Bias in the Courtroom

Under the Fourteenth Amendment, the legal system must give equal protection to all, regardless of immutable characteristics like gender or race—but ignorance and bias in the legal system have long resulted in unjust outcomes for queer people in death penalty cases.

The Supreme Court has held that prosecutors may not exclude jurors based solely on their race or gender, but it has never ruled on whether the same prohibition applies to sexual orientation, or clarified whether all gender identities are protected. The Court has ruled that the Fourteenth Amendment’s Due Process and Equal Protection Clauses apply to people who identify as gay, and based on this precedent the Ninth Circuit Court of Appeals held in 2014 that “equal protection prohibits peremptory strikes based on sexual orientation.” At least twelve states, including California and New York, have passed legislation or decided cases barring discriminatory strikes against LGBTQ+ potential jurors. The American Bar Association has urged all courts to follow suit, and the federal Equality Act introduced in June 2023 would enshrine jury access rights for members of the queer community. However, there is currently no law that prevents actors in 38 other states and the federal government from using peremptory strikes to exclude jurors based on their sexual orientation and gender identity. 

One major obstacle to ensuring equal protection for LGBTQ+ people is the fact that a potential juror’s sexual orientation or gender identity usually isn’t evident in the same way that their race might be (though racial identity is also vulnerable to the legal system’s mistakes and guesswork). Queer potential jurors may not wish to publicly express their identity for fear of harassment and discrimination, or for their own reasons. The Sixth Amendment requires that a jury represent a “fair cross-section” of the community, but community demographic statistics do not track sexual orientation or trans identity. As a result, legitimate privacy concerns and constitutional commands for jury representation sit in tension. Courts have ruled differently on whether lawyers can ask potential jurors about their queer identity depending on the facts of the case. 

The death penalty trial of former San Francisco Supervisor Dan White for the 1979 murders of Mayor George Moscone and Supervisor Harvey Milk brought many of these issues to the fore. Milk was the first openly gay elected official in the country, and he and White had often clashed over Milk’s pro-LGBTQ+ political initiatives. White assassinated Milk and Moscone with his police-issue revolver in City Hall. The trial judge denied White’s defense attorney the right to directly ask potential jurors about their sexual orientation, but the attorney was permitted to ask questions such as “Do you support homosexual rights?” and “Do you have homosexual friends?” to try to elicit information about each person’s sexual orientation. The attorney then struck at least three people who identified as gay, resulting in a seated jury that had no openly gay members. The gay community erupted in anger when White received a sentence of seven years in prison for voluntary manslaughter instead of death. Protestors marched in the city chanting: “All straight jury, no surprise / Dan White lives and Harvey Milk dies.” 

According to Paul Lynd’s account of the case, members of San Francisco’s gay community “believed they had been deliberately excluded” from the jury, and if their sexuality “represented a dividing line qualifying or disqualifying citizens for jury service, then lesbians and gay men were not equal under the justice system and had no reason to have confidence in its judgments.” 

Just a few years later, a San Francisco court allowed voir dire questions about sexual orientation in the death penalty trial of Edgar Hendricks, who had done sex work for male clientele and was accused of murdering two gay men who allegedly hired him. Hendricks expressed a strong hatred towards gay men and was later convicted of two additional murders of gay men in Los Angeles. The judge held that the questioning was appropriate because it related to Hendricks’ motives. Ultimately, two openly gay jurors were seated, and one served as foreperson; the jury sentenced Hendricks to death. Some saw the Hendricks case as “paying due sensitivity” to the San Francisco LGBTQ+ community after the White case, as “police and prosecutors pointed to the outcome in Hendricks as proof of their concern about solving and prosecuting crimes against lesbians and gay men.” 

However, in line with the historical use of capital punishment against queer people, sexual orientation often arises as a capital trial issue when the defendant, not the victim, is queer. Many potential jurors arrive at the courthouse with an anti-gay bias. Studies have found that as many as 17% of potential jurors admit that they could not be fair if one of the parties to the case was gay, 3.5 times more than the potential jurors who said they could not be fair if a party was female, Black, or Latino. While many of these studies predate the Supreme Court’s 2015 decision in Obergefell v. Hodges, which authorized gay marriage nationwide and heralded an exponential increase in public support for queer rights, a minority of Americans still hold staunchly anti-gay views. According to Gallup, while 71% of Americans support same-sex marriage, 59% of weekly churchgoers and 51% of Republicans oppose it. Older people and residents of the South are also less likely to support gay marriage. These same groups typically have more time and financial security to serve on juries, and since most active death penalty states are in the South, members of these groups are more likely to be asked to serve as a juror on a death penalty case.

