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This Note discusses the differing beliefs as to the equal treatment of male and female murder defendants, wtih a particular focus on the trials of Maria Barbella, Laura Fair, and Florence Maybrick.

==Women as Criminal Defendants==

Carolyn Ramsey in ''Intimate Homicide: Gender and Crime Control'', 1880-1920, 77 U. COLO. L. REV. 101 (2006) uses contemporary and archival materials to show that the facts of many cases do not confirm the usual analysis that violence toward and by women was unfairly treated in the criminal justice system. [Hereafter Ramsey, ''Intimate Homicide'']. Ramsey's research indicates that juries would acquit or reduce women's sentences for murdering their loved ones after considering whether they had experienced emotional or physical abuse. Men who were similarly charged with killing a lover or spouse were more likely to receive a guilty verdict, along with severe prison terms - or even execution. Id. at 141. She disputes Robert M. Ireland, ''Frenzied and Fallen Females: Women and Sexual Dishonor in the Nineteenth-Century United States'', 3 J. WOMEN'S HIST. 95 (1991), who gives the standard account that the male-dominated legal system favored men. Ireland cites cases from a number of states, arguing that woman received harsher punishments more often than their male counterparts when alleged to have killed a lover or spouse. While debate exists about who was favored, it seems clear that criminal law treated men and women defendants unevenly.


“Justice should not recognize sex” was the headline of Foltz’s article on equal treatment for women in the criminal justice system. 48 ALB. L.J. 309 (1896). For a modern description of the power and prevalence of the idea that the law should be neutral and should never favor one group over another, see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993). The chapter on The Old Constitutionalism and the New Realism quotes Clara Foltz on avoiding all “class legislation” at page 101 and 102. ''See'' H. TEICHMULLER, THE PROVINCE OF GOVERNMENT, 29 AM. L. REV. 21 (1895). For contemporary approval of Foltz’s formulation, see ''Should Women Be Executed?'', 18 CRIM. L. MAG. & REP. 725 (1896) (a comment on Foltz’s article).


===The Death Penalty===

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Many of the suffrage leaders were, like Foltz, against the death penalty for both sexes.  Susan Anthony took this position, but nevertheless would accord special treatment to Barbella. “My opinion is ever and always against murder, whether by the individual or the State, but especially am I opposed to the State’s murdering a young woman who cannot understand our language and for a crime that is condoned in a man.  I hope that that the governor will commute the poor girl’s sentence and that the law for judicial murder will be annulled by the next legislature.” Lynn Sherr, FAILURE IS IMPOSSIBLE: SUSAN B. ANTHONY IN HER OWN WORDS 218-20 (1995).


The idea that women jurors would automatically acquit members of their own sex, or that women should not be subject to laws they had no voice in making, or to the death penalty, was much discussed. See 5 CASE AND COMMENT 111 (1899) (remarking that suffrage support for “a proposed law to exempt female murderers from capital punishment” was “deliciously absurd” and quotes the New York Journal as saying that the women’s position was “indefensible in principle and extremely vicious in policy”). For an example of the suffragist argument that the “unwritten law” should excuse women who murdered men who dishonored them, see Editorial, 12 WOMAN’S TRIB., Nov. 28, 1896, at 1 (which argued that men should give Barbella the same consideration awarded “those of their own sex who murder under the provocation of... faithlessness.”). 


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===Maria Barbella===

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On Maria Barbella, see Idanna Pucci, THE TRIALS OF MARIA BARBELLA: THE TRUE STORY OF A 19TH CENTURY CRIME OF PASSION (1997) written by a descendent of the Countess De Brazza, and in translation is a more serious book than the title and sometimes the prose would indicate. Unfortunately, it does not have notes or indices, but it quotes from newspapers and transcripts and where I was able to check, I found them reliable.  


Facts of the case and trial are related in ''People v. Barberi'' (sic), 149 N.Y. 256, 43 N.E. 635 (1896). The opinion is also printed in 31 CRIM. L. MAG. 462. The case is discussed in Babcock, ''Inventing the Public Defender'', at 169-77. See also Ramsey, ''Intimate Homicide'', at 130, in which Barbella’s acquittal is given as an example of leniency toward women defendants, partly because of the atmosphere the protest of the first trial created. 


As noted in the text, Foltz’s discussion of Barberi objected to special treatment accorded women defendants. She was also bothered by the mistakes about the facts made by the suffragists. See e.g., Henry Blackwell, ''The Case of Maria Barberi'', WOMAN’S J., Aug. 10, 1895 (claiming that Barberi was only fifteen, and “does not have mental maturity to commit a crime”).


On the incompetence of the lawyers in Barbella, see Pucci, at 29. Indeed they failed to even straighten out the spelling of her name so that she went down in legal history as “Marie Barberi.” On Prosecutor McIntyre’s reputation, see Clara Foltz quoted on the expertise of the prosecutor in The Sunday World’s, ''Woman Jury in the Fleming Case...Some Interesting Opinions'', SUNDAY WORLD, June 28, 1896, at 23. On the unfairness of the first trial, see  Pucci, at 48-84 (first trial account) & 181 (evidence favorable to accused suppressed); Barberi, 149 N.Y. at 276 (reporting that the prosecutor asked defendant five times why she cut his throat and twice why she killed him).


