Was a Man Sentenced to Death for Being Gay?
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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Lily Tomlin Marries Kathy Griffin on New Year’s Day
Okay, so Lily Tomlin didn’t actually marry marry Kathy Griffin, but she did officiate her wedding to longtime beau Randy Bick.
“She said yes!” Bick exclaimed in the video. “Such an incredible moment in our lives.”
As for the ring exchange, well…
“Randy and I are doing sort of toy rings for the ceremony because neither one of us like wearing rings ever,” Griffin told People. “So we will never wear rings. Deal with it.”
The 80-year-old Grace and Frankie star started the ceremony with a quip of her own.
“What was supposed to be a shallow, ‘toot it and boot it’ one-night stand has grown and flourished into something far more meaningful,” Tomlin said. “They stayed together. Then they couldn’t stay away from one another.”
Here’s the rundown:
#HappyNewYears #2020NewYear #NewYearsDay pic.twitter.com/EV7gyjMFhV
— Kathy Griffin (@kathygriffin) January 1, 2020
Yes, we officially got married early this morning. I’m going to post the whole 15 minute ceremony on my YouTube page tomorrow. We are editing out the vows because we wanted those to be private and for us. The rest of it is just adorable. Lily Tomlin & Jane Wagner rule!#2020SoFar
— Kathy Griffin (@kathygriffin) January 2, 2020
BIG THANKS to @kourtneykardash & @KrisJenner for taking this photo Christmas Eve when they were kind enough to host a gigantic ENGAGEMENT PARTY FOR US! I mean they didn’t technically know it was an engagement party for us but boy they spared no expense! Pic by The Collective You pic.twitter.com/CtdWTFU9Ob
— Kathy Griffin (@kathygriffin) January 1, 2020
The entire ceremony was just under 14 minutes but I have to give you guys the uncut first 75 seconds. LOVE IT! We promised you atypical. We are in love and we cannot stop laughing. Thank you @LilyTomlin and Jane Wagner!#HappyNewYear pic.twitter.com/O5vOss3TCD
— Kathy Griffin (@kathygriffin) January 1, 2020
“Yes, we officially got married early this morning,” Griffin tweeted. “I’m going to post the whole 15 minute ceremony on my YouTube page tomorrow. We are editing out the vows because we wanted those to be private and for us. The rest of it is just adorable. Lily Tomlin & Jane Wagner rule!”
Wagner and Tomlin married in 2013. They have been together for over 40 years.
Image via screengrab.
Facebook Begins Removing False HIV-Related Ads After More Than 50 LGBTQ Groups Complain
Facebook has started pulling ads with misinformation regarding PrEP and Truvada after more than 50 LGBTQ organizations signed an open letter addressed to Chairman and CEO Mark Zuckerberg.
On December 9, HIV/AIDS and public health organizations called on Facebook to remove dangerous and misleading ads. As of Dec. 30, nearly 70 organizations are listed as signatories. The newest organizations to participate include AIDS Alabama, Fenway Health, Housing Works, New York City AIDS Memorial, and U.S. People Living with HIV Caucus. A full list is here.
Independent fact-checking agency Science Feedback confirmed that an ad featuring misinformation about PrEP was found to be “misleading” and would be removed from Facebook. More info here.
The Washington Post broke the news of Facebook’s action this morning.
“After a review, our independent fact-checking partners have determined some of the ads in question mislead people about the effects of Truvada,” Facebook spokeswoman Devon Kearns said, referring to the name of the drug. “As a result we have rejected these ads and they can no longer run on Facebook.”
“It’s gratifying to see one of Facebook’s fact-checkers backing up the overwhelming consensus of AIDS, LGBTQ, and HIV medical groups that these ads are misleading. But the question remains – why is Facebook taking money from these ambulance-chasing law firms for ads that are helping the spread of HIV?” said Peter Staley, a co-founder of the PrEP4All Collaboration.
“But Facebook has put a warning on only one ad thus far, with many more unaffected,” he continued, adding: “If this is their official response, after ignoring us for months, then it’s a mess.”
“Removing select ads is a strong first step, but the time is now for Facebook to take action on other very similar ads which target at-risk community members with misleading and inaccurate claims about PrEP and HIV prevention,” said Sarah Kate Ellis, GLAAD President and CEO.
“The time is now for Facebook to take action on other very similar ads which target at-risk community members with misleading and inaccurate claims about PrEP and HIV prevention.” https://t.co/QqupUEy1r0
— Sarah Kate Ellis (@sarahkateellis) December 30, 2019
Adding, “Dozens of organizations have told Facebook that the safety and effectiveness of PrEP to prevent HIV transmission is unequivocal. The pervasiveness of these ads and the subsequent real world harm should be catalysts for Facebook to further review how misleading and inaccurate ads are allowed to be targeted at LGBTQ and other marginalized communities.”
The CDC states that “studies have shown that PrEP reduces the risk of getting HIV from sex by about 99% when taken daily,” however, public health officials cite the Facebook and Instagram ads with creating dangerous barriers to PrEP usage.
