Rhines v Young Motion for Leave to File Brief and Brief of Amicus Curiae

    No. 18-8029

In The

>ttpreme C o u r t  of tlje Sirateti i§>tate3

Charles Rhines,

V.

D a r in  Y o u n g

Petitioner,

Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AND 
BRIEF OF AMICUS CURIAE 

NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC. IN SUPPORT OF PETITIONER

SherrilynA .Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., 5th Floor 
New York, NY 10006

March 25, 2019

D a n ie l  S. H a r a w a * 
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , I n c . 
700 14th St. NW, Suite 600 
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

* Counsel of Record

Counsel for Amicus Curiae

mailto:dharawa@naacpldf.org


In The

Suprem e C o u rt of tfje ®ratefc> States!

No. 18-8029

Charles Rhines,

v.

Darin Young

Petitioner,

Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF OF 
AMICUS CURIAE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. IN SUPPORT OF 

PETITIONER

The NAACP Legal Defense & Educational Fund, 
Inc. (LDF) respectfully moves under Supreme Court 
Rule 37.2(b) for leave to file a brief as amicus curiae 
in support of Petitioner Charles Rhines.

All parties were timely notified of LDF’s intent to 
file this amicus brief. Petitioner has consented to the 
filing of the brief. Respondent refused to consent. LDF 
thus files this motion seeking leave to file the amicus 
brief.



2

This case presents an issue of paramount 
importance to LDF—whether a court can review a 
death sentence when presented with evidence that 
the jury may have imposed the death sentence for 
discriminatory reasons. Specifically, whether the no­
impeachment rule should give way in the face of 
compelling evidence that anti-gay bias infected the 
jury’s verdict.

Since its founding by Thurgood Marshall, LDF 
has fought against the arbitrary and discriminatory 
imposition of the death penalty. Charles Rhines has 
presented evidence his death sentence was imposed 
in part for discriminatory reasons—that some jurors 
sentenced Mr. Rhines to die in part because he is gay. 
Yet no court has reviewed his claim on the merits. 
This case presents the kind of egregious arbitrariness 
in capital sentencing that LDF has consistently 
fought against. LDF seeks to file this brief to ensure 
that courts consider the compelling evidence that Mr. 
Rhines’ capital sentence is inconsistent with both the 
antidiscrimination principle of the Fourteenth 
Amendment and Eighth Amendment’s requirement of 
heightened reliability in death penalty cases.

Respondent argues that while the Court has held 
that the no-impeachment rule must give way in the 
face of evidence of racial bias infecting a jury’s verdict, 
the same should not be true for claims of anti-gay bias 
because race is “unique.” LDF also seeks to file this 
brief because it has led the fight against racial 
discrimination through legal advocacy generally, and 
against the discriminatory imposition of the death



3

penalty specifically. LDF has a unique voice in 
arguing that just as the Constitution does not permit 
a person to be sentenced to death because of his race, 
it should not permit a person to be sentenced to death 
because of his sexual orientation.

For these reasons, LDF respectfully asks the 
Court to grant the motion.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006

Daniel S. Harawa* 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

* Counsel of Record

March 25, 2019
Counsel for Amicus Curiae

mailto:dharawa@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................ ii

INTEREST OF AMICUS CURIAE..............................1

SUMMARY OF ARGUMENT......................................3

ARGUMENT.................................................................. 5

I. CLAIMS THAT ANTI-GAY BIAS 
AFFECETED A JURY VERDICT 
SHOULD BE EXCEPTED FROM THE 
NO-IMPEACHMENT RULE.................................5

PAGE

CONCLUSION 17



11

TABLE OF AUTHORITIES

PAGE(S)

CASES

Able v. United States,
968 F. Supp. 850 (E.D.N.Y. 1997)....................9-10

Alexander v. Louisiana,
405 U.S. 625 (1972).................................................. 2

Banks v. Dretke,
540 U.S. 668(2004).................................................. 2

Bassett v. Snyder,
59 F. Supp. 3d 837 (E.D. Mich. 2014).................10

Batson v. Kentucky,
476 U.S. 79 (1986)............................................. 2, 11

Blakely v. Washington,
542 U.S. 296 (2004)................................................ 11

Bowers v. Hardwick,
478 U.S. 186 (1986)................................................ 10

