Abstract

Excerpted From: Brett V. Ries, Not up for Deliberation: Expanding the Peña-rodriguez Protection to Cover Jury Bias Against LGBTQ+ Individuals, 72 Duke Law Journal 1567 (April, 2023) (281 Footnotes) (Full Document)

Juries are supposed to punish people “for what they do, not who they are.” Yet, these juror statements from Charles Rhines's criminal trial highlight that who Charles Rhines was--a gay man--may have mattered in deciding whether he deserved to live. Despite juror testimony that LGBTQ+ bias may have influenced the jury's sentencing deliberations, the Supreme Court denied Rhines's petition. On November 4, 2019, the jury's sentence became final and fatal when the State of South Dakota executed Charles Rhines. In 2019, a citizen of the United States was possibly executed simply for being gay. Charles Rhines deserved to be punished for his crime, not his sexuality. LGBTQ+ rights movement has been largely successful in securing equal rights and protections for the LGBTQ+ community. Within the past two decades, the Supreme Court has declared certain sodomy laws unconstitutional, protected the LGBTQ+ community's right to marry, and ruled that employment discrimination based on sexual orientation and gender identity violates the Civil Rights Act of 1964. LGBTQ+ individuals are being elected to public office in record numbers, and states are taking action against LGBTQ+ discrimination. However, this progress does not rectify the long history of discrimination that the LGBTQ+ community has faced and the discrimination that the community continues to face. Full equality has not yet been achieved, especially if the government can still execute someone despite evidence of jury bias against the defendant's sexuality. The government's ability to take away LGBTQ+ individuals' life and liberty through criminal convictions because of their LGBTQ+ identity is an alarming gap in constitutional protections for LGBTQ+ individuals.

This kind of discrimination persists, in part, because of Federal Rule of Evidence 606(b) and state equivalents of the rule. The rule, commonly known as the “no-impeachment rule,” prohibits a juror from “testify[ing] about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict” when a court is inquiring into the validity of a verdict. The no-impeachment rule is a policy choice, though, not a constitutional mandate. The courtroom is where the government exercises some of its most powerful authority, and the government should not be able to take away a defendant's liberty because of their LGBTQ+ identity. Jurors are “officers of the court,” and, by protecting jurors who use LGBTQ+ bias to convict or sentence a defendant, the government violates the Constitution and turns the jury into a tool of oppression. there appear to be several possible pathways to declaring this form of oppression unconstitutional. In Peña-Rodriguez v. Colorado, the Supreme Court declared an exception to the no-impeachment rule for evidence of juror statements of racial bias during deliberations that indicate the bias was a “significant motivating factor” in the juror's vote to convict. The Court's reason for the exception was the “unique historical, constitutional, and institutional concerns” with racial bias in the criminal justice system, but its opinion also left room open for other exceptions. In fact, constitutional protection against sex discrimination has followed protection against racial bias in another jury trial process: jury selection. The unique history of discrimination against LGBTQ+ individuals inside and outside the courtroom should be enough for an exception to the no-impeachment rule, but that is not the only option. Because protections against sex discrimination have followed protections against racial discrimination in a jury trial process before, the Supreme Court's recent ruling in Bostock v. Clayton County may provide another path. The Court ruled that employment discrimination based on sexual orientation and gender identity is sex discrimination under the Civil Rights Act of 1964 and therefore unlawful. Thus, if history repeats itself and sex discrimination also becomes an exception to the no-impeachment rule, it logically follows that discrimination in jury deliberations based on sexual orientation and gender identity is unconstitutional as well. Additionally, in Buck v. Davis, the Court declared, “Our law punishes people for what they do, not who they are.” Punishing LGBTQ+ individuals for their sexual orientation or gender identity is inconsistent with this principle and could possibly be the basis for an Eighth Amendment claim. More broadly, research on intersectionality also supports a rule treating racial, gender, and LGBTQ+ bias equally in jury deliberations because permitting one or more of these biases in jury deliberations could provide a cover for prohibited biases. The constitutional ends of the Sixth, Eighth, and Fourteenth Amendments--that a defendant receive a fair trial, a fair punishment, and fair treatment by the government--are all jeopardized by LGBTQ+ discrimination in jury deliberations. Note argues that the exception to the jury no-impeachment rule established in Peña-Rodriguez should be extended to LGBTQ+ discrimination in jury deliberations and proceeds in four parts. Part I details the history of discrimination against the LGBTQ+ community and how it has spread to jury deliberations. Part II describes Federal Rule of Evidence 606(b), which harbors the jury no-impeachment rule, and the Supreme Court's decision in Peña-Rodriguez v. Colorado establishing an exception to the rule. Part III discusses the Supreme Court's recent ruling in Bostock v. Clayton County and its implications for how the Supreme Court should address discrimination, particularly from an intersectional perspective. Finally, Part IV details the constitutional arguments supporting an exception to the jury no-impeachment rule for jury bias against LGBTQ+ individuals and addresses concerns about creating such an exception. This Note is not the first to discuss this issue and its impact on the LGBTQ+ community, but it makes two important contributions: first, it applies the Bostock ruling to this specific area of law; second, it more thoroughly discusses and emphasizes an intersectional approach to this area of constitutional jurisprudence. is especially important to have this conversation in a post-Dobbs world, where criminalization of particular conduct, including abortion and, potentially, private, consensual homosexual sexual activity, could increase the number of LGBTQ+ criminal defendants. Stories such as Charles Rhines's must continue to be shared. No more LGBTQ+ individuals should lose their liberty--or their lives--because of who they are or who they love.

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Granting protection against LGBTQ+ bias in jury deliberations is crucial to advancing LGBTQ+ equality inside and outside the courtroom. Research has shown that advancement of legal protections for LGBTQ+ individuals can affect social norms and could lead to more positive public attitudes toward LGBTQ+ individuals. If we do not take further steps to eliminate LGBTQ+ bias--and the other types of bias that accompany it--from the criminal justice system, LGBTQ+ individuals will continue to be perceived as second-class citizens and be stripped of their dignity. This is not a minor issue: it can be a life or death for some LGBTQ+ individuals. And as long as jurors can still use LGBTQ+ bias to make their decisions and can hide that bias within the “black box,” we cannot claim that the jury system is fully “a fundamental safeguard of individual liberty.”

University School of Law, J.D. expected 2023; University of South Dakota, B.A. 2020.