Evidence of explicit juror bias has emerged in several capital cases. During deliberations in the South Dakota trial of Charles Rhines, jurors reportedly expressed “a lot of disgust” that Rhines was gay, with one calling him “that SOB queer.” During penalty phase deliberations, jurors argued that “if he’s gay, we’d be sending him where he wants to go,” and he “shouldn’t be able to spend his life with men in prison.” Rhines raised these issues in an appeal to the Supreme Court, but the Court denied review and Rhines was executed on November 4, 2019. “Mr. Rhines’s case represents one of the most extreme forms anti-LGBT bias can take,” said Ethan Rice, an attorney with queer advocacy group Lambda Legal. “Cases where bias is a factor in jury decision-making show exactly why the death penalty is unjust and should not be maintained in our society.”  

In Eric Patrick’s case in Florida, a juror admitted during voir dire that he “would have a bias” if he believed Patrick was homosexual. “Put it this way, if I felt the person was a homosexual, I personally believe that person is morally depraved enough that he might lie, might steal, might kill,” the juror said. Patrick, who was homeless, did not identify as gay, but engaged in sex work with men for money and was accused of killing a male client. His attorney did not object to the juror being seated, and Patrick was ultimately sentenced to death by the bare minimum vote allowed in Florida at the time: 7-5. In 2018, the Florida Supreme Court overturned Patrick’s sentence along with over 150 other Florida death-sentenced prisoners, but also ordered the trial court to conduct an evidentiary hearing to determine if Patrick’s lawyer had been ineffective during jury selection. Patrick died on death row in December 2023 at age 60 while awaiting resentencing. 

Once the jury has been selected, the parties present their cases. There are many examples of capital cases in which prosecutors weaponized tropes about sexuality to secure a death sentence. 

Jay Neill was accused in Oklahoma of the murders of four people, including three women, during a bank robbery he committed at age 19. His co-defendant was his roommate and boyfriend Robert Grady Johnson. The discrimination began during the police investigation, with the Chief Inspector of the Oklahoma State Bureau of Investigation declaring that in “most cases of overkill…the perpetrator turns out to be a homosexual.” The state psychiatrist who declared Neill competent to stand trial called him “a little guy who wants to pout and put on a show.” At trial, the prosecutor implored the jurors to consider Neill’s sexuality when deciding on the punishment: 

“I want you to think briefly about the man you’re setting [sic] in judgment on and determining what the appropriate punishment should be…I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual…You’re deciding life or death on a person that’s a vowed [sic] homosexual.”

The jury sentenced Neill to death. On review, a federal appeals court held that the prosecutor’s statements were improper, but harmless. Neill was executed on December 12, 2002.

Because the prosecutor’s blatant homophobic hatemongering at sentencing has no place in the courtrooms of a civilized society, and Neill’s appellate counsel’s failure to raise the issue on direct appeal constitutes clear and plain prejudicial neglect, I respectfully dissent. […] I cannot sanction—because I have no confidence in—a proceeding tainted by a prosecutor’s request that jurors impose a death sentence based, even in part, on who the defendant is rather than what he has done.

- Judge Carlos F. Lucero, dissenting from the Tenth Circuit Court of Appeals decision upholding Neill’s conviction and sentence

North Carolina prosecutors used Eddie Hartman’s sexual orientation to undermine crucial mitigating evidence. When the defense presented evidence showing that Hartman had been sexually abused by several older male relatives as a child, the prosecutor repeatedly asked the testifying witnesses whether they knew that Hartman was gay. The defense argued that by doing so, the state was improperly suggesting that Hartman had been “asking” for the abuse, but appellate courts held that there was no error. Hartman was executed on October 3, 2003, over the protests of gay rights groups. 

