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The American Civil Liberties Union, ACLU of South Dakota, GLBTQ Legal Advocates & Defenders, Human Rights Campaign, Lambda Legal Defense And Education Fund, Inc., National Center For Lesbian Rights, and National LGBT Bar Association, filed an amicus curiae brief urging the Supreme Court to hold that prejudice against people who are lesbian, gay, or bisexual must play no part in jury decision-making, and especially in the determination of whether a person lives or dies.

Juror deliberations ordinarily are considered immune from judicial review based on evidence of their internal deliberations. But the Supreme Court recently established an important exception for cases involving racial bias in the jury room. In Pe帽a-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) the Supreme Court found that racial animus in juror deliberations is admissible to demonstrate a denial of the right to a fair and impartial jury. The prevalence and persistence of discrimination against lesbian, gay, and bisexual people strongly support the application of that holding to bias based on sexual orientation.

There was substantial evidence that the jury鈥檚 decision to sentence Petitioner Charles Russell Rhines to death was motivated, at least in part, by bias against him because he is a gay man. Mr. Rhines offered evidence that some of the jurors who voted to impose the death penalty in 1993 relied on the pernicious stereotype that the alternative鈥攁 life sentence served in a men鈥檚 prison鈥攚as something he would enjoy as a gay man. One juror recalled that, during deliberations, there was 鈥渁 lot of disgust鈥� about the fact that Mr. Rhines was gay. Another said that jurors knew Mr. Rhines was gay and 鈥渢hought that he shouldn鈥檛 be able to spend his life with men in prison.鈥� A third recounted hearing another juror say that, if the jury returned a life sentence for Mr. Rhines, 鈥渋f he鈥檚 gay, we鈥檇 be sending him where he wants to go.鈥� These beliefs were rooted in long-held stereotypes that gay men are sexually deviant or sexual predators.

A decision to sentence a person to death because he is gay violates the Sixth Amendment. The Supreme Court should afford lesbian, gay, and bisexual persons the opportunity to establish whether prejudice against them because of sexual orientation affected into a jury鈥檚 decision to convict or impose a sentence of death.

Update: April 15, 2019 Mr. Rhines鈥� petition was denied.