Metro Weekly

Federal appeals court refuses to review gay defendant’s allegations of jurors’ anti-gay bias

At least three jurors made comments indicating "disgust" with Charles Rhines' sexual orientation

Charles Rhines – Photo: South Dakota Department of Corrections.

The 8th U.S Circuit Court of Appeals has refused to hear the appeal of a South Dakota gay prisoner who claims he was sentenced to death because biased jurors thought he’d enjoy life in prison too much due to his sexual orientation. 

The three-judge panel split, with two voting to reject the case, and one voting to grant the application, which would have allowed Charles Rhines and his attorney’s to contest his sentence. 

Rhines, who was convicted in 1993 of fatally stabbing 22-year-old Donnivan Schaeffer during a robbery in Rapid City, S.D., has argued that the anti-gay bias of the jurors, and their bigoted attitudes regarding gay men, deprived him of a fair trial and due process under the Sixth and Fourteenth Amendments.

Rhines’ lawyers are relying on a 2017 case, Peña-Rodriguez v. Colorado, in which the U.S. Supreme Court found that a juror’s bigoted comments about Hispanics in deliberations may have influenced a jury to find a defendant guilty, thereby violating that defendant’s Sixth Amendment rights. They argue that, in applying the standard set forth in Peña-Rodriguez, the courts should take into account whether anti-gay sentiment played a role in Rhines’ conviction.

At trial, the jury heard from witnesses for the prosecution that Rhines was gay and had relationships with other men. While jurors were deciding what Rhines’ punishment for the murder should be, at least three jurors made statements to the effect that Rhines might enjoy spending his life in prison in an all-male environment.

During deliberations, in which they were trying to decide between sentencing Rhines to life in prison without parole or to death, the jury sent a note to the judge asking several probing, and potentially inappropriate questions that rely on anti-gay stereotypes and prejudices. 

The jurors asked the judge whether Rhines, if sentenced to life in prison, would be allowed to mix with the general inmate population, ‘create a group of followers or admirers,” brag about his crime to other inmates, as well as whether he would have a cellmate, and if he was entitled to marry or have conjugal visits. The judge dd not address these questions, and failed to intervene or remind jurors that they are supposed to apply the law based on the facts of the case, rather than personal prejudices. 

Other jurors reported that some of their fellow jurors even expressed “disgust” over Rhines’ sexual orientation. This was despite having sworn under oath during voir dire that they could be fair and free of prejudice, regardless of the personal feelings about homosexuality.

In an amicus brief filed with the 8th Circuit, a group of civil rights and pro-LGBTQ groups, including the American Civil Liberties Union, the ACLU of South Dakota, Lambda Legal, GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, and National LGBT Bar Association, provided a history of the discrimination often faced by members of the LGBTQ community and argued that court should reverse the sentence of death.

“The jury note suggests that at least some members of the jury accepted the notion that life in prison without parole would be fun for a gay person — so much so that they felt it was necessary to impose the death penalty instead,” the amicus brief reads. “In other words, significant evidence suggests that the jury may have sentenced Mr. Rhines to death based not on the facts of his case, but because he is gay.”

Shawn Nolan, one of Rhines’ attorneys, expressed disappointment at the decision but gratitude toward Judge Jane Kelly, the dissenting judge who thought the case should be taken up and reviewed.

“There is compelling new evidence that some of the jurors who sentenced Charles Rhines to death in South Dakota were motivated by anti-gay bias. … The U.S. Supreme Court’s decision in 2017, Peña-Rodriguez v. Colorado, applies to Mr. Rhines’s case and requires that a court review his evidence of anti-gay bias before his execution can proceed. Anti-gay stereotypes and animus should have no role in our criminal justice system and certainly should never be a reason to impose a death sentence.”

The organizations that signed onto the amicus brief in support of Rhines also issued their own statements criticizing the decision.

“Our judicial system has safeguards to prevent bias based on sexual orientation,” Ria Tabacco Mar, a senior staff attorney with the ACLU’s LGBT and HIV Project, said. “Those safeguards failed for Mr. Rhines.”

“Mr. Rhines’s case represents one of the most extreme forms anti-LGBT bias can take. Evidence suggests that he has been on death row for the past 25 years because he is a gay man,” Ethan Rice, an attorney with Lambda Legal’s Fair Courts Project, added. “We are deeply disappointed that the court has chosen not to allow for review of this case when it is clear that Mr. Rhines may have been denied the constitutional right to a fair trial because the jury deliberations included bias.”

John Riley is the local news reporter for Metro Weekly. He can be reached at

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