The stereotype expressed by the jurors in Charles Rhines’ case—that only a death sentence could be punishment for a gay man because life in prison with other men would be enjoyable—has been a longstanding tool of prosecutors in capital cases. In Calvin Burdine’s trial in Texas for the murder of his abusive male partner, the prosecutor argued that “sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual.” It would be “like setting a kid loose in a candy store,” he said. A prosecutor in a Georgia case argued to the jury that “if anal sodomy is your thing, prison isn’t a bad place to be.” On appeal, a federal judge wrote that the “despicable nature of this comment speaks for itself” and the “prosecutor’s antics have no place in our system of justice”—but concurred in denying relief to the defendant.

Prosecutors have weaponized a different set of strategies against lesbian capital defendants. According to attorney and activist Joey Mogul, “the labeling of a woman as a lesbian often falsely brands her as a man hater, aggressive, and deviant, and thus more capable of committing a crime than a heterosexual woman.” Prosecutors draw on stereotypes to “defeminize” lesbian defendants and counteract the “protectionist notions” jurors might feel towards women. The woman’s gender “transgression”—her failure to follow prescribed female norms of docility, submissiveness, and heterosexuality—becomes an unspoken aggravating factor in the decision to seek death. Against the backdrop of racial stereotypes that prosecutors have wielded to portray non-white defendants as more dangerous, this “defeminization” tactic becomes even more effective when used against lesbian women of color.

Wanda Jean Allen was accused of killing her girlfriend, Gloria Leathers, in Oklahoma. While both Allen and Leathers were lesbian women with violent pasts—each had previously killed another woman—prosecutors gendered them differently. The state told the jury that Allen was the “man” and “wore the pants” in the relationship. Prosecutors also emphasized that Allen sometimes spelled her middle name “Gene,” the typical male spelling. The jury did not hear key mitigating evidence, including that Allen had suffered two severe head injuries as a teen: she had been hit by a truck and stabbed in the left temple, compromising her brain function and resulting in an IQ in the intellectual disability range. “I also take exception to the majority finding the evidence [Allen] was the ‘man’ in her lesbian relationship has any probative value at all…its only purpose was to present the defendant as less sympathetic to the jury than the victim,” Judge James Lane wrote in dissent to the Oklahoma Court of Criminal Appeals ruling upholding the conviction and sentence. Allen was executed on January 11, 2001, becoming the first Black woman put to death in the United States in nearly fifty years. 

Bernina Mata, a Latina woman, was tried in Illinois for the murder of John Draheim, a white man whom she met at a bar. Mata’s co-defendant and roommate Russell Grundmeier participated in the murder and testified against her in exchange for a plea deal. Mogul, who represented Mata on appeal, writes that though Grundmeier said he was in a sexual relationship with Mata, the state “bombarded the jury with an avalanche of evidence of Ms. Mata’s lesbianism” as motive for the crime. Prosecutors read titles of books from Mata’s personal library, including The Lesbian Reader, Call Me Lesbian, and Homosexuality, and asked ten testifying witnesses about her sexual orientation—all while minimizing Grundmeier’s role in the crime. The state’s theory culminated in prosecutor Troy Owen’s argument to the jury: 

“We are trying to show that [Ms. Mata] has a motive to commit this crime in that she is a hardcore lesbian, and that is why she reacted to Mr. Draheim’s behavior in this way. A normal heterosexual woman would not be so offended by such conduct.”

Mata was sentenced to death, while Grundmeier received immunity for the murder and was sentenced to just four years on a lesser charge. “The prosecutors flaunted Ms. Mata’s sexuality before the jury because they knew some jurors would find it distasteful and others would deem her to be sick, perverted, and more worthy of death,” Mogul writes. Mata’s sentence was overturned when Governor George Ryan ordered a mass commutation of Illinois’ death row in 2003; she is currently serving life in prison. 

It is my belief that many prosecutors deliberately and shamelessly raise a defendant’s queer identity or manipulate stereotypes of queers to prejudice defendants before juries and inflame them into delivering a death sentence. 

- Joey Mogul, attorney for Bernina Mata

The prevalence of anti-LGBTQ+ animus in American culture means that sometimes the very people charged with protecting the interests of queer defendants are the same ones who discriminate against them. 

