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Queer on Death Row
In
Murder Cases, Being Gay Can Seal a Defendant's Fate
You may never have heard
of Calvin Burdine, but his case should be familiar.
Burdine is the Texas
death-row inmate whose lawyer allegedly fell asleep
during his trial. (The
lawyer claimed he was merely concentrating.) The
story surfaced during
last year's presidential campaign as a stunning
reminder of why Texas
is known as the execution capital of the free world.
The fact that Burdine's
trial took only 13 hours did not seem unusual.
But a federal court found
the evidence of his attorney's naps disturbing
enough to grant Burdine
a stay of execution so his case could be
reviewed. It is still
pending.
Yet, another aspect of
Burdine's appeal has gone unaddressed. His gayness
was used by the state
in ways that may have marked him for death.
Jurors - several of whom
admitted animus toward gays-heard the prosecutor
say during closing arguments
that "sending a homosexual to the
penitentiary certainly
isn't a very bad punishment for a homosexual."
Burdine's lawyer did
not object, but then, he had no problem calling the
codefendant in the case
a "tush hog." He didn't object when the
prosecutor described
Burdine's "homosexual life" as "voluntary." Making
that point was an effective
way to counter any sympathy that might arise
from testimony that Burdine
had been raped as a child by his father, a
truck driver who took
him along on runs.
Burdine's victim, too,
had been a dark father figure. He took Burdine in
only on the condition
that he turn over his salary. Burdine testified that
when his earnings didn't
cover his rent, the benefactor insisted he hustle.
When he refused, Burdine
contends, he was beaten by the victim's friends.
The result was murder
in the commission of a robbery-a capital crime in
many states, but one
that doesn't necessarily lead to death row. Indeed,
only 1.2 % of murder
cases end in death sentences. Executing someone
requires a separate proceeding
in which aggravating factors are weighed
against mitigating ones.
When the defendant is gay, sexuality can become
one of those aggravating
factors-with fatal consequences.
In Burdine's case, the
jurors were urged to order his execution by a
prosecutor who told them
that sending this man to prison would be like
setting a kid loose in
a candy store.
* * *
Calvin Burdine is not
the only queer on death row. In the past few years,
5 capital cases involving
gay or lesbian defendants have raised charges
that homophobia played
a role in sentencing. But no one knows how many
queers await execution
in America. Though extensive data exist on the
race, age, and gender
of such inmates, there are few statistics about
their sexuality. No one
knows how often gayness is raised by prosecutors
as a snide implication,
an unfounded assertion, or a fact that may or may
not be relevant to the
case. But it comes up with such frequency and in
such predictable ways
that the allegations of antigay bias cannot be
dismissed.
There are high barriers
against injecting race into a trial, and rape-
shield laws that prohibit
introducing a victim's prior sexual history.
But no such restrictions
exist when it comes to homosexuality. "The
courts are not there
yet, especially in capital cases," says Richard
Dieter, executive director
of the Death Penalty Information Center. As
Burdine's trial illustrates,
the rules against statements that might
inflame a jury are not
necessarily enforced when the defendant is gay.
Ambitious prosecutors
are often free to play to stereotypical beliefs
about homosexuals. And
they have reason to single out gay defendants when
deciding which cases
might convince a jury toopt for execution.
After all, a death sentence
is never mandatory. No matter how heinous the
crime, a jury can choose
to spare the murderer's life. "It's all about
emotion," says Dieter.
"There's no legal formula for who gets the death
penalty. And anyone who
seems outside the bounds of what's acceptable is
more likely to end up
being executed." Race, class, and reduced mental
capacity all play a major
role in capital punishment. The queer defendants
in the following cases
also fit into one or more of those categories.
Their sexuality was hardly
the only factor in their fate. But in each
case, it was used in
ways that played to the most negative assumptions
about gay people. And
in the God-fearing counties where these trials took
place, their gayness
may have sealed their fate.
* * *
Sometimes, the mere mention
of homosexuality is enough to spell death.
