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A Jury May Have Sentenced a Man to Death Because He Is Gay. It’s Time for a Federal Court to Hear His Bias Claim.

Solitary Inmate
Solitary Inmate
Ria Tabacco Mar,
Director, Women’s Rights Project
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August 6, 2018

UPDATE: On Monday, Nov 4, Charles Rhines was executed. The Supreme Court refused, on three separate occasions, to order a court to evaluate new evidence of anti-gay bias in the jury room.

Last week, civil rights groups, including the ACLU and Lambda Legal, urged the Eighth Circuit Court of Appeals to accept the case of Charles Rhines, a gay man in South Dakota whose sexual orientation may have played a role in his death sentence in 1993.

In a related appeal, the Eighth Circuit denied relief on many of Mr. Rhines’s claims the day after the friend-of-the-court filing. But the federal appeals court didn’t address whether Mr. Rhines will be allowed to present evidence of anti-gay bias, as the groups had asked in their friend-of-the-court brief. The Eighth Circuit can still take the case, and it should. Here’s why.

As I noted in June, when the Supreme Court declined to review Mr. Rhines’s death sentence:

Some of the jurors who imposed the death penalty on Charles Rhines, who was convicted of murder, have said they thought the alternative — a life sentence served in a men’s prison — was something he would enjoy as a gay man.

During deliberations, the jury had often discussed the fact that Mr. Rhines was gay and there was “a lot of disgust” about it, one juror recalled in an interview, according to the court petition. Another said that jurors knew he was gay and “thought that he shouldn’t be able to spend his life with men in prison.” A third recounted hearing that if the jury did not sentence Mr. Rhines to death, “if he’s gay, we’d be sending him where he wants to go.”

That’s highly alarming. Yet Mr. Rhines has never had the chance to present this evidence of juror bias to a federal judge because he didn’t know about it until two decades later.

In 2016, jurors from his trial came forward to explain the role Mr. Rhines’s sexual orientation played in the decision to sentence him to death. Once Mr. Rhines learned of the anti-gay statements made during jury deliberations, he asked a federal trial judge to allow him to update his petition to add this new information. At every turn, Mr. Rhines’s pleas have been rejected. As a result, no federal judge has even considered the jurors’ statements to determine whether anti-gay bias was a motivation for the jury to sentence Mr. Rhines to death.

Fortunately, it isn’t too late for the Eighth Circuit to change that. As the civil rights groups explained in their friend-of-the-court brief, our judicial system has safeguards to prevent bias based on sexual orientation — but those safeguards are not failsafe. When they do fail, federal courts have a duty to step in to ensure that “our law punishes people for what they do, not who they are.”

That is particularly true in cases like Mr. Rhines’s, where bias against him because of his sexual orientation may have made the difference between life and death.

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