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Homophobia Claimed in Oklahoma Execution   (Texas Triangle.com )

By Brent Brumley

OKLAHOMA CITY-Jay Wesley Neill was executed by the state of Oklahoma on Thursday, December 12. Activists say his death sentence was tainted by bias and homophobia.

Requests from organizations including Queer Watch, Queer to the Left, and Amnesty International to Oklahoma Governor, Frank Keating, to delay the execution were to no avail.

The groups say Oklahoma prosecutors urged the jury to consider Neill’s sexual orientation in determining whether to mete out a death sentence. They say homophobia is revealed by the prosecutor’s own words at trial.

“I want you to think briefly about the man you’re setting [sic] in judgment on and determining what the appropriate punishment should be,” the prosecutor told the jury. “[J]ust put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you’re sitting in judgment on-disregard Jay Neill. You’re deciding the life or death on a person that’s a vowed homosexual.”

The prosecutor’s appeal to prejudice was successful. The jury sentenced Neill to death despite what the groups say was significant mitigating evidence of Neill’s remorse, his physical abuse at the hands of both his father and stepfather and medical problems as a child. The US 10th Circuit Court of Appeals found the prosecutor’s remarks to be illegitimate and improper but refused to overturn the sentence.

“The bias in this case is a chilling reminder of the long history of persecution of gay people, a reason for individuals and groups to actively work against capital punishment,” said Bill Dobbs, a New York activist and member of Queer Watch. Chicago lawyer Joey Mogul of Queer to the Left added, “Neill’s case is another example of a prosecutor who had no shame in relying on prejudice, here anti-gay prejudice, to obtain a death sentence.”

In 1983 Neill joined the US Army. He was discharged in the summer of 1984 after disclosing that he was gay. He and his partner, 21-year-old Robert Johnson began to have financial difficulties and by December 1984, they were thousands of dollars in debt. They decided to rob the Geronimo bank on December 14 of that year. During the robbery, three bank employees-Kay Bruno, Jerri Bowles, and Joyce Mullenix-were stabbed to death. Four customers were shot, one of whom-Ralph Zeller-died. Neill and Johnson were arrested in San Francisco three days later and found with proceeds from the robbery.

Johnson and Neill were tried together in 1985 and both sentenced to death. In 1992, the Oklahoma Court of Criminal Appeals reversed their convictions, finding that they should have been tried separately. On retrial, Robert Johnson received a sentence of life imprisonment without parole.

At the sentencing phase of his own 1992 retrial, Neill told the jury that he did not expect any sympathy and that he, not Johnson, had been in the bank at the time of the robbery. He expressed his remorse, telling the victims’ families: “I am sorry. I am sorry. It’s eating me and I believe that’s part of my punishment. I’m sorry. I don’t know what to say to you. I wish there was something I could say to make it better but there’s not”. He also related the abuse he had suffered at the hands of his father, and later his stepfather, when he was a child.

In August 2001, the 10th Circuit Court of Appeals upheld the death sentence. One of the three judges, Judge Carlos Lucero, dissented, arguing that “the prosecutor’s blatant homophobic hatemongering at sentencing has no place in the courtrooms of a civilized society.” Judge Lucero wrote that the comments were “susceptible of only one possible interpretation: among other factors, Neill should be put to death because he is gay... I cannot sanction-because I have no confidence in-a proceeding tainted by a prosecutor’s request that jurors impose a death sentence based, even in part, on who the defendant is rather that what he has done”.

The 10th Circuit panel agreed to reconsider its decision, but in December 2001 again upheld the death sentence by two votes to one. This time the two in the majority acknowledged that the prosecutor’s comments had been “improper” and without “any legitimate justification”, but decided that the outcome of the trial had not been affected.

Judge Lucero again dissented, asking “what is it that makes the comments more than merely improper? As prosecutors know, gays and lesbians are routinely subject to invidious bias in all corners of society...The openly gay defendant thus finds himself at a disadvantage from the outset of his prosecution. When a prosecutor directs the jury to make its guilt-innocence or life-death determination on the basis of anti-homosexual bias, that disadvantage is magnified exponentially and raises constitutional concerns. This is so because prosecutors occupy a position of trust, and their exhortations carry significant weight with juries... Justification for these remarks was unquestionably illegitimate. Exploiting his position of trust and spinning the reality of anti-gay prejudice to a pivotal position in the capital-sentencing phase, the prosecutor undermined the possibility that petitioner’s sentence would be based on reason rather than emotion”.

Activists say Neill’s sentence was the second execution in recent Oklahoma history where the state used homophobic prejudice to get a death sentence. In 2001, Wanda Jean Allen, an African-American lesbian, was executed for killing her lover, Gloria Leathers, after the two had a physical fight. In Allen’s case, the prosecutors used what many saw as homophobia and sexism to dehumanize Allen in front of the jury by arguing she was the “man” in the relationship, that she wore the pants in the family, and emphasizing that she spelled her name in a masculine way. In Allen’s case, there were also questions regarding her mental retardation, and incompetent legal representation.

The United Nations Guidelines on the Role of Prosecutors requires that prosecutors “perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights”, and “carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination”. The right to freedom from discrimination on the basis of sex, which includes sexual orientation, is recognized in international treaties, including the International Covenant on Civil and Political Rights.

Amnesty International opposes the death penalty in all cases. Today, 111 countries have abolished judicial killing in law or practice. Since the USA resumed executions in 1977, 810 prisoners have been put to death nationwide, 52 of them in Oklahoma. Prosecutorial conduct is one of the issues highlighted in Amnesty International’s April 2001 report on the death penalty in Oklahoma, Old Habits Die Hard (AMR 51/055/2001).

Queer to the Left is a justice organization of lesbian, gay, bisexual and transgender individuals based in Illinois. Queer Watch is a national gay justice group that campaigned against capital punishment for the killers of Matthew Shepard.