Longtime Gay Death Row Inmate’s Appeal Denied

Charles Russell Rhines.

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 took anti-gay stereotypes into account while determining his sentence. In line with normal practice, the Supreme Court merely listed the case as “certiorari denied” on June 18 without explanation.

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.”

Supreme Court declines to consider evidence of jurors’ bias

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 on the questions in the jurors’ note to the judge, Rhines appealed his sentence, arguing that they acted under the influence of passion, prejudice, and other arbitrary factors, but the South Dakota Supreme Court affirmed his sentence, relying on jurors’ statements 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 in Pena-Rodriguez v. Colorado. In that case, the high court laid out a modification to the general rule against inquiring into a jury’s decision-making or allowing jurors to testify about how bias may have affected the process, finding that the Sixth Amendment right to a fair trial requires an exception “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 sworn affidavits from several jurors indicating that Rhines’ homosexuality appeared to contribute to the death penalty decision. According to his 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 another 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’ homosexuality, the interviews yielded more evidence tending to support Rhines’ contentions. 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 are viewed together with the questions posed by the note to the judge, it became clear his homosexuality was a factor in his death sentence, and that this violated his right to be tried by an unbiased jury.

In Pena-Rodriguez, the high 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. Justice Anthony Kennedy’s opinion for the court stated that racial bias “implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.” In an 5-3 vote, with the late Justice Antonin Scalia’s seat still vacant, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented.

Rhines hoped to persuade the court to recognize a broader exception extending to sexual orientation. The lower courts were unwilling to take up the issue, seeing Pena-Rodriguez as a narrow exception to the general rule, based on the special concerns raised by race discrimination, but Rhines also encountered procedural hurdles blocking the courts from considering his new argument.

The Supreme Court’s denial of review is not a ruling on the merits, and could well have been due to those same procedural complications. Still, lower courts may construe the court’s action as reinforcing the narrowness of the exception created in Pena-Rodriguez.