That's what activists
say happened to Stanley Lingar, who was executed in
Missouri last month for
the murder of a young man he and a friend had
picked up. According
to the friend, who pled guilty to second degree
murder (and served 6
years), they forced their victim to undress and
demanded that he masturbate.
When he failed to perform, Lingar shot him,
beat him, and ran him
over twice. The friend was the only witness to the
crime, but the jury bought
his testimony, and in the penalty phase, they
sentenced Lingar to die.
This second verdict followed
a startling piece of evidence that the
prosecutor had abruptly
introduced. It was something even the defense was
unaware of. Lingar and
his friend had been lovers. But what did that
have to do with the case?
The prosecutor maintained it would help explain
Lingar's motive - though
he never made that point to the jury. No matter.
The prosecutor had convinced
the judge that Lingar's sexuality spoke to
his character-and in
Missouri a "depraved mind" is an aggravating factor.
Lingar's appeal was partly
successful. The court ruled that discussing his
homosexuality would have
been unconstitutional if it had influenced the
jury. But the court also
concluded that it had not. Missouri's attorney
general called the charge
of bias "absurd."
In fact, 12 % of jurors
say they could not be fair to a gay defendant,
according to a survey
by the National Law Journal. This suggests that
homophobia will likely
be present on any jury, not to mention one in rural
Missouri. Yet because
the prosecution chose to keep Lingar's sexuality a
secret until the last
minute, the defense had no way to deal with it, or
even to poll the jury
about homophobia. Situations like this are why
activists urge defense
lawyers to be proactive when their clients are gay.
Yet in places like Missouri,
attorneys will often pretend the issue isn't
there-until it's too
late.
* * *
Wanda Jean Allen's sexuality
was never far from the surface of her case.
She had killed her female
lover in front of a police station; there was no
disputing that. The issue
was motive, and the defense demonstrated that
Allen and her lover had
a tumultuous, violent relationship requiring
frequent interventions
by the police. At her arrest, Allen bore scratches
on her face, allegedly
from being assaulted by her lover with a rake. This
was a crime of passion,
the defense argued, and in such cases the death
penalty is rarely invoked.
But Allen had several
strikes against her. For one thing, she was black and
poor. (Her lawyer was
paid only $800.) For another, she had killed before,
albeit in a case so ambiguous
that she was allowed to plead guilty to
manslaughter and received
the minimum sentence of four years. A prior
homicide can be grounds
for death. But according to the Death Penalty
Information Center, only
8.4 % of inmates awaiting execution have
previous murder convictions.
What made Allen's crime so shocking that she
became the first woman
put to death in the state of Oklahoma?
Possibly it was the prosecution's
assertion that Allen "wore the pants in
the family." Spurred
on by testimony from the victim's mother, the state
claimed that Allen was
the man in the relationship, noting that she even
liked to spell her middle
name G-E-N-E, in the masculine way. The
implication that Allen
dominated her lover overwhelmed the evidence that
both women had abused
each other. And it raised the specter of the killer
dyke that often haunts
female defendants in murder cases. In the
documentary Perverted
Justice, CUNY law professor Ruthann Robson
estimates that 40 % of
women accused of murder must contend with "some
implication of lesbianism."
In capital cases, the
prosecution aims to convince the jury that the
defendant is inhuman.
It's harder to do that when a woman is in the dock.
"Before we can dehumanize
her, we have to defeminize her," says Victor
Streib, who has studied
lesbians on death row. It's easier to kill a
masculine woman, especially
if she is what Streib calls "a tough
customer."
Ana Cardona was hardly
that. She was frail and feminine, according to her
defense. Cardona claimed
it was her domineering female lover who had
killed her child. But
the strategy backfired: Her lover got 40 years
while Cardona got sentenced
to death. After all, she was the child's
mother - or "lesbian
mother," as the prosecution called her. She was also
accused of being sadistic
enough to have beaten and starved the child.
