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.”
Research assistance and additional reporting: Michael Corwin