Buck v. Davis,
137 S. Ct. 759 (2017)..................................... passim

Caldwell v. Mississippi,
427 U.S. 320 (1985).................  9

Campaign for S. Equality v. Bryant,
64 F. Supp. 3d 906 (S.D. Miss. 2014) 10



Ill

Carter u. Jury Commission of 
Greene County,
396 U.S. 320 (1970).................................................. 2

Coker v. Georgia,
433 U.S. 584 (1977)................................................. 2

Eddings u. Oklahoma,
455 U.S. 104 (1982).................................................. 9

Edmonson v. Leesville Concrete Co.,
500 U.S. 614(1991).................................................. 2

Furman v. Georgia,
408 U.S. 238 (1972).................................................. 2

Georgia v. McCollum,
505 U.S. 42 (1992)....................................................2

Ham v. South Carolina,
409 U.S. 524 (1973).................................................. 2

Johnson v. California,
543 U.S. 499 (2005).................................................. 2

Kerrigan v. Comm’r of Pub. Health,
957 A.2d 407 (Conn. 2008)......................................4

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



IV

Lawrence v. Texas,
539 U.S. 558 (2003)................................................. 8

Masterpiece Cakeshop, Ltd. v. Colo. Civil 
Rights Comm’n,
138 S. Ct. 1719(2018).......................................3, 11

McCleskey v. Kemp,
481 U.S. 279 (1987).................................................2

McDonald v. Pless,
238 U.S. 264 (1915).................................................. 7

Miller-El v. Cockrell,
537 U.S. 322 (2003).................................................. 2

Obergefell v. Hodges,
135 S. Ct. 2584 (2015)..................................3, 8, 14

Parsons v. Bedford, Breedlove & Robeson,
28 U.S. (3 Pet.) 433 (1830) (Story, J .)................. 11

Peha-Rodriguez v. Colorado,
137 S. Ct. 855 (2017)..................................... passim

Powers v. Ohio,
499 U.S (1991)................................  11

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



V

Romer v. Evans,
517 U.S. 620 (1996).............................................3, 8

Roper v. Simmons,
543 U.S. 551 (2005)..................................................2

Rose v. Mitchell,
443 U.S. 545 (1979)..............................................  13

Swain v. Alabama,
380 U.S. 202 (1965).................................................2

Tanner v. United States,
483 U.S. (1987)........................................................7

Turner v. Fouche,
396 U.S. 346 (1970)................................................. 2

United States v. Windsor,
133 S. Ct. 2675 (2013)............................................. 3

Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa. 2014).....................9

Windsor v. United States,
699 F.3d 169 (2d Cir. 2012)..................................10

Woodson v. North Carolina,
428 U.S. 280 (1976)...............................................15

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



VI

TABLE OF AUTHORITIES
(CONTINUED)

STATUTE

Don’t Ask, Don’t Tell Repeal Act of 2010, 
Pub. L. No. 111-322, 124 Stat. 3516 
(Dec. 22, 2010).......................................

OTHER AUTHORITIES

Joan W. Howarth, The Right of Gay 
Prisoners: A Challenge to Protective 
Custody, 53 S. Cal. Rev. 1225 (1979-80)

Terry A. Kupers, Role of Misogyny and 
Homophobia in Prison Sexual Abuse,
18 UCLA Women’s L.J. 107 (2010).......

PAGE(S)

........... 10

PAGE(S)

15

15



In The

Suprem e C o u rt of tfje Hrateti States;

No. 18-8029

Charles Rhines,

V.
Petitioner,

Darin Young

Respondent.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Eighth Circuit

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. IN 

SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense & Educational Fund, 
Inc. (“LDF”) is the nation’s first and foremost civil 
rights law organization. Through litigation, advocacy,

1 Counsel for amicus curiae authored this brief in its entirety and 
no party or their counsel, nor any other person or entity other 
than amicus or their counsel, made a monetary contribution 
intended to fund its preparation or submission. All parties were 
timely notified of proposed amicus’s intent to file this amicus 
brief. Petitioner consented to the filing of the brief. Respondent 
declined consent. Proposed amicus thus has moved for leave to 
file this amicus brief.



2

public education, and outreach, LDF strives to secure 
equal justice under the law for all Americans, and to 
break down barriers that prevent African Americans 
from realizing their basic civil and human rights.