But the image of the
killer dyke gave her culpability added weight. As
Streib notes: "The death
penalty is fairly rare for mothers who kill
their children." Susan
Smith's life was spared, though she had watched
her children drown in
the car she rolled into a lake. But Smith was
not a "lesbian mother."
* * *
Gay defendants, too, must
deal with the image of the predatory queer,
especially when the accomplice
is a younger man. Even Calvin Burdine's
dozing lawyer knew enough
to base his defense on allegations that the
victim was a "middle
aged, king homosexual" who had victimized young
boys.
Gregory Scott Dickens
was 26 when he was charged with killing a couple
outside Yuma, Arizona.
He had been traveling with a 16-year-old who,
according to Dickens's
current attorney, was the most important person in
his life. The youth admitted
to firing the gun, but he testified that
Dickens had given him
the weapon and put him up to the crime. When the
defense moved to present
evidence that this teen fit the profile of a
violent and impulsive
liar, Judge Tom Cole intervened. If the defense took
that route, said the
judge, he might allow the prosecutor to raise an
issue that had been kept
from the jury: Dickens and his young friend were
lovers. Then the nature
of Dickens's 2 previous convictions-for fondling
minors-might also come
out. "The state could say that in this homosexual
relationship, the older
partner had control over the kid," says Dickens's
current attorney. So
the defense backed down.
This time it wasn't the
prosecutor's tactics but the judge's behavior that
figured in the appeal.
Court papers filed on Dickens's behalf claim that
Judge Cole had reacted
with rage to his own son's homosexuality. He had
written a letter expressing
the hope that his son would "die in prison like
all the rest of your
faggot friends." Cole denies writing the letter,
but he would not comment
on the allegation that he believes his son was
turned gay by unscrupulous
friends. "It's insignificant," Cole says.
But the defense contends
that such an attitude could have induced Cole to
allow homosexuality into
the trial-especially when the accused might appear
to be a sexual predator.
In Arizona, the judge decides when a killer should
be sentenced to death,
and though Dickens was acquitted of premeditated
murder, Cole found other
grounds to condemn him. Dickens had committed a
multiple murder that
resulted in pecuniary gain. But so had his young
friend, whose life was
spared.
* * *
Assume that all these
defendants are guilty. Grant that their sexuality may
have some relevance to
the case. The question, then, is not whether the
subject should have come
up but how it was used. Homosexuality was seen as
a marker of perversion
or pathology, the sign of a murderous bent. In these
cases, the pretense of
tolerance is ripped away, and one can see monsters
from the homophobic id.
But one can also recognize the biases that underlie
ordinary life.
"Anyone can end up in
court," notes Ruth E. Harlow, legal director of the
Lambda Legal Defense
and Education Fund. "And any time a gay man or lesbian
goes into court, they
have to be afraid that sexual orientation may play a
role in their case."
It might come up in family court, when the judge
assumes a gay parent
would expose a child to sexual activity. It could
influence a prosecutor's
decision about who gets to plea bargain and who
must stand trial. It
could even determine who is charged with a crime
in the 1st place. "We
tend to think of gay people as crime victims, not
prisoners," says Bill
Dobbs of Queer Watch. "But in fact, the criminal
justice system touches
us in many ways."
In New York, court clerks
are required for monitoring purposes to list the
sexual orientation of
each defendant in a capital case. But the law does
not address the way homosexuality
can be used at trial. "I don't think
there is any particular
protection," says Pauline Toole, spokesperson for
New York's Capital Defender
Office. But at least homosexuality is not a
crime in this state.
In the South and West, where sodomy laws are common,
the presumption of innocence
for gay people is compromised to begin with.
And when they are charged
with murder, their sexuality is "like a powder
keg," says Dobbs. "It
can easily cause a jury to light the match."
Calvin Burdine knows how
homophobia was used against him: from the jurors'
pretrial comments to
the prosecutor's closing remarks. "I did hear it,"
Burdine told the Voice
from his cell on death row. "But it just kind of
went over my head. I
was scared to death."
(source: Village
Voice)
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