The U.S. Supreme Court has declined to review the case of a South Dakota death-row pris­on­er whose jurors made anti-gay state­ments and relied on homo­pho­bic beliefs in decid­ing to sen­tence him to death. On April 15, 2019, the Court with­out com­ment denied a peti­tion filed by Charles Rhines (pic­tured) ask­ing the Court to declare that the con­sti­tu­tion­al right to an impar­tial jury applies equal­ly to bias against a defendant’s sex­u­al ori­en­ta­tion. In a state­ment respond­ing to the Court’s deci­sion, Shawn Nolan, one of Rhines’ fed­er­al appeals lawyers, said: ​“As Chief Justice Roberts wrote in an ear­li­er case, ‘[o]ur law pun­ish­es peo­ple for what they do, not who they are.’ New evi­dence – which has nev­er been heard by any court – shows that some of the jurors who sen­tenced Mr. Rhines to death did so because of who he was, not for what he did.” The jurors in Rhines’ case knew that he was gay, and, Nolan said, new state­ments from jurors in the case ​“show that some jurors … thought that he would enjoy life in prison with oth­er men and it would not serve as a suf­fi­cient pun­ish­ment. The jurors’ anti-gay bias deprived Mr. Rhines of his right to a fair sen­tenc­ing process under the Sixth and Fourteenth Amendments.”

Rhines had sought review based on the Supreme Court’s 2017 rul­ing in Peña-Rodriguez v. Colorado that ​“where a juror makes a clear state­ment that indi­cates he or she relied on racial stereo­types or ani­mus to con­vict a crim­i­nal defen­dant, the Sixth Amendment requires … the tri­al court to con­sid­er the evi­dence of the juror’s state­ment and any result­ing denial of the jury tri­al guar­an­tee.” He argued that the same con­sti­tu­tion­al prin­ci­ple should apply to bias based on sexual orientation.

Jurors told Rhines’ attor­neys that “[t]here was lots of dis­cus­sion of homo­sex­u­al­i­ty” dur­ing sen­tenc­ing delib­er­a­tions. ​“There was a lot of dis­gust. … There were lots of folks who were like, ​‘Ew, I can’t believe that.’” In a 2016 sworn state­ment, juror Frances Cersosimo report­ed that one juror said, ​“If he’s gay, we’d be send­ing him where he wants to go” by sen­tenc­ing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn state­ment, ​“We also knew he was a homo­sex­u­al and thought he shouldn’t be able to spend his life with men in prison.” Several civ­il rights groups urged the Court to hear his case. The NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and sev­en LGBTQ rights orga­ni­za­tions sub­mit­ted ami­cus briefs in sup­port of Rhines. The NAACP Legal Defense Fund wrote, ​“Just as the Constitution does not per­mit a per­son to be sen­tenced to die because of his race, it should not per­mit a per­son to be sen­tenced to die because of his sex­u­al ori­en­ta­tion.” Nolan echoed that idea in his state­ment on the Supreme Court’s denial, say­ing, ​“both racial prej­u­dice and anti-gay prej­u­dice have no place in the crim­i­nal jus­tice sys­tem. Both under­mine pub­lic con­fi­dence in the fair­ness of the sys­tem, par­tic­u­lar­ly when jurors must decide between life impris­on­ment and death.”

Despite the 2017 deci­sion allow­ing con­sid­er­a­tion of racial­ly biased juror com­ments, the Court has declined to inter­vene in two cas­es this term in which death-row pris­on­ers were sen­tenced to death by racist jurors. On March 18, the Court denied review in the case of Georgia death-row pris­on­er Keith Tharpe. One of Tharpe’s jurors signed an affi­davit say­ing ​“there are two types of black peo­ple: 1. Black folks and 2. N[**]gers,” and Tharpe was not in ​“the ​‘good’ black folks cat­e­go­ry.” This same juror also said he ​“won­dered if black peo­ple even have souls.” On April 1, the Court also declined to hear the case of Julius Jones, an Oklahoma death-row pris­on­er whose jury includ­ed a juror who said, ​“they should just take the n****r out and shoot him behind the jail.” The Court also received harsh crit­i­cism after it vacat­ed a fed­er­al appeals court stay of exe­cu­tion and per­mit­ted Alabama to exe­cute Domineque Ray, a Muslim pris­on­er who said Alabama’s refusal to allow his imam in the exe­cu­tion cham­ber amount­ed to religious discrimination.

(Ariane de Vogue, Supreme Court won’t take up case of death row inmate who claims juror dis­crim­i­na­tion against him for being gay, CNN, April 15, 2019; Brooke Sopelsa and Associated Press, Supreme Court rejects death row appeal over anti-gay jurors, NBC News, April 15, 2019; Jacqueline Thomsen, Supreme Court won’t hear death penal­ty appeal alleg­ing anti-gay remarks from jurors, The Hill, April 15, 2019; Shawn Nolan, Attorney Statement Re: SCOTUS Denial in Anti-Gay Bias Death Penalty Case (Charles Rhines), April 15, 2019.) See U.S. Supreme Court.

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