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Was a Man Sentenced to Death for Being Gay?

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Six civil rights organizations, including the American Civil Liberties Union, American Civil Liberties Union of South Dakota, Lambda Legal,  GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, and National LGBT Bar Association, filed an amici brief Thursday urging the Eighth Circuit Court of Appeals to hear the appeal of Charles Rhines, a gay man on death row in South Dakota.

According to the filing, new evidence “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.”

“Mr. Rhines’s case represents one of the most extreme forms anti-LGBT bias can take. Evidence suggests that he has been on death row for the past 25 years because he is a gay man. The constitutional right to a fair trial must include the right to establish whether a verdict or sentence was imposed due to jury bias,” said Lambda Legal Fair Courts Project Attorney Ethan Rice. “Lambda Legal is proud to work with the ACLU, the ACLU of South Dakota, GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, and the National LGBT Bar Association to provide important information to the Eighth Circuit on the history of bias against LGBT people and how that bias impacts LGBT rights in the criminal legal system.”

The amicus brief can be viewed here: https://tinyurl.com/y8eslggc.

Mr. Rhines’s Application for Certificate of Appealability can be viewed at https://tinyurl.com/y778msud and its exhibits at https://tinyurl.com/y8bz8jor.

During jury deliberations, the jury sent a note to the judge that indicated that Mr. Rhines’s 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,” enjoy “conjugal visits” and asked other questions about Mr. Rhines’s access to other men while in prison. (Application at p. 6.)

The new evidence comes in the form of three statements from jurors who served at Mr. Rhines’s 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.” (Application at p. 8.) (See also Amici brief at p. 1). The new evidence confirms what the jury’s note strongly indicated at the time of Mr. Rhines’s sentencing: anti-gay bias played a role in some jurors’ decisions to impose the death penalty on Mr. Rhines.

The brief of the amici documents America’s long and painful history of discrimination against lesbian, gay, and bisexual people, which persisted at the time of trial and continues in the present day. The amici wrote to the court: “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)

In 2017, in Peña-Rodriguez v. Colorado, the U.S. Supreme Court held that states must consider evidence that jurors relied on racial stereotypes or animus to convict a defendant in a non-capital case. As Ria Tabacco Mar has previously discussed, “juror deliberations are considered sacrosanct, but last year the Supreme Court carved out an important exception for cases of racial bias in the jury room.”

Attorneys for Mr. Rhines argue that since the principles underlying Peña-Rodriguez apply to anti-gay prejudice, the Eighth Circuit should allow Mr. Rhines the opportunity to present evidence that anti-gay bias was a factor in some jurors’ decisions to sentence him to death. The need for review is especially compelling because the anti-gay bias in Mr. Rhines’s case may have made the difference between life and death.

Charles Rhines Case Overview

Charles Rhines is a gay man on death row in South Dakota. New evidence shows that some of the jurors who sentenced him to death “knew that he was a homosexual and thought he shouldn’t be able to spend his life with men in prison” and thought that “if he’s gay we’d be sending him where he wants to go if we voted for [life in prison].” The jury’s anti-gay bias deprived him of his rights to a fair trial and due process under the Sixth and Fourteenth Amendments.

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 indicating that deliberations had become infected with anti-gay stereotypes and prejudices. (Application at p. 6.)

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.)

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.)

On July 26, 2018, Mr. Rhines filed an Application for Certificate of Appealability with the U.S. Court of Appeals for the Eighth Circuit asserting 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. On August 2, 2018, six civil rights groups with a vital interest in eradicating anti-gay bias from America’s legal system filed an amici brief with the Eighth Circuit urging the court to afford Mr. Rhines the opportunity to establish whether bias based on his sexual orientation was a motivation for some jurors in sentencing him to death.

