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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
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
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
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
"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."
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