LDF has a history of challenging the 
unconstitutional imposition of the death penalty. LDF 
has served as counsel of record or filed amicus briefs 
in numerous capital cases, including: Furman v. 
Georgia, 408 U.S. 238 (1972); Coker v. Georgia, 433 
U.S. 584 (1977); McCleskey v. Kemp, 481 U.S. 279 
(1987); Banks v. Dretke, 540 U.S. 668 (2004); Roper v. 
Simmons, 543 U.S. 551 (2005); Buck v. Davis, 137 S. 
Ct. 759 (2017), and Peha-Rodriguez v. Colorado, 137 
S. Ct. 855 (2017). LDF has served as counsel of record 
in cases challenging unconstitutional bias in the jury 
system in Swain u. Alabama, 380 U.S. 202 (1965), 
Alexander v. Louisiana, 405 U.S. 625 (1972), and 
Ham v. South Carolina, 409 U.S. 524 (1973); 
pioneered the affirmative use of civil actions to end 
jury discrimination in Carter v. Jury Commission of 
Greene County, 396 U.S. 320 (1970), and Turner v. 
Fouche, 396 U.S. 346 (1970); and appeared as amicus 
curiae in cases involving the discriminatory use of 
race in peremptory challenges, including Johnson v. 
California, 543 U.S. 499 (2005), Miller-El v. Cockrell, 
537 U.S. 322 (2003), Georgia v. McCollum, 505 U.S. 
42 (1992), Edmonson v. Leesville Concrete Co., 500 
U.S. 614 (1991), and Batson v. Kentucky, 476 U.S. 79 
(1986) (overruling Swain).



3

LDF also has a longstanding history of advocating 
for the rights of lesbian, gay, bisexual, transgender, 
and queer (LGBTQ) individuals. See, e.g., Masterpiece 
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 
S. Ct. 1719 (2018); Obergefell v. Hodges, 135 S. Ct. 
2584 (2015); United States v. Windsor, 133 S. Ct. 2675 
(2013); Romer v. Evans, 517 U.S. 620 (1996).

Consistent with its opposition to the arbitrary or 
discriminatory imposition of the death penalty, and 
with its opposition more generally to discrimination 
of all forms, LDF submits this amicus brief in support 
of Charles Rhines’ petition for writ of certiorari.

SUMMARY OF ARGUMENT

Peha-Rodriguez v. Colorado held “that where a 
juror makes a clear statement that indicates he or she 
relied on racial stereotypes or animus to convict a 
criminal defendant, the Sixth Amendment requires 
that the no-impeachment rule give way in order to 
permit the trial court to consider the evidence of the 
juror’s statement and any resulting denial of the juiy 
trial guarantee.” 137 S. Ct. 855, 869 (2017). South 
Dakota argues against a similar exception to the no­
impeachment rule for claims of “sexual orientation 
bias.” Opp’n at 23-29. The State argues that Peha- 
Rodriguez was concerned with the “‘distinct’ role race 
has historically played in thwarting aspirations of 
equality in America.” Id. at 26. And, argues the State, 
“[sjexual orientation does not implicate the same 
unique, historical, constitutional and institutional 
concerns as race.” Id. (quotation marks omitted).



4

LDF is well aware of the unique role that race has 
played in “thwarting aspirations of equality in 
America.” Since its founding by Thurgood Marshall, 
LDF has led the fight for racial equality. That said, 
our country’s uniquely terrible history of racial 
discrimination does not obviate its sordid history of 
anti-gay discrimination. “For centuries, the 
prevailing attitude towards gay persons has been one 
of strong disapproval, frequent ostracism, social and 
legal discrimination, and at times ferocious 
punishment.” Kerrigan v. Comm’r of Pub. Health, 957 
A.2d 407, 432 (Conn. 2008) (quotation marks 
omitted). And although the histories of oppression 
endured by different minorities in America have 
varied, the “basic premise of our criminal justice 
system” must remain the same: “Our law punishes 
people for what they do, not who they are.” Buck v. 
Davis, 137 S. Ct. 759, 778 (2017).

Just as the Constitution does not permit a person 
to be sentenced to die because of his race, it should not 
permit a person to be sentenced to die because of his 
sexual orientation. And here, in light of the sworn 
declarations showing that at least some jurors 
thought that because Mr. Rhines is “a homosexual . .
. he shouldn’t be able to spend his life with men in 
prison,” and that because Mr. Rhines is gay, they 
would “be sending him where he wants to go if [they] 
voted for [life imprisonment],” Pet. at 3, there is 
ample evidence that Mr. Rhines was sentenced to die 
in part because of his sexual orientation.



