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Supreme Court Rejects Appeals from Gay Death Row Inmate and Conversion Therapy Practitioners

Posted on: April 15th, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 15 that it will not hear an appeal by gay death row inmate Charles Rhines, who contends that the jury that chose death over life in prison without parole in his murder trial in 1993 was tainted by homophobic statements by some of the jurors during deliberations.  Rhines v. Young, No. 18-8029 (filed Feb. 15, 2019).  At the same time, the Court announced that it will not take up the question whether the U.S. 3rd Circuit Court of Appeals, based in Philadelphia, should reconsider its 2014 decision to reject a constitutional challenge to a New Jersey law prohibiting licensed health care providers from providing “conversion therapy” to minors.  King v. Murphy, No. 18-1073 (filed Feb. 11, 2019). Both of these petitions for review were considered long shots at best.

The South Dakota Attorney General’s Office filed a short reply to Rhines’ petition, insisting that its own investigation of the jury – sparked by his contentions – had failed to substantiate his claim that the jurors sentenced him to death because he is gay.   There is no doubt that a juror joked that Rhines, as a gay man, would enjoy being locked up for life in an all-male environment where he would be able to mingle with other prisoners and enjoy sexual contacts, as even interviews conducted by the AG’s office confirmed this.  Interviews of jurors by Rhines’ lawyers, conducted long after the trial, produced a range of recollections, ranging from a recollection that the juror in question was challenged for his remarks and apologized, to a recollection that there was considerable discussion of Rhines’ sexuality, which had been a topic of testimony during the penalty phase of the trial, when a family member testified that Rhines had struggled with his sexuality.

The jury sent a note to the trial judge during penalty deliberations, posing a series of questions about the conditions under which Rhines would be serving if he were sentenced to life without parole. Some of the questions inspired concerns by Rhines’ defense attorney that the jurors were inappropriately taking his sexual orientation into account in making their decision. The trial judge refused to respond to the questions, instructing the jurors to rely on the instructions he had previously given them.

Rhines has spent a quarter-century on death row since his conviction and sentencing, seeking to get courts to set aside the death sentence based on a variety of theories, but his hopes were spurred by a Supreme Court decision last year, holding that a court could breach the usual confidentiality of jury deliberations when there was evidence of inappropriate race discrimination by a jury.  Had the Court taken Rhines’ case, it would have provided an opportunity to determine whether juror homophobia should receive the same constitutional evaluation as jury racism.

Unfortunately, the federal courts in South Dakota and the 8th Circuit Court of Appeals found that this issue was not raised early enough in the appellate process, and that Rhines’ attempt to bring a fuller account of the juror interviews before the courts came too late.  As a result, no court has ever considered Rhines’ evidence of jury homophobia on the merits.  The Supreme Court had turned down a prior attempt by Rhines last year, while a prior appeal was pending before the 8th Circuit.  After the 8th Circuit rejected his latest attempt, Rhines filed a new petition, but in vain.

Publicity to his plight resulted in the submission of three briefs in support of his petition, by a Law Professors group, the NAACP Legal Defense & Education Fund, and the American Civil Liberties Union.  Although the Court granted the motions to receive those briefs, it rejected Rhines’ petition without comment.

The conversion therapy petition posed a novel question to the Court.  Should it order a federal appeals court to reopen a decision that had received unfavorable mention in a recent Supreme Court opinion in an unrelated case, when the Supreme Court itself had years ago rejected a petition to review the appeals court decision?

Conversion therapy practitioners filed a constitutional challenge to the New Jersey law banning conversion therapy, claiming it violated their constitutional free speech rights.  The federal district court and the 3rd Circuit Court of Appeals both rejected their argument.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014), cert. denied, 135 S. Ct. 2048 (2015).  The speech involved was “professional speech,” said the court of appeals, and thus entitled to less protection than political or literary speech.  The 3rd Circuit’s ruling reached the same result as a ruling by the San Francisco-based 9th Circuit in rejecting an earlier challenge to California’s conversion therapy ban, but the 9th Circuit had opined that the regulation of therapy was not subject to 1st Amendment challenge because it was a regulation of health care practice, not specifically aimed at speech as such.  These distinctions did not affect the outcome of the two cases.  Either way, the courts found that the state’s legitimate concerns about protecting minors from a practiced that he been condemned by leading professional associations outweighed the practitioners’ free speech claims.

However, in a new case arising from California last year, Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (June 26, 2018), the Supreme Court found fault with a state law that required licensed clinics providing services to pregnant women to advise them of the availability of abortion services from the state.  The Supreme Court found this to be “compelled speech” subject to the most demanding level of judicial review, “strict scrutiny.”  The state’s argument defending this requirement relied on the conversion therapy cases, arguing that the speech in question was “professional speech” subject to a less demanding level of judicial review.  Writing for the Court, Justice Clarence Thomas rejected that argument, and he specifically mentioned the 3rd Circuit’s ruling with disfavor.

Even though the Supreme Court had refused a petition to review the 3rd Circuit’s ruling in 2015, the conversion therapy practitioners asked the 3rd Circuit to reconsider its ruling in light of the Supreme Court’s negative comments about the earlier decision.  The 3rd Circuit refused, and this petition for Supreme Court review was filed on February 11.  Counsel for the respondents – New Jersey’s Attorney General and Garden State Equality, which had intervened as a co-defendant in the original case – thought so little of the petitioners’ chances that they did not file briefs in opposition.  Their confidence was justified.  It was never likely that the Supreme Court would order a circuit court to reopen a case from years ago that had already been denied direct review by the Supreme Court.

The Supreme Court’s April 15 announcements, deriving from its April 12 conference, failed to include any mention of five other pending cases related to LGBT rights that are being closely watched.  The Court will hold another conference to discuss pending petitions on April 18 (a day earlier than normal because of the Good Friday holiday on April 19), so there may be word on April 22 whether the Court will address sexual orientation and gender identity discrimination issues next term, as well as another “gay wedding cake” case.

Supreme Court Rejects Gay Death Row Inmate’s Appeal

Posted on: June 18th, 2018 by Art Leonard No Comments

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.