As the amici document explains, 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.) While many of the laws that allowed or required discrimination against lesbian, gay, and bisexual people were repealed or found unconstitutional after Mr. Rhines’s trial, recent years have seen renewed efforts to ban same-sex couples from adopting children, allow discrimination against them by public and 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 difficult. 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 have no 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. 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 lesbians, gays, 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.) These persistent attitudes open the door to a gay defendant who is convicted of murder to receive the death penalty, instead of a sentence of life without parole, because of his sexual orientation, rather than the nature of the crime.

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.) The court should accept Mr. Rhines’s case to allow him to show whether anti-gay prejudice factored into the jury’s decision to sentence him to death.

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LGBT

Biden Offers Gay Vets Clemency Following Green Light for DOD Lawsuit

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President Joe Biden said he was using his clemency authority to pardon LGBTQ service members who were convicted of violating the military policy against homosexuality. This comes less than a week after a magistrate judge ruled a lawsuit against the Department of Defense over the discharges of gay veterans could move forward.

Biden issued a statement on X Wednesday morning announcing the decision.

“Today, I am righting an historic wrong by using my clemency authority to pardon many former service members who were convicted for simply being themselves,” the statement read. “Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity.”

READ MORE: After Six Decades, Lesbian Veteran’s Military Discharge Finally Upgraded to ‘Honorable’

In this case, clemency only applies to those who were convicted or court-martialed.

While in 1993, the “Don’t Ask, Don’t Tell” policy went into effect, LGBTQ service members could serve while in the closet. Their superiors could not ask if they were gay, but they could not disclose it themselves, either. Those who came out would be discharged, usually with other-than-honorable discharges.

However, sodomy was still criminalized in the U.S. military, meaning that service members could be court-martialed and convicted if they had homosexual sex. Biden’s order affects these service members.

The order will also apply to service members who have since died, according to NBC News.

This follows the ruling on Friday from Magistrate Judge Joseph C. Spero that a lawsuit filed by five LGBTQ veterans against the DOD could proceed. The five veterans were suing to upgrade their discharges to honorable and remove all references to sexual orientation from their discharge paperwork.

Veterans who were given other-than-honorable discharges face a number of hurdles. They are unable to re-enlist, even now that the rule they violated is no longer in effect. They are also blocked from accessing services from the Department of Veterans Affairs.

In February, the DOD said it was working to upgrade LGBTQ veterans’ discharges to honorable. However, it didn’t provide a timeline. Up until that point, veterans had to explicitly petition the government to have their discharge paperwork updated. The update process was described in the suit as “burdensome, opaque, expensive, and for many veterans virtually inaccessible.”

In 2011, the year “Don’t Ask, Don’t Tell” was lifted, the memorandum doing so said that it was unnecessary to automatically update discharge paperwork for vets thrown out by the policy. However, it was only two years later when the Uniform Code of Military Justice was updated to remove its ban on sodomy.

Biden’s statement did not reveal a number of service members who would be affected by his order. According to the lawsuit, over 35,000 members of the U.S. military had been discharged under the ban on homosexuality between 1980 and 2011.

Biden’s clemency order falls on the 9th anniversary of the landmark 2015 Supreme Court decision in Obergefell v. Hodges legalizing same-sex marriage in the United States.

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Judge Says Gay Vets Can Sue DOD Over ‘Don’t Ask, Don’t Tell’ Discharges

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A U.S. magistrate judge ruled that LGBTQ veterans discharged under “Don’t Ask, Don’t Tell” can proceed in their suit against the Department of Defense.

The suit, filed by five veterans, alleges that they faced discrimination because they were given other-than-honorable discharges from the military. The vets are asking the DOD to remove all references to sexual orientation from their discharge paperwork and for the discharges to be converted to honorable.

The plaintiffs say that the process to correct discharge paperwork is “burdensome, opaque, expensive, and for many veterans virtually inaccessible.” By having non-honorable discharges, LGBTQ vets are unable to reenlist. It’s also difficult for them to prove military service, the plaintiffs say, and they are blocked from veteran services via the Department of Veterans Affairs.