5

This is untenable and unconstitutional. LDF urges 
the Court to grant certiorari.

ARGUMENT

I. CLAIMS THAT ANTI-GAY BIAS AFFECTED 
A JURY VERDICT SHOULD BE EXCEPTED 
FROM THE NO-IMPEACHMENT RULE.

In Peiia-Rodriguez, this Court held that the “no­
impeachment rule” must give way “when, after the 
jury is discharged, a juror comes forward with 
compelling evidence that another juror made clear 
and explicit statements indicating that racial animus 
was a significant motivating factor in his or her vote 
to convict.” 137 S. Ct. at 861. The evidence the Pena- 
Rodriguez Court found compelling was affidavits by 
jurors asserting that during deliberations, another 
juror said, “Mexican men had a bravado that caused 
them to believe they could do whatever they wanted 
with women.” Id. at 862. That juror also said that “in 
his experience, ‘nine times out of ten Mexican men 
were guilty of being aggressive toward women and 
young girls.’” Id. The juror said he believed Mr. Peiia- 
Rodriguez “did it because he’s Mexican and Mexican 
men take whatever they want.” Id. And the juror told 
the rest of the jury that he did not find Mr. Pefia- 
Rodriguez’s alibi witness credible because he was “‘an 
illegal.’” Id.

This Court called the juror’s statements “egregious 
and unmistakable in their reliance on racial bias.” Id. 
at 870. The Court found the statements particularly 
troubling because they showed the juror “deploy [ed] a



6

dangerous racial stereotype to conclude [Mr. Pena- 
Rodriguez] was guilty” and then “encouraged other 
jurors to join him in convicting on that basis.” Id.

The problem the Pena-Rodriguez Court faced was 
that Colorado, like every state, had a rule “generally 
prohibiting] a juror from testifying as to any 
statement made during deliberations . . . ” Id. at 862. 
The Court thus had to “decide whether the 
Constitution requires an exception to the no­
impeachment rule when a juror’s statements indicate 
that racial animus was a significant motivating factor 
in his or her finding of guilt.” Id. at 867.

The Court started its analysis by reiterating that 
the “central purpose of the Fourteenth Amendment 
was to eliminate racial discrimination emanating 
from official sources in the States.” Id. (quotation 
marks omitted). And by the time of the Fourteenth 
Amendment’s ratification, it was “clear that racial 
discrimination in the jury system posed a particular 
threat both to the promise of the Amendment and to 
the integrity of the jury trial.” Id. Thus, “[tjime and 
again,” the Court “has been called upon to enforce the 
Constitution’s guarantee against state-sponsored 
racial discrimination in the jury system.” Id.

Pena-Rodriguez stood “at the intersection of the 
Court’s decisions endorsing the no-impeachment rule 
and its decisions seeking to eliminate racial bias in 
the jury system.” Id. at 868. In finding that a claim of 
racial bias trumps the no-impeachment rule, the 
Court noted that a racial bias claim “differs in critical



7

ways” from the cases where the Court had upheld the 
no-impeachment rule: McDonald v. Pless, 238 U.S. 
264 (1915), where it was alleged the jury reached an 
improper compromise verdict; and Tanner v. United 
States, 483 U.S. (1987), where it was alleged some 
jurors were under the influence during trial. The 
Court explained that while the jurors’ behavior in 
McDonald and Tanner was “troubling and 
unacceptable,” they involved “anomalous behavior 
from a single jury—or juror—gone off course.” Id. at 
868. “The same cannot be said about racial bias,” 
which “implicates unique historical, constitutional, 
and institutional concerns,” which “if left 
unaddressed, would risk systemic injury to the 
administration of justice.” Id. A racial bias exception 
to the no-impeachment rule is therefore “necessary to 
prevent a systemic loss of confidence in jury verdicts, 
a confidence that is a central premise of the Sixth 
Amendment trial right.” Id. at 869.

A racial bias claim is also “distinct in a pragmatic 
sense,” the Court continued, because while there are 
“safeguards” to protect against most types of juror 
misbehavior, “[t]he stigma that attends racial basis 
may make it difficult to report inappropriate 
statements during the course of juror deliberations.” 
Id. A juror may be hesitant to reveal that a fellow 
juror is a “bigot.” Id.