The Countess who rescued Barbella had started a lace-making association among the peasant women on the estate of her Italian husband. Brazza lace had became so famous it was chosen for exhibition in the Woman’s Building at the World’s Fair. In fact, Clara Foltz may well have been in the audience when the Countess spoke about the collective at the Congress of Women. Countess Cora Slocomb Di Brazza, THE ITALIAN WOMAN IN THE COUNTRY: THE CONGRESS OF WOMEN (Mary Eagle ed., 1894); Pucci, at 86-92. JEANNE MADELINE WEIMANN, THE FAIR WOMEN: THE STORY OF THE WOMAN'S BUILDING AT THE WORLD'S COLUMBIAN EXPOSITION OF 1893 (1981) has a picture of the beautiful countess at 408 and notes that she was asked to speak about the political condition of Italian women but insisted that she was interested only in their “higher education and refinement and usefulness.” 


On Barbella’s appearance, Cesare Lombroso had it that habitual criminals have a higher percentage of physical anomalies than the rest of the population. He made a special study of the female criminal, calling for a recognition and special treatment of the “type.” LOMBROSO, THE FEMALE OFFENDER (1915) collects his essays on the characteristics of women offenders. See also, LAWRENCE M FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 141 (1994). 


Though there was considerable sympathy for Barbella, not every one was on her side. See Maria Barberi [sic], ''Not an Innocent'', BROOKLYN DAILY EAGLE, Aug. 3, 1895, at 6 (explaining the District Attorney’s case);'' Conference of Colored Men'', N.Y. TIMES, July 30, 1895 (reporting that at a meeting of black Republicans, one speaker denounced the support of the “red handed murderess” Barbella by people who said nothing when black women were lynched in the South).

===Laura Fair===

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Mark Twain’s first novel (with Charles Dudley Warner), THE GILDED AGE (1873), involved a disguised portrait of Laura Fair and her second trial in which she was acquitted. Bryant Morey French, ''Mark Twain, Laura D. Fair and the New York Criminal Courts'', 16 AM. Q. 545 (1964). Twain moved the locale of the Fair case from San Francisco to New York and used it to observe the problems with corrupt juries and the temporary insanity plea. Generally, the case has attracted much attention over the years. The latest is in CHARLES F. ADAMS, MURDER BY THE BAY: HISTORIC HOMICIDE IN AND ABOUT THE CITY OF SAN FRANCISCO (2004) which has a chapter, The Misused Mistress, and many illustrations. KENNETH LAMOTT, WHO KILLED MR. CRITTENDEN? (1963) has accounts of the suffragist protests and quotes many news articles. ''See also'', MILLIE ROBBINS, TALES OF LOVE AND HATE IN OLD SAN FRANCISCO 28-30 (1971); Robert O’Brien, ''“Wolves in the Fold:” The Case of Laura D. Fair'', ''in'' JOSEPH HENRY JACKSON, SAN FRANCISCO MURDERS (1947). 


The case stirred much contemporary interest as well. Theodore Henry Hittell  devotes two pages to it, 4 HISTORY OF CALIFORNIA 515-16 (1897), and ascribes her acquittal to the general “higher” law that a man takes his risks in treating a woman as he did Laura Fair, and in being involved with her also.  THOMAS S. DUKE, CELEBRATED CRIMINAL CASES OF AMERICA 61-63 (1910). OSCAR TULLY SHUCK, BENCH AND BAR OF CALIFORNIA 55-56 (1888) (praising the closing argument of prosecutor especially for all the literary figures he invoked).


===Florence Maybrick===

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The main contemporary sources on the life and case of Florence Maybrick, in addition to periodicals cited in the endnotes, include: A. WILLIAM MACDOUGALL, THE MAYBRICK CASE (1891); FLORENCE ELIZABETH MAYBRICK, MRS. MAYBRICK’S OWN STORY: MY FIFTEEN LOST YEARS (1905) (reprints the petitions and the lawyers’ briefs in full); J.H. LEVY, THE NECESSITY OF CRIMINAL APPEAL AND THE MAYBRICK CASE (1899) (reprints large parts of transcript; compares the failure of due process to the Dreyfus case in France). For samples of sophisticated contemporary writing for and against the verdict, see 7 PUBLIC OPINION 390-92 (1889) (quoting editorials from the Philadelphia Ledger, the Springfield Republican, the New York Tribune, and the New York Herald); SATURDAY REV., Aug. 24, 1889, at 203-04; Helen Densmore, The English Dreyfus Case, 22 ARENA 598-613 (1899). 


Modern sources on life and case: BERNARD RYAN & SIR MICHAEL HAVERS, THE POISONED LIFE OF MRS. MAYBRICK (1977); MARY S. HARTMAN, VICTORIAN MURDERESSES (1977).