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.