The question for this Court here is whether there 
should be an anti-gay bias exception to the no­
impeachment rule for capital cases. In arguing there 
should not be one, South Dakota focuses on Pena-



8

Rodriguez's recognition that racial discrimination in 
the jury system “implicate[s] unique historical, 
constitutional, and institutional concerns.” Opp’n at 
26. The State argues anti-gay discrimination does not 
implicate the same concerns. See id. at 27-29.

There is no disputing that racial discrimination in 
the jury occupies a unique constitutional, historical, 
and institutional space in our country. But a closer 
look at the reasons Pena-Rodriguez gave for crafting 
a racial bias exception to the no-impeachment rule 
shows that overt anti-gay bias claims should be 
excepted from the no-impeachment rule too— 
especially when, as here, the case involves a sentence 
of death.

Constitutional Concerns. It is true, as Pena- 
Rodriguez said, that the Fourteenth Amendment was 
designed “to eliminate racial discrimination 
emanating from official sources in the States.” 137 S. 
Ct. at 867. Even so, this Court has made clear that 
the Fourteenth Amendment also protects against 
sexual orientation discrimination. See, e.g., Romer v. 
Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 
U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 
(2015). The Court recently declared that the 
Fourteenth Amendment’s “principles of liberty and 
equality” both “define and protect the rights of gays 
and lesbians.” Obergefell, 135 S. Ct. at 2604. Given 
that the Fourteenth Amendment protects against 
anti-gay discrimination, there are constitutional 
concerns when overt anti-gay bias infects juiy 
deliberations.



9

Further, because this is a capital case, the Eighth 
Amendment demands a “heightened need for 
reliability in the determination that death is the 
appropriate punishment.” Caldwell u. Mississippi, 
472 U.S. 320, 323 (1985) (quotation marks omitted). 
“Because sentences of death are qualitatively 
different,” the Eighth Amendment requires that 
courts ensure “that the sentence was not imposed out 
of whim, passion, prejudice, or mistake.” Eddings v. 
Oklahoma, 455 U.S. 104, 117-18 (1982) (quotation 
marks omitted). Here, there is evidence that the jury 
sentenced Mr. Rhines to die due to anti-gay bias. This 
is the exact type of arbitrariness the Eighth 
Amendment forbids.

Historical Concerns. It is also true, as Peha- 
Rodriguez noted, that the country’s history of racial 
discrimination is “unique.” 137 S. Ct. at 868. Even so, 
gay people have also faced a long history of 
discrimination, which until recently, was sanctioned 
by every branch of Government. For example, “[i]n 
1953, President Eisenhower issued an executive order 
banning the employment” of gay people, which also 
required private contractors to “search out” and 
“terminate” gay employees. Whitewood v. Wolf, 992 F. 
Supp. 2d 410, 427 (M.D. Pa. 2014). Gay people have 
been banned from military service on the theory that 
they were “unfit for service because they had a 
‘personality disorder’ or a ‘mental illness’” Able v. 
United States, 968 F. Supp. 850, 855 (E.D.N.Y. 1997)



10

(citations omitted).2 Up until 1990, federal law 
prohibited gay noncitizens from entering the country 
because “the Immigration and Nationality Act of 1952 
labeled gay and lesbian people as mentally ill.” 
Bassett u. Snyder, 59 F. Supp. 3d 837, 849 (E.D. Mich. 
2014). And “[p]erhaps the most telling proof of animus 
and discrimination against [gay people] is that, for 
many years and in many states, homosexual conduct 
was criminal.” Windsor u. United States, 699 F.3d 
169, 182 (2d Cir. 2012). This Court condoned the 
criminalization of gay intimacy just 33 years ago. See 
Bowers u. Hardwick, 478 U.S. 186 (1986). And the 
consequences for violating these laws were barbarous: 
“It was common for state laws to call for sterilization 
or castration . . . for homosexual behavior.” Campaign 
for S. Equality v. Bryant, 64 F. Supp. 3d 906, 930 (S.D. 
Miss. 2014) (quotation marks omitted). Thus, while 
different from its history of racial discrimination, 
America has a long and horrible history of anti-gay 
discrimination, steeped in fear, odious stereotypes 
and inhumane treatment.

Institutional Concerns. And while it is true that, 
as Pena-Rodriguez reminded, the Court has “time and 
again” had to enforce the constitutional guarantee 
against racial discrimination in the jury system, it is 
important to recall one of the principal reasons why 
this Court has been quick to act: the right to an 
impartial jury is a cornerstone of our democracy.

