTQ+, but living in Honduras limited her ability to be out and open. When she was 21 years old, Karla left her home and fled to the United States, where she believed she could live a life truly as herself. When she arrived, she first settled in Southern California with her brother, and then eventually moved to the Central Valley. There, Karla met a woman named Maria, with whom she would begin a relationship. Maria had four children, and they welcomed Karla happily into their lives. However, after a year of living together, Karla described their relationship as becoming tumultuous, which ultimately led Karla to leave and live with her mother in Southern California. In early 2002, Karla returned later to celebrate Maria’s birthday, but the trip ended with a false accusation of child molestation against Karla made by Maria on behalf of one of her children.
During trial proceedings, Karla faced further hardships as she spoke limited English, and her attorney attempted to convince her to take a plea deal rather than listen to her claim of innocence. Catherine Boyle, volunteer attorney for NCIP, said that upon reviewing Karla’s case, she found the trial transcript to be filled with numerous comments made about Karla’s sexual orientation by both prosecution and defense attorneys. Boyle noted that the repeated mentions of Karla’s sexual orientation and relationship with her female partner at trial “served to insinuate that Ms. Baday was engaged in deviant behavior and, thus, more likely to engage in the alleged acts. Both the prosecution and even the defense stressed Ms. Baday’s sexual orientation, playing into gay prejudice to create the implication of guilt to a conservative jury in Kings County.” Both Karla’s attorneys and a system that already labeled her as a criminal even before she was convicted, failed her. During NCIP’s investigation into Karla’s case, NCIP and Duane Morris interviewed one of her attorneys who initially claimed he did not remember who she was until he heard she was from Honduras and said, “Oh, that gay girl,” and “If she weren’t here illegally then she would not have committed the crime.” Karla was convicted and sentenced to 45 years to life.
In prison, Karla quickly learned to write and speak in English so that she could find someone to help prove her innocence. In 2008, Karla contacted NCIP about her case, and NCIP began investigating. They worked on Karla’s case for the next nine years. In 2017, NCIP and Duane Morris petitioned for a writ of Habeas Corpus on Karla’s behalf. The petition demonstrated that Karla’s conviction was the result of false testimony, faulty forensic science, and ineffective assistance of counsel. In 2019, 17 years after Karla was convicted, the District Attorney of Kings County conceded that the evidence presented at trial was false and that her conviction should be reversed. Unfortunately, her nightmare did not end there.
While Karla waited to be processed out of the county jail, Immigration and Customs Enforcement (ICE) detained Karla and removed her from the jail where she was being held through a back exit without notifying her attorneys who were waiting in the lobby. Karla told ICE that she had attorneys waiting for her, but they ignored her request to inform them. Karla was detained at Otay Mesa Detention Facility for more than one month until United States Immigration Judge Olga Attia released her on bond in June 2019. In August 2020, Karla filed for asylum and is awaiting further action from the Department of Homeland Security.
The Unique Vulnerability of LGBTQ+ Immigrants
Karla is not alone. Stories like Karla’s exist all over the country, including the case of the “San Antonio Four,” in which four Latina lesbians were wrongfully convicted for sexually assaulting two young girls during the Satanic Panic of the 1990s. The women spent nearly 15 years in prison and were finally exonerated in 2016, with their records expunged in 2018. According to a Prison Policy Initiative Report, “[Members of the LGBTQ+ community] are arrested, incarcerated, and subjected to community supervision at significantly higher rates than straight and cisgender people,” demonstrating how overrepresented they are in the criminal legal system. Furthermore, researchers estimate that 20% of the youth in the juvenile system identify as LGBTQ+. There is significantly less data on trans individuals, but according to the National Center for Transgender Equality and the National Gay and Lesbian Task Force, one in five trans people who have had police contact reported being harassed by police, including 38% of Black trans individuals.
Those who are undocumented face further disparaging treatment in the criminal legal system. According to a recent study published in the UCLA Law Review, innocent Latine immigrants are more likely to plead guilty to crimes they did not commit under the threat of deportation, and law enforcement officers have used witnesses’ immigration statuses to manipulate their testimony. Language barriers also create a barrier to justice. The same study found that about 40% of Latine exonerees who falsely confessed to crimes said that they “did not fully understand spoken English.”
Just like what occurred in Karla’s case, even after a wrongful conviction is overturned, exonerees can still face deportation or further incarceration because of their immigration status. While Oasis does not represent clients in criminal or post-conviction relief cases, we do support LGBTQ+ immigrants with immigration relief and navigate the oftentimes devastating consequences of criminal convictions, that stem from an unfair system, with them. What happened to Karla illustrates the unique vulnerability our clients face both in their home countries and in the U.S. We will continue to uplift our clients’ identities (as queer and trans immigrants) while recognizing their susceptibility to negative and harmful treatment by both the criminal and immigration legal systems in the United States.
Published July 11, 2024