The Supreme Court has denied a petition from South Dakota gay death row inmate Charles Russell Rhines, who challenges the fairness of his death sentence in light of evidence that some jurors were taking anti-gay stereotypes into account while determining his sentence. In line with its normal practice, the Supreme Court merely listed the case as “certiorari denied” without an explanation on June 18. Rhines v. South Dakota, 2018 WL 2102800 (No. 17-8791).
Rhines was convicted on murder and burglary charges in January 1993. His homosexuality featured in the testimony of several witnesses during the guilt phase of the trial. Rhines was charged with viciously hacking to death a man who blundered onto the crime scene where Rhines was committing a burglary. After Rhines was convicted, the court took evidence on the penalty phase, which included testimony by one of Rhines’ sisters that he was gay and had “struggled with his sexual identity.”
The jury began deliberating on the penalty on the afternoon of January 25, and sent out a lengthy note to the judge early on January 26. “In order to award the proper punishment we need a clear perspective on what ‘Life in Prison Without Parole’ really means. We know what the Death Penalty means, but we have no clue as to the reality of Life Without Parole. The questions we have are as follows: 1. Will Mr. Rhines ever be placed in a minimum security prison or be given work release. 2. Will Mr. Rhines be allowed to mix with the general inmate population. 3. Allowed to create a group of followers or admirers. 4. Will Mr. Rhines be allowed to discuss, describe or brag about his crime to other inmates, especially new and or young men jailed for lesser crimes (ex: Drugs, DWI, assault, etc.). 5. Will Mr. Rhines be allowed to marry or have conjugal visits. 6. Will he be allowed to attend college. 7. Will Mr. Rhines be allowed to have or attain any of the common joys of life (ex TV, Radio, Music, Telephone or hobbies and other activities allowing him distraction from his punishment.) 8. Will Mr. Rhines be jailed alone or will he have a cellmate. 9. What sort of free time will Mr. Rhines have (what would his daily routine be). We are sorry, Your Honor, if any of these questions are inappropriate but there seems to be a huge gulf between our two alternatives. On one hand there is Death, and on the other hand what is life in prison w/out parole.” The judge responded by telling the jury that “all the information I can give you is set forth in the jury instructions” and he refused a defense request to tell the jury not to base its decision “on speculation or guesswork.” Eight hours later, the jury returned a death sentence.
Seizing upon these questions, Rhines appealed his sentence arguing that the jury acted under the influence of passion, prejudice, and other arbitrary factors, but the South Dakota Supreme Court affirmed his sentence, relying on statements by the potential jurors during the selection process that they could be fair, and the court’s view that none of the questions in the note reflected anti-gay bias.
Still on death row a quarter century later, and having failed in every attempt so far to get post-conviction relief from the state or federal courts, Rhines took new hope from a decision issued by the Supreme Court on March 6, 2017, Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017). In that case, the Court recognized an exception to the general rule against inquiring into a jury’s decision-making process or allowing jurors to testify about how bias may have affected the process, finding that the 6th Amendment right to a fair trial requires an exception to the rule “where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant.”
In his newest appeals, Rhines sought to introduce affidavits (sworn statements) from several jurors indicating that Rhines’ homosexuality appeared to contribute to the jury’s decision for the death penalty. According to Rhines’ petition to the Supreme Court, one juror referred to Rhines as “that SOB queer,” and that this made other jurors “fairly uncomfortable.” A juror swore, “One of the witnesses talked about how they walked in on Rhines fondling a man in a motel room bed. I got the sense it was a sexual assault situation and not a relationship between two men.” This juror continued that if sentenced to life in prison, Rhines might be “a sexual threat to other inmates and take advantage of other young men in or outside of prison.” One juror swore that the jury “also knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” A juror declared that “one juror made a comment that if he’s gay, we’d be sending him where he wants to go if we voted for [life without the possibility of parole].” Yet a third juror said, “There 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.”
Responding to the affidavits, the state got an investigator to interview nine of the jurors. Although they denied that they had based the death sentence on Rhines’s homosexuality, their interviews with the investigators yielded more evidence tending to support Rhines’ contentions. For example, one of the jurors “recalled a comment to the effect that Rhines might like life in the penitentiary with other men,” while another said that “one juror made a joke that Rhines might enjoy a life in prison where he would be among so many men.”
Rhines argued that when these sworn juror statements were viewed together with the questions posed by the note, it became clear the his homosexuality was a factor in the jury’s determination of his death sentence, and that this violated his right to be tried by an unbiased jury on the issue of sexual orientation.
In Pena-Rodriguez, the Court had emphasized that race discrimination raises particularly strong issues, and did not state that exceptions to the usual rule should be made for all possible kinds of bias. The Court, in an opinion by Justice Anthony Kennedy, said that racial bias “implicates unique historical, constitutional and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.” The vote in the Court, reduced to eight members as the Senate Republican leadership stonewalled against President Obama’s nomination of appeals court judge Merrick Garland to fill the seat vacated by Justice Scalia’s death, was 5-3, with Chief Justice Roberts and Justices Alito and Thomas dissenting. Kennedy was joined by the four Democratic appointees, Justices Ginsburg, Breyer, Kagan and Sotomayor.
In reopening his case with a new round of state court and federal appeals following the Pena-Rodriguez opinion, Rhines hoped to persuade the court to recognize a broader exception to extend, at least, to sexual orientation, and further to extend it to the penalty phase of the jury’s deliberations. (Pena-Rodriguez went to the issue of racial bias influencing the jury to reach a guilty verdict, and did not rule on whether a challenge focused solely on the penalty phase should invoke the same exception.) The lower courts were unwilling to take up the issue, seeing Pena-Rodriguez as adopting a narrow exception to the general rule, based on the special concerns raised by race discrimination, and many of Rhines’ disappointments were due to procedural issues blocking the courts from considering this new argument.
The Supreme Court’s denial of review is not a ruling on the merits, and could well have been due to the same procedural complications that caused lower courts to reject Rhines’ new attempt to reopen his case. However, it is possible that lower courts may construe it as reinforcing the narrowness of the exception created in Pena-Rodriguez. Meanwhile, on May 25 the 8th Circuit Court of Appeals filed an Order denying Rhines’ petition for a writ of habeas corpus, also seeking to reopen the jury verdict.