Calvin Burdine was assigned a defense lawyer who dropped numerous slurs about his client’s sexuality. Burdine’s attorney Joe Cannon used the words “tush hog,” “queer,” and “fairy” to refer to his own client and his co-defendant at various times during the trial. Cannon did not object to seating three jurors who admitted to homophobia during voir dire, nor did he object to the prosecution’s introduction of Burdine’s conviction under an anti-sodomy law (a type of law designed to criminalize gay sex that has since been deemed unconstitutional by the Supreme Court). The prosecutor used the sodomy conviction to argue that Burdine would be a future danger to society. An appellate court later vacated Burdine’s conviction because Cannon slept through large portions of the trial—but did not rule on whether Burdine was also prejudiced by Cannon’s bias against his own client. Burdine is now serving a life sentence.

Another area in which queerphobia is on display is the much-criticized Gay/Trans Panic Defense, when the defendant argues that he killed an LGBTQ+ victim because the victim made unwanted sexual overtures or revealed themselves as transgender. A comprehensive study of cases from 1970 to 2021 found that asserting this defense successfully resulted in a reduction of murder charges one-third of the time. Attorney Omar T. Russo argues that the defense is a form of victim-blaming, as it “puts the victim under a microscope regarding his or her identity, rather than placing the defendant under the microscope for his or her own conduct.” It essentially conveys that nonviolent queer expression, or even the perception of it, justifies murder. Critics argue that courts would never accept such a defense based on a victim’s race or religion, because a violent response to those identities would be seen as bigoted. The assertion of the Gay/Trans Panic Defense implies that a violent response to sexual orientation or gender expression is appropriate. 

California became the first state to ban the Gay/Trans Panic Defense in 2014, with a law stating that provocation could not be objectively reasonable if it resulted from the victim’s actual or perceived sexual orientation or gender identity. According to the Movement Advancement Project, seventeen states and the District of Columbia have banned the defense as of spring 2024. The American Bar Association has called on all federal, tribal, state, local and territorial governments to follow suit. 

An emerging issue in capital cases involving queer people is defense use of gender dysphoria as a mitigating factor. Gender dysphoria is a medical disorder defined by the American Psychiatric Association as “marked incongruence” between a person’s “experienced or expressed gender and the one they were assigned at birth.” Common comorbidities include other psychiatric disorders such as depression and anxiety as well as substance abuse issues. Treatment typically involves aspects of a social and/or medical gender transition. The diagnosis is itself controversial, as critics argue that it could be misinterpreted to pathologize trans people and reinforce a gender binary that many trans people may not identify with, while others argue that it is necessary to allow trans people to access gender-affirming medical care and insurance coverage.

Psychiatric disorders and substance abuse are frequently presented as mitigating factors in capital cases as part of an individualized sentencing determination. The evidence helps jurors empathize with the defendant and understand the events leading up to the crime, with the goal of convincing the jury to vote for life instead of death. Recently, several death-sentenced prisoners who began a gender transition on death row have argued on appeal that their gender dysphoria contributed to their decision-making at the time of the crime or during the trial process. Attorney Madeline Porta observes that this argument raises “the question of what a criminal defense attorney should do when the interests of her client conflict with or cause harm to the interests of others, particularly marginalized and oppressed communities.” While a capital defendant’s gender dysphoria is undoubtedly important to understanding their mental state preceding a murder, as depression or suicidality would be, observers fear that the evidence could be misinterpreted to argue that trans people are more likely to commit capital offenses, and that bad faith actors will seize upon such arguments to demonize trans people in the broader culture. 

To ensure dignity for trans defendants and prisoners, experts say that courts must approach their cases with care, understanding and conveying to the public that gender dysphoria is not the same as gender identity—it is the mental condition associated with not being able to express one’s true gender identity. And research shows that the overwhelming majority of people with diagnosable mental disorders do not commit violent crimes. The case of Leslie Ann Nelson illustrates an evolving approach to this issue. Nelson, a trans woman, argued at trial that her gender dysphoria and related mental illness contributed to the killing of two police officers. A New Jersey jury sentenced her to death in 1997, but her death sentence was reversed because of prosecutorial misconduct before a second jury sentenced her to death in 2001. This time, however, the New Jersey Supreme Court conducted a detailed review of Nelson’s psychological history, including her gender dysphoria, and ordered another sentencing hearing after finding that that the jury instructions had prevented the jury from properly weighing aggravating and mitigating factors. New Jersey abolished the death penalty before that resentencing hearing occurred, and Nelson is currently serving a life sentence.

