The New York Times, Nov. 27, 2002
By ADAM LIPTAK
LINCOLN, Ill., Nov. 20 — Tabitha Pollock was sleeping when her boyfriend killed her 3-year-old daughter. For failing to anticipate that crime, Ms. Pollock was convicted of first-degree murder and has served 7 years of her 36-year sentence.
Last month, the Illinois Supreme Court overturned Ms. Pollock’s conviction, saying the prosecution’s theory — that she should have known that her boyfriend, Scott English, who is serving a life sentence, was going to murder her child — has no basis in the law. Barring something unusual, she will be released from the prison here in the next few weeks.
The case raises the question of whether some judges, prosecutors and communities ask too much of mothers and are prepared to punish them, even at the expense of the surviving family, when things go wrong. Legal experts said mothers had been held accountable for abuse by others, under various theories and often with more evidence, in hundreds of similar cases around the nation. They knew of no such cases involving fathers.
Mary Becker, who teaches family and domestic violence law at DePaul University in Chicago, said such convictions reflected societal attitudes toward motherhood.
“We hold mothers responsible beyond all logic, beyond any possibility that they could stop it,” Professor Becker said. “We live in a culture where we want mothers to do everything, and where whenever something goes wrong it’s the mother’s fault.”
Ms. Pollock’s first appellate lawyer gave up her case as hopeless in 1999 and declined to appeal it to the State Supreme Court. Ms. Pollock will go free only because a student plucked her letter from among the 17,000 that the law school clinic at Northwestern University receives every year, and the clinic persuaded the Supreme Court to hear an appeal filed after the deadline had passed. The court reversed the conviction outright rather than order a new trial.
Ms. Pollock, 32, a slight woman who wears her long hair parted on the side, met a visitor in a conference room at the Lincoln Correctional Center. She seemed to be trying to reconcile the prospect of imminent freedom with her endless and irretrievable heartbreak.
She talked about her three other children. Ms. Pollock’s parental rights were terminated as a result of her conviction, and she has had scant contact with the children. Her youngest, David, who was 2 at the time of the murder, was adopted by another family. It is not clear whether that adoption can or should be undone.
She is no longer in contact with David, whose father is Mr. English. The other two children, Jack, 15, and Preston, 12, live with different sets of grandparents; they have visited Ms. Pollock during school breaks.
“A lot of women in prison lie to their children,” Ms. Pollock said. “They say they’re at school or in the hospital.”
More than 900 women are in the prison here, and 80 percent of them have children.
Ms. Pollock has told her children the truth, but it has not always sunk in. She recalled a phone conversation with Preston around the holidays some years ago.
“Mommy, come home, it’s Christmas,” Preston said.
“The police won’t let me,” she told him.
“Bring the police, too,” he replied. “Grandma made lots of food.”
The killing of Ms. Pollock’s daughter, Jami, took place in October 1995 around 3 a.m. in Kewanee, Ill. Mr. English hit her twice in the head and choked her. When he woke Ms. Pollock about two hours later, she tried resuscitating the child and called 911. At the hospital, witnesses said, she was frantic and shaking uncontrollably.
In her letter to the law school clinic, the Center on Wrongful Convictions, Ms. Pollock described holding her dead child’s body.
“I sat there holding her, rocking her, stroking her hair, crying, and begging God to give my baby back to me,” she wrote.
None of this behavior had moved the prosecution.
“Defendant’s concern for her children was too little, too late,” the government wrote in its appellate papers.
When the police told her that Mr. English had confessed, she was incredulous. At trial, the prosecution produced no witness who had suspected Mr. English of earlier abuse.
“How could I have known he would murder my precious baby girl?” Ms. Pollock wrote. “I did not know, yet I received 36 years in prison for not being a mind reader.”
After she digested the news of Mr. English’s guilt, Ms. Pollock said, she started to question his earlier explanations for her children’s many bruises and scrapes, which prosecutors said should have put her on notice of the danger Mr. English posed. In his confession, Mr. English said Ms. Pollock knew nothing about his abusive behavior.
The prosecution also presented extensive evidence about Ms. Pollock’s mothering. Her children were often dirty, some witnesses said. She let them walk alone in the dark. There was testimony about insufficient hugging.
Jane Raley, a law professor at Northwestern and Ms. Pollock’s current lawyer, said her client’s conviction was one of several similar cases brought by a series of prosecutors in Henry County, in northwest Illinois. Ms. Pollock’s case may force the courts to reconsider some of those convictions.
“It was very mean-spirited,” Ms. Raley said. “The prosecutors were trying to send a message to these women that they should make better choices in their boyfriends.”
Ted Hamer, who prosecuted Ms. Pollock, is now a judge. “Even though I would love to comment on it,” Mr. Hamer said of the still-pending case, “I can’t.”
The current state’s attorney in Henry County, Terry Patton, did not return a call seeking comment.
Mr. Hamer did not seek the death penalty, though he could have. Judge Jay M. Hanson rejected his request for a life sentence, which was mandated by the sentencing law. He held the law unconstitutional.
“Tabitha Pollock,” Judge Hanson said, “had no intention to kill. The killer, Mr. English, was found to have had exactly that intention. Does it make any sense at all that they should receive exactly the same sentence?”
Illinois and many other states accept the notion that parents may be held legally accountable for the deaths of their children when they have witnessed or otherwise know of grave threats to their safety. Ms. Pollock’s case differed in that she was held responsible on what lawyers call a negligence theory — that she should have known of the potential danger, even if she did not. A negligence standard is seldom used in the criminal law.
When an appeals court affirmed Ms. Pollock’s conviction, her lawyer, Tracy McGonigle, then of the state’s appellate defender office, essentially resigned.
“I have determined that there are no issues with sufficient legal merit to justify the continued representation of you,” Ms. McGonigle wrote. “Thus your file will be closed.”
Last month’s ruling in Ms. Pollock’s favor was unanimous, though two of the judges would have allowed a retrial under the proper legal standard, which requires proof that she actually knew of life-threatening abuse.
The government has asked the court to reconsider and to adopt the dissenting judges’ position. That has held up Ms. Pollock’s release. Colleen M. Griffin, an assistant attorney general, said the government was eager to retry Ms. Pollock under the narrower standard.
Ms. Pollock said the government should rest easy, because it has already won.
“The state has taken everything from me,” she said. “I don’t have a house. I don’t have a car. I don’t have my children.”