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to Section One | to Arts & Entertainment
posted Friday, November 8, 2019 - Volume 47 Issue 45
Gay man asked US Supreme Court to stay execution and order district court to hear new evidence of jury's antigay bias
Section One
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Gay man asked US Supreme Court to stay execution and order district court to hear new evidence of jury's antigay bias

WASHINGTON, DC (November 1, 2019) - Attorneys for Charles Rhines filed a petition for a writ of habeas corpus with the US Supreme Court today and asked the court to direct a federal district court to hear new evidence of some jurors' antigay bias. New evidence shows that some of the jurors who sentenced Mr. Rhines to death knew that he was gay and thought he would enjoy life in prison with other men if they did not vote for death. No court has ever considered the new evidence on the merits or judged the constitutionality of Mr. Rhines' death sentence in light of it. He is scheduled to be executed during a weeklong window beginning Sunday, November 3, 2019.

Mr. Rhines' petition for writ of habeas corpus can be viewed at https://tinyurl.com/yxmpkmxs.

'Antigay prejudice should never have any role in sentencing a man to death. It is shocking that no court has ever considered the new evidence of some jurors' antigay statements. The US Supreme Court must intervene to make sure a court hears this evidence before Mr. Rhines is executed,' said Shawn Nolan, Chief, Capital Habeas Unit, Community Federal Defender Office for the Eastern District of Pennsylvania, and Mr. Rhines' attorney.

During jury deliberations, the jury sent a note to the judge that indicated that Mr. Rhines' status as a gay man had become a focal point for deliberations. The note asked whether, if sentenced to life without parole, Mr. Rhines would 'be allowed to mix with the general inmate population,' be able to 'brag about his crime to other inmates, especially new and/or young men,' [or] enjoy 'conjugal visits' and asked other questions about Mr. Rhines' access to other men while in prison. (Petition at p. 3.)

The new evidence comes in the form of three statements from jurors who served at Mr. Rhines' capital trial and sentencing. 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.' (Petition at p. 3.)

The new evidence confirms what the jury's note strongly indicated at the time of Mr. Rhines' sentencing: antigay bias played a role in some jurors' decisions to impose the death penalty on Mr. Rhines. No court has ever held an evidentiary hearing or determined whether he suffered a violation of his right to an impartial jury.

In 2017, in Peña-Rodriguez v. Colorado, the US Supreme Court held that states must consider evidence that jurors relied on racial stereotypes or animus to convict a defendant in a noncapital case. Attorneys for Mr. Rhines argue that since the principles underlying Peña-Rodriguez apply to antigay prejudice, the court should allow Mr. Rhines the opportunity to present evidence that antigay bias was a factor in some jurors' decisions to sentence him to death. The need for review is especially compelling because the antigay bias in Mr. Rhines' case may have made the difference between life and death.

A broad array of prominent organizations have urged courts to intervene and/or spoken out about the unfairness in this case, including the American Bar Association, the NAACP Legal Defense and Educational Fund, Inc., the American Civil Liberties Union, the Lambda Legal Defense and Education Fund, Inc., GLBTQ Legal Advocates & Defenders, the Human Rights Campaign, the National LGBT Bar Association, and the National Center for Lesbian Rights.

The US Supreme Court has the power to entertain an original habeas petition and transfer it to a federal district court. The Court exercised this power in Troy Davis' case in 2009.

Also today, attorneys for Mr. Rhines petitioned the US Supreme Court to obtain the assistance of psychiatric and neuropsychological experts in support of his petition for reprieve and clemency. Congress created a right for indigent death-sentenced state prisoners to obtain legal and expert services in support of these requests. Mr. Rhines has sought the assistance of experts to attest to his cognitive and psychiatric impairments. Absent a court order, state corrections officials have for years refused to permit his experts to evaluate him in person. Mr. Rhines' petition for certiorari can be viewed at https://tinyurl.com/y669t4m9.

Rhines case overview
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 made other statements that showed a disgust for his sexual orientation. Antigay bias should have no role in a capital jury's life or death decision-making. (Petition at p. 3.)

Before trial, Mr. Rhines' attorneys asked prospective jurors if they had any antigay 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. The new evidence indicates otherwise. (Petition at p. 4.)

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 antigay 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.'

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

New evidence confirms that Mr. Rhines' sexual orientation was a focal point for jury deliberations. Three jurors have made statements indicating that antigay prejudices played a significant role in the jury's decision to impose the death penalty instead of life without the possibility of parole. 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.' (Petition at pp. 3, 8.)

Mr. Rhines is seeking to prove that he was denied his 6th Amendment right to an impartial capital sentencing jury. The court must not allow antigay bias to infect jury decision-making. In 2017, the court held that states must consider evidence that jurors relied on racial stereotypes or prejudice in convicting a defendant (Pena-Rodriguez v. Colorado). The court explained that this ruling helped 'ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.'

Pena-Rodriguez, where the court intervened to ensure the right to an impartial jury, was a noncapital case. The need for the court's review is even more urgent in this case because Mr. Rhines is facing the death penalty. As Mr. Rhines' petition states, 'Antigay bias, if left unaddressed in this case, risks systemic harm to the justice system and, in particular, capital jury sentencing.' (Petition at p. 19.)

In Pena-Rodriguez, two jurors came forward to state that a third juror, during deliberations on guilt in a noncapital case, had expressed anti-Hispanic bias toward the defendant and the defendant's alibi witness. The court held that the 6th Amendment required the trial court to consider the evidence that the juror relied on racial stereotypes or animus and the state rule against inquiring into jury deliberations had to give way. (Petition at p. 19.)

Racial bias in the determination of guilt was intolerable in Pena-Rodriguez, and so too was the antigay bias that infected Mr. Rhines' sentencing decision. Prejudice based on sexual orientation is a long-standing and deeply rooted facet of American life. (Petition at p. 14.)

The court has acknowledged this reality. For example, the court recently observed that '[u]ntil the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law' (Obergefell v. Hodges). The lower courts have recognized the harmful effects of antigay stereotypes, including that gays and lesbians are 'promiscuous, ...'disease vectors' or child molesters' (SmithKline Beecham Corp. v. Abbott Labs).

Juries have discretion, but they cannot be permitted to abuse their discretion by allowing racial and antigay prejudices to affect their votes. As the court has recognized, death is different than all other punishments and requires a greater degree of scrutiny. (Petition at pp. 27-28.) The stereotypes and disapproval of Mr. Rhines' sexual orientation cannot stand as an influence on the jurors' decision to sentence him to death.

Courtesy of Dupont Circle Communications

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