Research and reporting show that judges may hold the same racist, sexist, and misguided beliefs as any member of the public—including animus towards LGBTQ+ people. 

In Gregory Dickens’ case, the judge’s bigotry was personal. Dickens, who was gay, was tried for the murder of a couple in Arizona, though all parties acknowledged that it was Dickens’ 16-year-old companion who pulled the trigger. Judge Tom Cole sentenced Dickens to death under Arizona’s law at the time, which gave judges and not juries the final power to issue a death sentence. Three jurors wrote to the judge after the trial to protest the sentence. Evidence later emerged that Judge Cole regularly wrote hate-filled letters to his son Scott, who was gay and battling AIDS. In one letter, Judge Cole said he hoped Scott would “die in prison like all the rest of [his] f*ggot friends.” Scott’s friends recalled him coming home with bruises and injuries after meeting his father, including one incident where Scott returned with a broken car windshield and black eye after telling his father he planned to perform in a drag show. Appellate courts held that Judge Cole’s bias was not enough to warrant a new trial for Dickens. Dickens died on death row of an apparent suicide in 2014.

Protecting Jury Access and Banning Discriminatory Defenses

The American Bar Association unanimously approved a resolution in 2018 urging all courts to extend Batson v. Kentucky (1986) to prohibit discrimination against LGBTQ+ jurors. The Equality Act, currently pending in Congress, would cement protections for LGBTQ+ people that would extend to their right to serve on a jury. The ABA also issued a unanimous resolution in 2013 recommending that state and local governments ban the Gay/Trans Panic Defense. 

Exception for Explicit Bias During Jury Deliberations 

While juror deliberations are generally shielded from court and public scrutiny, the Supreme Court held in Peña-Rodriguez v. Colorado (2017) that trial courts could consider evidence about jury deliberations when a juror “makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict.” In Peña-Rodriguez, where the defendant was accused of unlawful sexual conduct, two jurors revealed that another juror had made racist comments including, “I think he did it because he’s Mexican and Mexican men take whatever they want.” The Court ruled that the trial court could inquire into the deliberations to assess whether the juror’s statement denied the defendant his Sixth Amendment right to an impartial jury. 

Scholars and advocates have proposed extending Peña-Rodriguez to apply to cases where a juror makes homophobic comments. They argue that, like racial bias, anti-LGBTQ+ bias “implicates unique historical, constitutional, and institutional concerns” and risks “systematic injury to the administration of justice”—and existing procedures like voir dire fail to rout such bias from the jury pool. Considering America’s history of discrimination against queer people, including nonconsensual sterilization, forced conversion, imprisonment, and execution, they argue that the more powerful Peña-Rodriguez remedy is needed to address anti-queer animus in jury trials.  

Accountability for Attorneys

Similarly, scholars have pointed to the Supreme Court’s race-based decision in Buck v. Davis (2017) as a possible analogue that could provide protections for queer defendants. Duane Buck’s own attorney presented an expert witness who testified that Buck was statistically more likely to commit future violent crimes because he was Black. The Supreme Court held that Buck had received ineffective assistance of counsel. “Our law punishes people for what they do, not who they are,” Chief Justice John Roberts wrote for the majority. “Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.” In theory, Buck could afford relief to queer defendants whose attorneys discriminate against them, resulting in ineffective representation that led those defendants to be punished for “who they are.”

Scholars also argue that the state’s use of homophobic stereotypes in capital cases should constitute reversible error. Once the defense establishes that the prosecution made biased comments about the defendant’s sexual orientation or gender identity, there would be a presumption in favor of a new trial, and the state would have to show why the comments did not prejudice the defendant. This burden-shifting framework echoes the procedure used under Batson to prevent prosecutors from striking jurors based on race or gender.