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 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.

Calvin Burdine waits on death row: The prosecutor said sending someone like him to the penitentiary “certainly isn’t a very bad punishment for a homosexual.”
Photo: Andrew Lichtenstein/ Corbis Sygma
Calvin Burdine waits on death row: The prosecutor said sending someone like him to the penitentiary “certainly isn’t a very bad punishment for a homosexual.”

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.

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