Prosecutors said her sexual orientation was motive to kill. Now, she’s asking Illinois’ governor for clemency.

An illustration of Bernina Mata by a member of her ‘Freedom Team,’ which is supporting her bid for executive clemency. Illustration by Shirien Damra via InJustice Watch

By Chloe Hilles 

An illustration of Bernina Mata by a member of her ‘Freedom Team,’ which is supporting her bid for executive clemency. Illustration by Shirien Damra via InJustice Watch

Prosecutors in Bernina Mata’s 1999 murder trial made an unusual claim about her motive to kill: the fact that she identified as a lesbian.

Troy Owens, then an assistant state’s attorney in Boone County, Illinois, prosecuted the case. He alleged that Mata was “a hardcore lesbian” who decided to kill John Draheim after he made a pass at her at a local bar in Belvidere, outside Rockford.

“A normal heterosexual woman would not be so offended by such conduct as to murder,” Owens argued at Mata’s trial.

Mata’s attorneys said she acted in self-defense after Draheim came back to her apartment and tried to rape her. The attorneys argued that her sexual orientation had nothing to do with her actions.

Mata’s roommate at the time testified for the prosecution that Mata had told him she planned to murder Draheim because she was angry that he touched her at the bar. (He pleaded guilty to helping dispose of the body and was sentenced to four years in prison.) The jury sided with the prosecution and sentenced Mata to death. In 2003, then-Gov. George Ryan commuted her sentence to life in prison, along with the sentences of everyone else on death row in Illinois.

In 2006, an appeals court found there was sufficient evidence to prove that Mata had planned the murder in advance.

Now, Mata’s lawyers are asking Gov. J.B. Pritzker to grant her release from prison to fix what they call a “horrendous wrong.” They filed a petition for executive clemency Tuesday. The petition will now go to the Illinois Prisoner Review Board, which will hold a hearing in April and then make a recommendation to Pritzker.

“Essentially, our criminal legal system is replicating the very forces and dynamics and oppression that some of us say we’re against,” said Joey Mogul, a partner at the People’s Law Office who has represented Mata since 2002. “I think Bernina Mata’s story exemplifies that — how racism and anti-lesbian oppression was used to incarcerate and try to kill her.”

Owens, who is now an attorney in private practice, said in an interview with Injustice Watch the arguments he made at trial about her lesbian identity were “not biased.”

A dozen local organizations are backing Mata’s bid for clemency, and advocates are working to support her through the process and raise awareness about her case.

“These last 23 years have been very hard for me,” Mata wrote in a letter to her supporters in October. “I am not the same person I was all those years ago. I am 51 years old now and would really love a second chance at life.”

But Mogul and the rest of Mata’s “freedom team” face long odds in their fight for her release. Since 2014, Illinois governors have granted less than 10% of clemency petitions that they’ve reviewed, according to an analysis of the data from the Prisoner Review Board through October 2021. In just the past two years, Pritzker has granted over 90 commutations — which is over three times more than have been granted in the previous decade — but still a small percentage of the requests that he has received.

Women with history of abuse are more vulnerable to incarceration

Mata is one of 44 women serving life sentences in Illinois as of September. Like many other incarcerated women, Mata is a survivor of abuse. She was sexually abused as a child by her father and stepfather, Mogul said.

Mata’s attorneys say Draheim was trying to rape Mata at the time of the murder. The clemency petition cites his history of domestic violence, including a 1995 conviction for domestic battery and an order of protection filed against him by his ex-wife in 1997.

Before Mata went on trial for Draheim’s murder, a forensic psychologist examined her and determined that she was suffering from rape trauma syndrome, post-traumatic stress disorder, and had flashbacks of her abusive father at the time of the crime, according to Mogul.

Women and members of the LGBTQ community who have experienced abuse are more vulnerable than men to arrest and incarceration, said attorney Rachel White-Domain, director of the Women & Survivors Project at the Illinois Prison Project and part of Mata’s legal team. The pattern is known as the “abuse-to-prison pipeline.”

Research shows that most women in prison have experienced abuse or trauma. According a report by the Illinois Criminal Justice Information Authority in 2010 — the most recent on the subject — 99% of incarcerated women in Illinois reported having experienced emotional, physical, and/or sexual abuse at some point in their lives.

A recent report by the Sentencing Project, a nonprofit research organization that promotes criminal justice reform, suggests that women face gender-based stigmas and biases in the courts that can affect their sentencing outcomes. Those biases are compounded for women of color, such as Mata, who is Latinx, Mogul said.

Mata’s attorneys say that happened in her case. The prosecutors, judge, and jury failed to take her history of abuse into account, instead relying on outdated and incorrect stereotypes about her lesbian identity, Mogul said.

“If it wasn’t for these ways of demonizing her based on her race and sexual identity, she never would have been charged with capital murder,” Mogul said. “She would have never been given a death sentence, let alone have a life sentence, and it’s likely she could be out to this day.”

