In
Murder Cases, Being Gay Can Seal a Defendant's FateQueer on Death
Row - by Richard Goldstein
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 percent 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, five
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 to opt
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, it may have
doomed them. 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
six 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
percent 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 percent 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 percent 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 condemn a masculine
woman to death, especially if she is what Streib calls "a
tough customer." In several recent murder cases involving
lesbian couples, the state labeled one woman the dominant member
of the pair and charged her with capital murder, while allowing
her more "feminine" companion to plead guilty to a
lesser charge. But sometimes not even femininity is enough to
spare a lesbian's life. Ana 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
she was called. 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 male 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 two 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 had 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 first
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."
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 percent 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, five
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 to opt
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, it may have
doomed them. 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
six 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
percent 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 percent 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 percent 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 condemn a masculine
woman to death, especially if she is what Streib calls "a
tough customer." In several recent murder cases involving
lesbian couples, the state labeled one woman the dominant member
of the pair and charged her with capital murder, while allowing
her more "feminine" companion to plead guilty to a
lesser charge. But sometimes not even femininity is enough to
spare a lesbian's life. Ana 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
she was called. 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 male 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 two 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 had 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 first
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."
