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to Section One | to Arts & Entertainment
posted Friday, September 14, 2018 - Volume 46 Issue 37
Eighth Circuit Court of Appeals denies Certificate of Appealability to South Dakota death row prisoner
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Eighth Circuit Court of Appeals denies Certificate of Appealability to South Dakota death row prisoner

On Friday, September 7, a divided three-judge panel of the Eighth Circuit Court of Appeals denied a Certificate of Appealability to South Dakota death row prisoner Charles Rhines, who asked the court to review new evidence that some of the jurors who sentenced him to death were motivated by anti-gay bias and deprived him of a fair trial and due process under the Sixth and Fourteenth Amendments. One of the judges voted to grant Mr. Rhines's application.

Below is a statement from Shawn Nolan, one of Charles Rhines's attorneys, followed by background about the case.



'There is compelling new evidence that some of the jurors who sentenced Charles Rhines to death in South Dakota were motivated by anti-gay bias. Statements from three jurors show that the jury sentenced Mr. Rhines to death because some thought that, as a gay man, he would enjoy life in prison with other men.

'The U.S. Supreme Court's decision in 2017, Peña-Rodriguez v. Colorado, applies to Mr. Rhines's case and requires that a court review his evidence of anti-gay bias before his execution can proceed. Anti-gay stereotypes and animus should have no role in our criminal justice system and certainly should never be a reason to impose a death sentence. We are gratified that one of the judges on the panel, Judge Kelly, voted to review this important issue.

'We express our appreciation to the six civil rights organizations - American Civil Liberties Union; the American Civil Liberties Union of South Dakota; Lambda Legal; GLBTQ Legal Advocates & Defenders; National Center for Lesbian Rights; and National LGBT Bar Association - who filed a friend-of-the-court brief with the Eighth Circuit. The amici brief provided critical information about the long and painful history of discrimination against lesbian, gay, and bisexual people in the United States, which created the context in which Mr. Rhines received a death sentence and persists in the current day.'

- Shawn Nolan, Attorney for Charles Rhines and Chief of the Capital Habeas Unit, Federal Community Defender for the Eastern District of Pennsylvani - September 7, 2018

Case Overview Charles Rhines is a gay man on death row in South Dakota. On September 7, 2018, the U.S. Court of Appeals for the Eighth Circuit declined to hear his claim that Peña-Rodriguez v. Colorado applies to his evidence that at least one juror relied on anti-gay stereotypes and animus to sentence him to death and violated his rights to a fair trial and due process under the Sixth and Fourteenth Amendments.

Jurors who voted for death expressed a desire to prevent Mr. Rhines from serving a life sentence 'with men in prison' or enjoying 'conjugal visits' and recalled jurors expressing 'disgust' about Mr. Rhines's sexual orientation. Anti-gay bias should have no role in a capital jury's life or death decision-making.

Before trial, Mr. Rhines's attorneys asked prospective jurors if they had any anti-gay bias that would prevent them from giving Mr. Rhines a fair trial. The jurors selected to hear his case said they could be fair and free of prejudice. This turned out not to be true.

At trial, the jury heard through witnesses presented by the state that Mr. Rhines was gay and had relationships with other men. They were asked to choose between life in prison without parole and the death penalty for a murder committed when an employee surprised Mr. Rhines in the course of a commercial burglary. During their deliberations, the jury sent a note to the judge showing that deliberations had become infected with anti-gay stereotypes and prejudices. Among other things, the jurors asked whether Mr. Rhines would be allowed to:

o 'mix with the general inmate population;'

o 'create a group of followers or admirers;'

o 'brag about his crime to other inmates, especially new and/or young men jailed for lesser crimes;'

o be 'jailed alone or ... have a cellmate;' or

o 'marry or have conjugal visits.' (Application at p. 6.)

As the amici brief of six civil rights organizations stated, '[t]he jury note suggests that at least some members of the jury accepted the notion that life in prison without parole would be fun for a gay person - so much so that they felt it was necessary to impose the death penalty instead. In other words, significant evidence suggests that the jury may have sentenced Mr. Rhines to death based not on the facts of his case, but because he is gay.' (Amici brief at p. 2.)

The judge did not address these questions and failed to head off the anti-gay bias that the questions revealed. The same day, about eight hours later, the jury voted to sentence Mr. Rhines to death. (Application at pp. 5-6.)

New evidence confirms that some of the jurors who voted to impose the death penalty on Mr. Rhines did so because they thought the alternative - a life sentence in a men's prison - was something he would enjoy as a gay man. Three jurors have made statements indicating that anti-gay prejudices played a significant role in the jury's decision-making. (Amici brief at p. 1.)

