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Did Homophobia Convict a Wisconsin Woman of Murder?

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In light of the progress that's been made by the LGBT movement, it's hard to imagine that not too long ago an innocent woman could be convicted of murder because she was a lesbian. And, it's harder still to believe that it could happen in a progressive city like Madison, Wis.

But that's exactly what writers Doug and Sheila Berry reveal in their recently updated book about the Penny Brummer case, Who Killed Sarah? The answer may never be known, the husband and wife authors conclude, because tunnel vision fueled by sexual prejudice led the authorities to convict the wrong person.

The "Sarah" in the book's title was Sarah Gonstead, a University of Wisconsin dropout who was murdered in 1994, shot once in the back of the head and dumped in a wooded area outside of Madison. Sarah was a straight friend of Penny Brummer, 24, an openly gay blue collar worker who frequented Madison bars with her partner, Glenda Johnson -- Sarah's friend since childhood.

When Sarah's body was found, Dane County law enforcement exclusively targeted Penny. As described in the book, the authorities believed that Penny had become pathologically jealous of the Sarah-Glenda friendship and decided to resolve the issue with a gun. Their view of Penny's guilt was buttressed by her admission that she dropped Sarah off the night she was killed, and a witness who alleged that Penny had made damning statements about wanting Sarah dead.

But at Penny's 1994 trial, recounted powerfully by the authors, the prosecution conceded its case was entirely circumstantial and relied mostly on motive -- a love triangle gone bad. Jurors heard evocative testimony about Penny's passion for Glenda, their fight over a waterbed and the steady decline of their tumultuous relationship. Much was made about Glenda's interest in a woman named Iris and, most important, Penny's growing resentment of the time Glenda was spending with Sarah.

If that wasn't enough to prejudice the jury, listen to the homophobic dog whistles from assistant D.A. Judy Schwaemle in her impassioned closing argument to the jury:

"You are not judging a human being," she said about Penny. "[Sarah] was killed by somebody who had an interest in seeing her dead. An interest that none of us can understand or fathom. An interest that none of us understand because we've never experienced anything like that," she declared. "Tell the world what Penny Brummer did and find her guilty."

These emotional appeals were necessary because there wasn't much else that incriminated Penny, according to the authors. The telltale signs of guilt -- physical evidence, a confession, eyewitnesses -- were nonexistent. Penny had a spotless criminal record and an alibi for the time of the crime. The witness who heard her death wish for Sarah? He came forward belatedly and told inconsistent stories.

So why did the jury find Penny guilty? "The most important evidence that led to Penny's conviction was that she is a lesbian," Sheila Berry tells me. "If she had been straight, she wouldn't have been a suspect at all."

Berry found that the jurors in Penny's trial exhibited biases against gays in pre-trial questionnaires and post-trial interviews, perhaps reflecting deeper fears stirred by the AIDS epidemic. For its part, the City of Madison repeatedly harassed the gay bar where Penny and Sarah hung out, eventually yanking its liquor license. "Bar 'Depravity' Was Clear Violation," blared a Capital Times headline cited in the book. When it came to gay rights, Berry says, Madison in the mid-1990s was not the tolerant town it is today.

In case you wondered, the Berrys are not bleeding hearts. For over a decade, Sheila directed prosecutor-supported victim assistance programs, and Doug's father was murdered when Doug was 17. But now they are on a mission to free Penny, contending that the actual killers are on the loose -- and, as their book chillingly concludes, may have murdered at least one other woman.

The best hope at this point, Sheila says, is DNA from the bullet that pierced Sarah's brain. Funds are needed to conduct Y-STR testing, which produced results in another infamous Wisconsin murder case involving Laurencia "Bambi" Bembenek. The testing costs $10-15,000, and the Berrys are offering copies of Who Killed Sarah? to anyone who makes a donation.

Will the justice system ever admit its mistake? Penny herself thinks so. "Something's got to happen," she told investigative reporter Bill Lueders, who first exposed the injustice. "God's not going to let me sit here for something I didn't do. I feel he's guiding somebody out there to help me."

But without the DNA testing or other new evidence, Penny's chances are slim. Now 43, she will not be eligible for parole until she turns 70. Unless something does happen, Penny will die in a Wisconsin prison, damned for a relationship once forbidden in an era of intolerance.