Owens defended his handling of the case and his use of Mata’s sexual orientation as a motive for murder.

“If there was a heterosexual motive to kill, we would have argued that — if it existed,” Owens said. “If there was any other basis to argue that she had to kill, then we would have used that as a basis for motive.”

Clemency has an established history with lawyers and abolitionists as a tool to free criminalized survivors of abuse. In the late 1980s, as self-defense laws changed nationally, clemency campaigns for “battered women” began popping up in various states, White-Domain said. She said the Illinois Clemency Project for Battered Women had dozens of successes in the 1990s.

More recently, “participatory defense campaigns” have been an abolitionist organizing strategy to support survivors, especially people of color and members of the LGBTQ community. Groups like Love & Protect, a Chicago organization that supports criminalized survivors, have successfully helped free survivors, such as Marissa Alexander, Tewkunzi Green, and Bresha Meadows.

Effective defense campaigns demonstrate care for incarcerated people through letter-writing campaigns, prison visits, and financial support, according to members of Love & Protect. They also work to raise public awareness about a case and push for legal remedies, such as getting prosecutors to drop charges, asking courts to review a wrongful conviction, or petitioning a governor to commute a sentence.

“Clemency is an extremely proper vehicle to address exactly the sort of problems that we see in Bernina’s case — mainly not recognizing or understanding trauma and abuse and how they can affect someone’s mindset,” White-Domain said. “I think there’s agreement that we have come a very, very long way since 1998 on issues like that.”

‘A check on the excesses of the judicial system’

Illinois abolished discretionary parole in 1978, which means that people serving life sentences, such as Mata, have only one avenue for release: executive clemency.

The Illinois constitution gives the governor broad powers to grant pardons, which eliminate a person’s criminal record (usually after the state releases them from prison), and commutations, which shorten a person’s sentence.

“It’s supposed to be a check on the excesses of the judicial system,” White-Domain said.

But historically, governors have denied clemency petitions far more often than they’ve granted them.

Since 2004, Illinois governors have granted about 1,150 pardons and 117 commutations out of more than 11,000 clemency petitions heard by the Prisoner Review Board. More than 75% of the commutations over that period were granted by Pritzker from January 2020 through October 2021. (The Prisoner Review Board did not respond to our request for updated data.)

Since he came into office in January 2019, Pritzker has granted more than 200 pardons and nearly 100 commutations, according to the data from the Prisoner Review Board. That’s about one-quarter of the petitions that he has acted upon. Many of those came as the Covid-19 pandemic swept through prisons last year, killing at least 88 incarcerated people. Pritzker also pardoned more than 11,000 people for marijuana possession in December 2019, on the eve of cannabis legalization in the state, the Chicago Tribune reported. But those pardons are not included in the Prisoner Review Board’s data.

The Prisoner Review Board heard about 650 clemency petitions per year, on average, from 2004 to 2019. The board makes a confidential recommendation to the governor, who has no deadline to decide.

Former Gov. Bruce Rauner, a Republican, approved less than 5% of clemency petitions that he reviewed, according to an Injustice Watch analysis of the data. From 2009 to 2015, former Gov. Pat Quinn, a Democrat, approved 25% of clemency petitions that he reviewed, many of which were backlogged from his predecessor, former Gov. Rod Blagojevich. Blagojevich, a Democrat who had his sentence on federal corruption charges commuted last year by former President Donald Trump, granted 65 pardons. That was less than 1% of petitions heard by the Prisoner Review Board during his six years in office, according to the Prisoner Review Board data.

Filing for clemency is typically the last option for incarcerated people after they’ve exhausted all avenues for appeal. Many incarcerated people file clemency petitions without the help of an outside attorney, said Anthony Jones, a paralegal who served almost 30 years in prison. He helped dozens of other prisoners file clemency petitions while he was in Stateville Correctional Center, he said. Those petitions are less likely to be approved but no less worthy of mercy, said Jones, whose petition for clemency was granted by Pritzker last year. He currently works as a community educator at the Illinois Prison Project.

While incarcerated at Logan Correctional Center in Lincoln, Illinois, Mata received her GED certificate, has taken college courses, trained service dogs, and helped care for incarcerated people with disabilities, Mogul said. Her freedom team hopes that her accomplishments in prison, along with the details of her prosecution, will be enough to convince the Prisoner Review Board and Pritzker to give her a chance at freedom.

“We’re really fortunate that we have this tremendous team of people who are supporting Bernina and wrapping their arms around her,” Mogul said, “and showing the (Prisoner Review Board) that she is a valuable human being, like all human beings, that she’s loved, that she’s cared for.”

Correction: A previous version of this story said Mata forfeited her appeal after her death sentence was commuted. She forfeited the parts of her appeal related to her conviction, but went forward on an appeal of her death sentence, which she lost.