Earlier this month, Senator Elizabeth Warren tweeted support of the campaign to get Facebook to remove the ads and New York Governor Andrew Cuomo also issued a statement of support. On December 20, Sen. Bob Menendez, a senior member of the Senate Finance Committee that sets national health policy, also sent a letter to Zuckerberg calling the decision to allow the misleading ads to run “particularly egregious.”
The letter can be found here and excerpted below.
“Using Facebook’s and Instagram’s targeted advertising programs, various law firms are attempting to recruit gay and bisexual men who use Truvada PrEP as an HIV preventative to join a lawsuit, claiming that the drug has caused harmful side effects in this patient population, specifically bone density and kidney issues. By focusing on “Truvada” and PrEP — rather than “Tenofovir Disoproxil Fumarate” (or TDF) and HIV positive individuals who use it as an antiviral — the law firms’ advertisements are scaring away at-risk HIV negative people from the leading drug that blocks HIV infections. This is despite numerous studies underscoring the safety of TDF in HIV-negative PrEP users.
Leading public health officials, medical professionals, and dedicated PrEP navigators and outreach coordinators have shared that these advertisements on Facebook and Instagram are being directly cited by at-risk community members expressing heightened fears about taking PrEP. This issue goes beyond misinformation, as it puts real people’s lives in imminent danger.”
Three medical and HIV prevention experts recently wrote an op-ed calling out the ads, noting: “As public-health leaders, we are concerned that these often misleading and inflammatory advertisements are causing people to decide not to start PrEP or, in some cases, stop PrEP altogether. PrEP is a critically important component of the national plan to end the HIV epidemic in the United States by 2030.”
LGBT Americans Are Poorer in the South Than Anywhere Else in the Country
A new report released Tuesday showed that in a majority of U.S. states, LGBT people experience higher rates of poverty than cisgender straight people. The findings were released by the Williams Institute at UCLA School of Law.
Statistics reveal that more LGBT Americans are poor in the South at 24%, followed by the Midwest (23%), the West (22%), and the Northeast (18%).
Researchers analyzed data from the 2014-2017 Behavior Risk Factor Surveillance System (BRFSS), a health survey by the Centers for Disease Control and Prevention that collects state data on health-related risk factors and conditions among adults. The BRFSS offers an optional module that asks respondents to identify their sexual orientation and gender identity, and 35 states included that module in their state-level survey.
The survey does not collect data from youth. As a result, the study does not provide information about LGBT people under age 18, or LGBT people of any age in the 15 states that do not collect the data.
In addition to poverty rates, researchers examined social statuses that traditionally contribute to economic stability, including gender, race, age, and urban-rural residence in some states.
“There is so much more to learn about LGBT poverty in individual states,” said lead author Soon Kyu Choi, project manager at the Williams Institute. “We need to better understand the connection between differing poverty rates across states with variations in LGBT related public policies and public attitudes that may limit economic opportunities for LGBT people.”
Key Findings: Midwest: Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, Ohio, and Wisconsin
•LGBT people have higher poverty rates than cisgender straight people in all eight states.
•Transgender people have higher poverty rates than do cisgender men in Illinois, Indiana, Iowa, Kansas, Minnesota, and Ohio.
•LGBT people of color have higher poverty rates than White LGBT people in Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, and Ohio.
Key Findings: Northeast: Connecticut, Massachusetts, New York, Pennsylvania, Rhode Island, and Vermont
•In all six states, LGBT people have higher poverty rates than cisgender straight people.
•LGBT people of color have higher poverty rates than White LGBT people in Connecticut, Massachusetts, New York, Pennsylvania, and Rhode Island.
Key Findings: South: Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, Virginia, and West Virginia
•In all Southern states except Florida, LGBT people are more likely to be poor than cisgender straight people.
•In Florida, Kentucky, and Virginia, rural LGBT people have higher poverty rates than urban LGBT people.
•In West Virginia, the urban LGBT poverty rate is higher than the rural LGBT poverty rate.
Key Findings: West: California, Colorado, Hawaii, Idaho, Montana, Nevada, Washington, and Wyoming
•LGBT people have higher poverty rates than cisgender straight people in Hawaii, Idaho, Montana, Washington, and Wyoming.
•Transgender people have higher poverty rates than do cisgender people (or cisgender men) in California, Hawaii, Montana, Nevada, and Washington.
“This study provides a foundation for understanding LGBT poverty by state. But clearly, more data are needed in the states that are not yet collecting SOGI data,” said study author Bianca Wilson, Senior Scholar of Public Policy at the Williams Institute. “As more states begin to include these critical questions on all of their surveys, we can provide nuanced analyses that inform effective policies and interventions that meet the needs of LGBT people in specific states.”
This study is part of the Pathways to Justice Project, a long-term project at the Williams Institute examining poverty rates, personal narratives, and experiences with economic development and food insecurity services among LGBTQ people. Read the report.
Image via Shutterstock.
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