Death penalty appeal seeks to protect suspects from homophobic jurors

But "[n]o politician has ever proposed constructing a wall to keep homosexuals out of the country," opponents argue.


A South Dakota man sentenced to death in 1993 by a jury that fretted a life sentence would only gratify his homosexuality hopes the Supreme Court will spare him.

The jury’s ugly prejudices were clear to the original sentencing court at the time. As they deliberated sentencing, jurors sent a list of questions to the judge that centered on concerns that he might somehow enjoy prison.

The questions included “whether he would be allowed to ‘mix with the general inmate population,’ ‘create a group of followers or admirers,’ ‘brag about his crime to other inmates, especially new and[/]or young men…,’ ‘marry or have conjugal visits,’ or ‘have a cellmate,'” his attorneys write in their petition for Supreme Court consideration.

They argue that the court’s logic in a 2017 ruling that states must consider evidence of racially biased jury deliberations should extend, here, to evidence of homophobic bias among jurors in a capital case. That claim prompted South Dakota Attorney General Marty Jackley (R) to invoke President Donald Trump’s (R) signature campaign pledge in his reply brief, in a bit of rhetorical-ideological ping-pong.


No politician has ever proposed constructing a wall to keep homosexuals out of the country,” the state’s brief says. “No civil war has been fought over [sexual orientation]. No nationwide pogrom has been perpetrated for the enslavement or eradication of homosexuals.”

Many of the death penalty appeals that gain national traction from both reporters and abolition activists hinge on the idea of a wrongful conviction. A recent New York Times investigative column delved into such a case in California, where a black man appears to have been used as a patsy by police who not only neglected but intentionally destroyed evidence pointing to other, likelier suspects. Energy Secretary Rick Perry, while governor of Texas, sent Cameron Todd Willingham to the electric chair despite overwhelming scientific evidence that arson investigators had botched the case against him.

But process appeals from an admittedly guilty man, as in this newest case, are a steeper climb than exoneration cases. Jackley’s brief for the state leans heavily into not just the lack of an innocence argument but detailed physical and psychological claims about the murder.

A question of bias, not innocence

Charles Rhines was 35 when he bound and stabbed dead a man who walked into the previously-empty donut shop he was robbing. Rhines had been laid off at the Rapid City donut shop a few weeks before. Police said he stabbed the courier, who he knew, twice with a hunting knife before tying him up and putting the knife through the back of his neck.


Rhines’ appeal makes no contention of innocence, wrongful prosecution, or inadequate assistance from defense counsel (though one of his earlier appeals made that latter claim, unsuccessfully).

Instead, the question justices would face if they accept his petition is whether or not jurors’ avowed “disgust” with homosexuality, and multiple jurors’ reported admissions that it played a key role in their sentencing decision, should force the courts to reconsider whether the punishment had been properly ordained.

The court ruled last year that racial bias among jurors in reaching a guilty plea should moot their verdict. Rhines’ last-gasp appeal asks the justices to extend that logic both from race to sexuality, and from conviction to sentencing.

Even if the sentencing judge didn’t pick up on the prejudiced misconceptions — about both sexual orientation and prison life — that was plain in those questions, Rhines’ team says jury members have since come forward to make the realities in the room clear. The petition cites interviews with three jurors who said that some on the panel had specifically based their decisions to send him to death row on their orientiational bias.

One said several jurors “thought that he shouldn’t be able to spend his life with men in prison” when they were deciding whether he should be put to death or locked up until he died, according to Rhines’ legal team. Another remembered a peer commenting “that if he’s gay we’d be sending him where he wants to go.” (South Dakota’s responding brief to the court disputes these statements and accuses a group of Pennsylvania-based anti-death-penalty lawyers of harassing aging jurors into giving false statements, accusations which Rhines’ team in turn disputes.)

South Dakota’s argument takes pains to remind Supreme Court justices that Rhines makes no contention he is innocent. The state’s brief is heavy on the emotional language you’d expect to hear from a prosecutor at trial, or maybe a paperback novelist. The storeroom where Rhines killed Donnivan is termed “dingy,” the murdered man was “screaming and writhing in pain,” and his killer was “[u]naffected by the screams and blood and death” when he left the building.


These film-noir flourishes shouldn’t factor into the high court’s decision, though, Rhines’ supporters argue. This is purely a question of whether the laws governing racial bias in the justice system should be portable to questions of sexual orientation bias.

“[T]here is no principled distinction between racial bias and the anti-gay bias that infected Mr. Rhines’s sentencing decision,” the Death Penalty Information Center wrote in a release. At a more technical level, the argument is that jurors lied when they pledged they could give a gay man a fair hearing. But the meat of the question the Supreme Court would answer, if it accepts Rhines’ petition, is whether the legal system should acknowledge similar societal prejudices against LGBTQ community members as those it has acknowledged against people of color.

Justices from the high court are expected to decide on his petition on June 14.