2 It was not until 2010 that gay people were allowed to serve 
openly in the military. See Don’t Ask, Don't Tell Repeal Act of 
2010, Pub. L. No. 111-322, 124 Stat. 3516 (Dec. 22, 2010).



11

“Just as suffrage ensures the people’s ultimate control 
in the legislative and executive branches, [the] juiy 
trial is meant to ensure their control in the judiciary.” 
Blakely v. Washington, 542 U.S. 296, 306 (2004). 
Indeed, “with the exception of voting, for most 
citizens, the honor and privilege of jury duty is their 
most significant opportunity to participate in the 
democratic process.” Powers u. Ohio, 499 U.S. 400, 
407 (1991). The impartial jury is a critical bulwark 
“against the arbitrary exercise of power,” Batson u. 
Kentucky, U.S. 79, 86 (1986), that “guards the rights 
of the parties” and “ensures continued acceptance of 
the laws by all of the people.” Powers, 499 U.S. at 407. 
Simply, the right to an impartial jury is “justly dear 
to the American people”; this Court must therefore 
guard “every encroachment upon it . . . with great 
jealousy.” Parsons v. Bedford, Breedlove & Robeson, 
28 U.S. (3 Pet.) 433, 446 (1830) (Story, J.). If the right 
to an impartial jury is a cornerstone of democracy, 
that impartiality should extend to a defendant’s 
sexual orientation.

It is only recently that “[o]ur society has come to 
the recognition that gay persons . .. cannot be treated 
as social outcasts as inferior in dignity and worth.” 
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights 
Comm’n, 138 S. Ct. 1719, 1727 (2018). The idea that 
the “Constitution, can, and in some instances must, 
protect [gay people] in the exercise of their civil 
rights” is new to this Court’s jurisprudence. Id. Thus, 
the fact that the Court does not have a long history of 
combating anti-gay discrimination in the jury system



12

should not dissuade the Court from starting that fight 
in this case.

In this context, the similarities between anti-gay 
bias claims and racial bias claims are far more 
important than their differences. Both claims “differ[] 
in critical ways” from the cases in which this Court 
has upheld the no-impeachment rule. A claim that a 
juror’s anti-gay bias influenced his verdict is not an 
example of a juror going “off course” like McDonald— 
where the jury improperly reached a compromise 
verdict, or Tanner—where jurors were drunk and 
high. See Pena-Rodriguez, 137 S. Ct. at 868-69. 
Instead, it is a prejudice that undermines the effort 
“to ensure that our legal system remains capable of 
coming ever closer to the promise of equal treatment 
under the law that is so central to a functioning 
democracy.” Id. at 868.

From a “pragmatic sense,” as the Pena-Rodriguez 
Court reasoned for racial bias claims, it is important 
to except claims of anti-gay bias from the no­
impeachment rule given the “stigma” that attends 
anti-gay bias, which “may make it difficult for a juror 
to report inappropriate statements during the course 
of juror deliberations.” Id. at 869. A juror may not feel 
comfortable reporting that a fellow juror was 
influenced by her anti-gay bias until after the fact, 
because as Pena-Rodriguez recognized, it is one thing 
for a juror to report another juror behaving badly; “[i]t 
is quite another to call her a bigot.” Id.



13

At bottom, verdicts infected by anti-gay bias, like 
verdicts infected by racial bias, “cast serious doubt on 
the fairness and impartiality of the jury’s 
deliberations and resulting verdict.” Id. This is 
especially true in capital cases. So just as the no­
impeachment rule must give way when there is 
evidence tending “to show that racial animus was a 
significant motivating factor in the juror’ŝ  vote to 
convict,” id. the no-impeachment rule should give way 
in the face of evidence tending to show that anti-gay 
bias was the reason why a juror voted for death. A 
contrary holding would severely undermine “the law 
as an institution,” the “community at large,” and “the 
democratic ideal reflected in the processes of our 
courts.” Rose v. Mitchell, 443 U.S. 545, 556 (1979). 
There is a “sound basis” to treat anti-gay bias “with 
added precaution.” Peha-Rodriguez, 137 S. Ct. at 869.