One juror stated that the jury 'knew that [Mr. Rhines] was a homosexual and thought that he shouldn't be able to spend his life with men in prison.' Another juror recalled a juror commenting that 'if he's gay we'd be sending him where he wants to go if we voted for [life without parole].' A third juror confirmed that '[t]here was lots of discussion of homosexuality. There was a lot of disgust. This is a farming community . . . . There were lots of folks who were like, 'Ew, I can't believe that.' (Application at p. 8.)

As Chief Justice Roberts has explained, the core premise of our criminal justice system is that '[o]ur law punishes people for what they do, not who they are.' (Buck v. Davis) Bias based on a characteristic that cannot be changed, such as race or sexual orientation, goes against this foundational principle. Allowing bias to play any role in sentencing is especially alarming when the bias may have made the difference between life and death.

After a verdict and sentencing, the courts do not usually inquire into jury deliberations. However, in 2017, the U.S. Supreme Court recognized an exception to this rule and directed states to consider evidence that jurors relied on racial stereotypes or prejudice in convicting a defendant. (Peña-Rodriguez v. Colorado)

In Peña-Rodriguez, after the jury voted to convict a person in a non-death penalty case, two jurors said that another juror believed that the defendant was guilty of unlawful sexual contact and harassment 'because he's Mexican and Mexican men take whatever they want.' (Amici brief at pp. 2-3.) The Court found that evidence of anti-Mexican bias 'cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict' and set the verdict aside. (Amici brief at p. 3, quoting Peña-Rodriguez.)

The Court has also recognized that a person's sexual orientation is 'immutable' or unchangeable, in the same way that a person's race is unchangeable. (Amici brief at p. 3.) Because the principles underlying Peña-Rodriguez apply to anti-gay bias, a court should consider Mr. Rhines's new evidence before proceeding to his execution.

The jury's decision to allow Mr. Rhines to live or die occurred in the context of the history of discrimination against lesbian, gay, and bisexual people in the United States. (Amici brief at pp. 7-9.) As the amici brief states, 'Well into the twentieth century, gay people were 'prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.' (Amici brief at p. 5 quoting Obergefell v. Hodges.) (See also Application at pp. 10-11.)

While many of the laws that allowed or required discrimination against lesbian, gay, and bisexual people have been repealed or found unconstitutional, recent years have seen renewed efforts to ban same-sex couples from adopting children, allow discrimination against them by private actors, and otherwise maintain their inferior status under the law. (Amici brief at p. 5.)

Lesbian, gay, and bisexual people continue to experience negative consequences because of their sexual orientation. Despite significant progress, eliminating bias based on sexual orientation on the part of the government and private individuals continues to be an uphill battle. For example, the current Attorney General of the United States has argued that employers should be able to fire lesbian, gay, and bisexual people because of their sexuality under federal law and that businesses open to the public should be able to discriminate against same-sex couples. (Amici brief at pp. 11-12.)

Today, the federal government and 28 states do not have laws that expressly prohibit discrimination based on sexual orientation, leaving lesbian, gay, and bisexual people at risk for discrimination in jobs, housing, education, credit, healthcare, jury service, retail stores, and other aspects of public life. (Amici brief at p. 12.) In 2017, 46 percent of LGBTQ employees reported remaining closeted at work. (Amici brief at p. 13.) 2016 was the deadliest year on record for hate crimes against this community with more than 1,000 incidents of hate violence reported. (Amici brief at p. 15.)

Historic and present day anti-gay bias infects the justice system, just as it does other aspects of life. When anti-gay bias poisons a criminal proceeding, it violates the defendant's rights to a fair trial and due process and undermines the integrity of our justice system as a whole. In a 2008 study, a majority of police chiefs said they believed that being gay constitutes 'moral turpitude' and a 'perversion.' This continuing bias helps explain why gay men are still targeted for lewdness offenses and why young lesbian, gay, and bisexual people are more likely to get stopped by police or arrested than their heterosexual peers. (Amici brief at pp. 14-15.)

Research shows that discriminatory attitudes against lesbian, gay, and bisexual people negatively affect their experiences in the civil and criminal courts as jurors, litigants, court employees, and other participants. For example, in a 2001 study of the California court system, more than a third of lesbian, gay, and bisexual court users 'felt threatened in the court setting because of their sexual orientation.' (Amici brief at p. 17.) (See also Application at p. 12.) Of jurors who participated in mock trials between 2002 and 2008, a jury research firm found that 45 percent believed that being gay 'is not an acceptable lifestyle.' (Amici brief at p. 19.)

Punishing people based on who they are is fundamentally 'inconsistent with our commitment to the equal dignity of all persons.' (Amici brief at p. 4, quoting Peña-Rodriguez.) Mr. Rhines should be allowed to show whether anti-gay prejudice factored into the jury's decision to sentence him to death.

Courtesy of Dupont Circle Communications

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