Gay Death Row Inmate Wants SCOTUS Review of Jury Bias Claim

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By Jordan S. Rubin

A death row inmate who says anti-gay bias tainted his sentence wants last term’s U.S. Supreme Court ruling on racial bias in the jury room to save him. But a legal scholar told Bloomberg Law the inmate may be raising the issue too soon.

The case pits two evolving areas of the law against one another: gay rights and the sanctity of the jury room.

Charles Rhines points to the Supreme Court’s divided decision last term in Peña-Rodriguez v. Colorado for support. There the court pierced the otherwise sacrosanct veil of jury deliberations to undo convictions marred by racist remarks.

Rhines argues the reasoning from that case should apply to his sexual orientation bias claim, particularly because he’s facing the ultimate punishment.

But Rhines wants to improperly expand Peña-Rodriguez to his case, the state of South Dakota said in opposition. It argued that the decision was limited to racial discrimination, which raises unique historical and constitutional issues, and doesn’t apply to other types of discrimination.

The justices are scheduled to consider the petition at their June 14 conference. The court could say as early as June 18 if it’ll take or reject the case.

Too Soon?

At least one criminal law scholar thinks the high court will stay out of this one.

“It seems unlikely that the Court wants to expand Peña-Rodriguez so quickly,” Stephen E. Henderson told Bloomberg Law. He teaches at the University of Oklahoma College of Law in Norman, Okla.

Peña-Rodriguez “changed over two-hundred years of legal precedent, the Court strained mightily to cabin the new constitutional right, and there has been no time to work out the many necessary details even in the racial context,” Henderson said.

‘Bloodcurdling’ Confession

Rhines was sentenced to death by a South Dakota state jury for the 1992 murder of Donnivan Schaeffer.

The 22-year-old Schaeffer caught Rhines robbing the donut shop where Schaeffer worked.

Rhines “pounded a hunting knife” into the base of Schaeffer’s skull, “partially severing his brain stem,” the state recounted in its brief opposing review.

The killer gave a “bloodcurdling confession,” the state said. Rhines cackled as he compared the young man’s death spasms to a “beheaded chicken running around a barnyard.”

Dueling Juror Claims

But Rhines says his death sentence is tainted because of jurors’ anti-gay stereotypes and animus.

He cites their statements during deliberations at his 1993 murder trial, as well as their note to the judge. Rhines’ petition says there was “lots of discussion of homosexuality” and “a lot of disgust” in the jury room.

According to his petition, one juror said he knew Rhines was a homosexual “and thought that he shouldn’t be able to spend his life with men in prison.” Another said locking Rhines up with other men for life “would be sending him where he wants to go.”

The state disputes Rhines’ account. His juror affidavits are “inherently unreliable” and were procured by harassment and ambush, the state argued.

The jurors denied sexuality was a factor in their sentence in interviews with a state investigator, South Dakota said in its opposition brief. They were instead motivated by the “calloused and gruesome nature of the murder” and, “most of all,” the cackling confession, the state said.

Rhines also points to a jury note from the penalty phase deliberations, where they asked the judge if he would be allowed to “mix with the general inmate population,” “brag about his crime” to “young men,” or “have a cellmate.”

The state said only a strained reading reveals prejudice in those queries.

Race Cases on Point: Rhines

The “logic and principles of Peña-Rodriguez” apply equally to anti-gay bias claims, Rhines argued. “Prejudice based on sexual orientation is just as long-standing and deeply rooted,” he noted in his petition, detailing how the nation’s prejudice has historically been codified into law, criminal law included.

“To allow a juror to vote for a man’s death sentence on the basis of anti-gay animus and stereotypes unquestionably violates the Sixth and Fourteenth Amendments,” Rhines argued, citing another case from last term: Buck v. Davis.

In Buck, the high court tossed a death sentence after a witness told the jury Buck was more dangerous because he’s black.

“Our law punishes people for what they do, not who they are,” Chief Justice John G. Roberts Jr. wrote for the court in Buck. But he dissented from Justice Anthony M. Kennedy’s majority opinion in Peña-Rodriguez.

Gay Bias Not ‘Distinct': South Dakota

South Dakota argues that anti-gay bias is distinguishable from racism.

The state challenges Rhines’ statement that his sexual orientation is “immutable.”

“Rhines could have tried his defense without the jury knowing of his homosexuality and without using his homosexuality as a mitigating circumstance,” the state’s brief said. “A black or Mexican defendant’s race is immutable to a jury.”

But that stance runs counter to, among other things, what the Supreme Court said in the landmark 2015 case Obergefell v. Hodges, which upheld same-sex couples’ right to marry. There, Kennedy wrote for the court that sexual orientation is “immutable.” Roberts dissented in that case, too.

“Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness,” Kennedy observed in Obergefell.

Nonetheless, the state goes on in its brief to argue that homosexuals haven’t faced discrimination like members of certain racial groups have.

“No civil war has been fought over it,” the state said, apparently referring to homosexuality generally. “No politician has ever proposed constructing a wall to keep homosexuals out of the country.”

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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