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Defendants did do somewhat better in some states. In Missouri, in the decade 1915—1924, the supreme court decided 745 criminal cases. Of these, 420 were affirmed, 279 reversed and remanded, and 46 reversed outright. (The affirmance rate was 56.4 percent.) It should be noted, though, that another 342 appeals by defendants during this decade were simply dismissed by the Missouri court because the defendant had “failed to take the steps necessary to perfect his appeal.117

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On rehearing, the court stuck to its decision, though it did backtrack a bit. The problem (the court now said) was that the indictment did not say how Flora was drowned—did he push her into the water, or hold her head under, or what? There “should be an averment of some overt act of the accused which brought about the drowning of his wife, if such act is known.”120

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In 1892 a convicted defendant (male) tried out an argument that was novel for its day. His jury was invalid, he claimed, because it was “exclusively composed of male persons.” The state high court declared flatly that no man had the right to raise this point, to begin with, and the custom in Wyoming was against using women on juries anyway.1

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The Oregon statute also provided, however, that in criminal cases “in which a minor under the age of eighteen years is involved,” as defendant or complaining witness, “at least one-half the jury shall be women.”

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The Supreme Court had earlier ordered federal courts to avoid systematically excluding women in Ballard v. United States.11 In Duren v. Missouri the issue was a Missouri statute that made it extremely easy for women to avoid jury duty. As a result, only 15 percent of the panels were composed of women. This, said the Court, violated the principle of a fair cross section.12

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As of July 1992, there were 315 men and 5 women on death row in Florida. Nationally, there were 40 women condemned to die. One woman, Velma Barfield, has been executed since 1976 (she died in North Carolina in 1984), as against 175 men.15

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The Indiana law defined a prostitute as a female who “commits adultery or fornication for hire.” Interestingly, a “female” was also declared a prostitute if she lived in a “house ... of ill-fame” or “associated” with women of “bad character for chastity, either in public or at a house which men of bad character frequent or visit.”

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Curiously enough, prostitution is not legal in Las Vegas and its county; under the statute, a county license board cannot grant any license “for the purpose of operating a house of ill fame or repute” in any county “whose population is 400,000 or more.”32 There is only one such county in the state—Clark County, in which Las Vegas is located. Is Las Vegas worried that men will wander too far from the slot machines?

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According to a victimization survey, in 1983, there was one rape for every six hundred women in the United States; this is nearly twice the rate of rapes reported to police. 58

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Generally speaking, evidence of the victim’s “sexual conduct,” and “reputation evidence” about that conduct, was not to be admitted. But the judge, if convinced that evidence of the victim’s “past sexual conduct” with the accused or of “specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease” was “material to a fact at issue in the case,” and that “its inflammatory or prejudicial nature does not outweigh its probative value,” had the power to make an exception.62

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Today, says Susan Estrich, “more women do feel free to say yes,” but that “provides more reason—not less—to credit the word of those who say no. The issue is not chastity or unchastity, but freedom and respect.”68

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In thirty-eight cases the identity of the killer was unknown.

Copyright © 1993 by Lawrence M. Friedman. Published by BasicBooks,A Member of the Perseus Books Group

All rights reserved. No part of this book may be reproduced in any manner whatsoever without written permission except in the