Queer on Death Row

In Murder Cases, Being Gay Can Seal a Defendant’s Fate

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.

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.”

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."

Research assistance and additional reporting: Michael Corwin

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