READ MORE: ‘So. Tell Me. Are You Transgender?’ — After DADT: Transgender Life In The US Military

“Because of the circumstances and language of my discharge, which served as a painful reminder of the trauma I experienced, I was never able to proudly say that I served my country,” said Steven Egland, a U.S. Army veteran and one of the plaintiffs.

“Following my Other Than Honorable discharge from the U.S. Navy, which was accompanied by terrible harassment on my ship, I experienced homelessness and shame,” Lilly Steffanides, another plaintiff and U.S. Navy Veteran, said. “After many years, I reconnected with the veteran community and do my best to act as a leader and supporter for other LGBTQ+ veterans like me. I am joining this lawsuit because I want justice for my LGBTQ+ brothers and sisters, and I want my service to my country to be recognized as honorable.”

The DOD argued that the suit should be dismissed because the process for correcting records is neutral. Magistrate Judge Joseph C. Spero disagreed, saying that by not remedying this type of discharge, it “gives rise to a plausible inference of discriminatory intent,” according to Bloomberg Law.

The DOD also argued that the plaintiffs’ claims were untimely. Spero disagreed, ruling that the process of having to apply for their records to be corrected itself results in trauma, Bloomberg Law reported.

The suit says over 35,000 members of the U.S. military had been discharged for real or perceived homosexual behavior between 1980 and 2011, the year the homosexuality restriction was lifted. The original memorandum repealing “Don’t Ask, Don’t Tell” said it was unnecessary to update the discharge paperwork for those thrown out of the military by the policy, according to Bloomberg Law.

In February 2024, the DOD said that it was working to upgrade LGBTQ vets’ discharges to honorable, according to DAV.org.

 

 

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US Ambassador to Hungary Slams Orbán After Being Blocked From Speaking at Parliament

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David Pressman, the openly gay U.S. ambassador to Hungary had harsh words for Hungarian Prime Minister Viktor Orbán at a Pride event. The speech came after the cancellation of an event about human rights scheduled to take place at the parliament building.

On Saturday, the ambassador to Hungary held a family Pride event at his home. During his speech, Pressman slammed Orbán and his government for using a “machinery of fear” as an apparatus to crush the LGBTQ community, according to the Guardian. He shared a story of how the country’s state-run media implied that he was a danger to children.

“At a Pride march organised by Hungarians in Pécs last year, I walked alongside a friend, fellow ambassador, and fellow parent,” Pressman said. “The cameras of the government-controlled media were trained on me – as they are right now – and filmed us as he introduced me to his 5-year-old child.

“The news that evening reported on ‘spotting’ my interaction with this child, and sinisterly described that I was seen ‘interacting with children’. They didn’t need to finish the sentence – they let fear do the rest.”

READ MORE: Republicans Are Secretly Meeting With Allies of ‘Putin’s Buddy’ Orbán to End Ukraine Aid: Report

The ambassador to Hungary had prepared the speech for a planned LGBTQ human rights event on June 21 at the parliament building. The event had been planned by Dávid Bedő, the chairman of the centrist opposition party, Momentum, according to The Daily Beast. Bedő had put in a request for the event, which was to take place in a meeting room, not on the floor of the parliament.

The speaker of the parliament, László Kövér, ignored the request until pressed. The day before the event was scheduled, Kövér denied the request, citing a bylaw that said the speaker must “protect the dignity of the parliament.” Kövér is one of the co-founders with Orbán of the far-right Fidesz party.

This Saturday was Budapest Pride, according to Pink News. The march brought out over 30,000 people, including Pressman. Homosexuality is technically legal in Hungary, but in 2021, Orbán’s government passed a law similar to Russia’s ban on LGBTQ “propaganda.” In the face of sanctions from the EU, Orbán refused to relent.

Two years ago, Orbán attended CPAC, the Conservative Political Action Conference, in Texas. His speech condemned the LGBTQ community.

“Hungary shall protect the institution of marriage as a union of one man and one woman,” he said at the time. “Family ties shall be based on marriage or the relationship between parents and children. To sum up, the mother is a woman. The father is a man. And leave our kids alone. Full stop. End of discussion.”

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