The notion that, for capital cases, there should be 
an exception to the no-impeachment rule when a 
petitioner presents a credible claim that his death 
sentence was infected by anti-gay bias should be 
uncontroversial. This Court has recognized that the 
“basic premise of our criminal justice system” is that 
“[o]ur law punishes people for what they do, not who 
they are.” Buck, 137 S. Ct. at 778 (emphasis added). 
As Buck explained: “[dispensing punishment on the 
basis of an immutable characteristic flatly 
contravenes this guiding principle.” Id. Even though 
Buck declared this in the context of a claim that the 
petitioner’s race may have influenced his death 
sentence, it applies to a claim centering on a



14

petitioner’s sexual orientation given the Court’s 
recognition that sexual orientation is immutable. See 
Obergefell, 135 S. Ct. at 2594.

Turning to the facts here, a refusal to hear the 
merits of Mr. Rhines’ anti-gay bias claim would run a 
similar risk of injustice that prompted the Court to 
act in Buck and Pena-Rodriguez. In both cases, this 
Court was concerned with the fact that a jury may 
have handed down a death sentence based on 
“powerful” and “dangerous” racial stereotypes. Buck, 
137 S. Ct. at 776 (the “powerful racial stereotype— 
that of black men as violence prone” (quotation marks 
omitted)); Peha-Rodriguez, 137 S. Ct. at 862, 870 (the 
“dangerous racial stereotype[s]” that “Mexican men” 
are “aggressive” and “physically controlling of 
women” and “illegal[s]” are not credible witnesses). 
The concern of pernicious racial stereotypes 
influencing the verdicts prompted the Court to 
recognize that procedural and evidentiary obstacles 
must yield so the lower courts could rule on the merits 
of the claims.

The Court should recognize that the no­
impeachment rule must yield here, too, given that 
there is a real risk that at least one juror voted for Mr. 
Rhines’ death in part because he is gay, relying on 
powerful and dangerous anti-gay stereotypes. One 
juror declared that the jury knew Mr. Rhines “was a 
homosexual and thought that he shouldn’t be able to 
spend his life with men in prison.” Pet. at 3. A 
declaration from another juror recalled one juror 
commenting “that if [Mr. Rhines] is gay, we’d be



15

sending him where he wants to go if we voted for [life 
imprisonment].” Id. Yet another juror said there was 
“lots of discussion of homosexuality” and there “was a 
lot of disgust.” Id.

The statements are “egregious and unmistakable 
in their reliance on [anti-gay] bias.” Peha-Rodriguez, 
137 S. Ct. at 870. The comments play on the prevalent 
misconception that gay men enjoy prison because it is 
an all-male environment where they can get “sexual 
attention from men.” Terry A. Kupers, Role of 
Misogyny and Homophobia in Prison Sexual Abuse, 
18 UCLA Women’s L.J. 107, 123 (2010). Indeed, this 
stereotype was once so widely believed that official 
jail guidelines called for the “[c]omplete isolation and 
at least segregation [of gay men] from other 
prisoners” as that was “the only method by which [gay 
men] may be rendered harmless within the jail.” Joan 
W. Howarth, The Rights of Gay Prisoners: A 
Challenge to Protective Custody, 53 S. Cal. Rev. 1225, 
1232 (1979-80) (quoting The American Correctional 
Association’s Manual of Correctional Standards for 
Jails).

The fact that Mr. Rhines’ jury may have relied on 
these explicit and egregious anti-gay stereotypes 
when deciding whether he should be sentenced to die 
“poisons public confidence in the judicial process.” 
Buck, 137 S. Ct. at 766. Allowing Mr. Rhines’ death 
sentence to stand would be especially harmful 
considering he received the “ultimate punishment of 
death.” Woodson v. North Carolina, 428 U.S. 280, 304 
(1976). Given the stakes, the constitutional promise



16

of impartiality is paramount. Here, the anti-gay 
statements reflect a “disturbing departure” from the 
basic principle that undergirds our justice system - 
people are punished for what they do and not who 
they are. See Buck, 137 S. Ct. at 766.

The Court should adopt a “constitutional rule” for 
capital cases that anti-gay “bias in the justice system 
must be addressed—including, in some instances, 
after the verdict has been entered.” Pena-Rodriguez, 
137 S. Ct. at 869. This rule “is necessary to prevent a 
systemic loss in confidence in jury verdicts, a 
confidence that is a central premise of the Sixth 
Amendment trial right.” Id.



17

CONCLUSION

For these reasons, the Court should grant Mr. 
Rhines’ petition for certiorari.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006

March 25, 2019

Daniel S. Harawa* 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

* Counsel of Record

Counsel for Amicus Curiae

mailto:dharawa@naacpldf.org