It was 1993, and a South Dakota jury was debating whether to sentence a gay man to death. Life in prison, one juror said, would be no punishment at all. Allowing the defendant, Charles Rhines, to spend his days surrounded by men would, the juror reasoned, be a kind of reward.
“If he’s gay, we’d be sending him where he wants to go,” the juror said, according to a 2016 sworn statement from Frances Cersosimo, who also served on the jury. She did not name the juror.
Another juror, Harry Keeney, said he was convinced that Mr. Rhines deserved to die for killing Donnivan Schaeffer, who encountered Mr. Rhines in 1992 while he was robbing a doughnut store in Rapid City, S.D. “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison,” Mr. Keeney said in his own 2016 sworn statement.
A third juror, Bennett Blake, described the deliberations to an investigator. “There was lots of discussion of homosexuality,” he said. “There was a lot of disgust. This is a farming community.”
The jury sentenced Mr. Rhines to death, and he has been on death row ever since. Over the years, he was represented by several sets of lawyers, who challenged his conviction and sentence on various grounds without success. It was not until 2015 that a new set of lawyers first tried to interview the jurors, obtaining statements from some of them in 2016.
Next week, the Supreme Court will consider whether to hear Mr. Rhines’s appeal, which asks the justices to rule that a biased jury deprived him of a fair trial.
Jury deliberations are ordinarily secret, and the Supreme Court has said that even egregious misconduct in the jury room cannot be used to challenge a conviction if it would require jurors to testify about what was said there.
But two years ago, in Peña Rodriguez v. Colorado, the court made an exception for racial bias during jury deliberations, saying that rooting it out was more important than keeping deliberations secret.
“Racial bias implicates unique historical, constitutional and institutional concerns,” Justice Anthony M. Kennedy wrote for the majority in the 5-to-3 decision.
The dissenting justices said it would he hard to limit the sweep of the decision. Indeed, one of them, Chief Justice John G. Roberts Jr., seemed to anticipate the question raised in Mr. Rhines’s case.
“What about sexual orientation?” Chief Justice Roberts asked when the Peña Rodriguez case was argued. “Somebody gives, you know, a bigoted speech in the jury room about sexual orientation and how particular types of people are more likely to commit crimes like the one before them? Is that sufficiently odious?”
In urging the Supreme Court not to hear Mr. Rhines’s case, Jason R. Ravnsborg, South Dakota’s attorney general, argued that racial bias was more serious than prejudice against gay men and lesbians. “Sexual orientation is not immutable to the same extent as race,” he wrote.
“No civil war has been fought over it,” he added. “No politician has ever proposed constructing a wall to keep homosexuals out of the country.”
Mr. Rhines’s jury appeared to have little doubt about his guilt.
But the jurors struggled to determine the right sentence, and they sent a note to the judge asking for help. “In order to award the proper punishment,” the note said, “we need a clear perspective of what ‘Life in Prison Without Parole’ really means.”
The note, signed by all 12 jurors, asked nine questions. A sample:
“Will Mr. Rhines be allowed to mix with the general inmate population?”
“Will Mr. Rhines be jailed alone or will he have a cellmate?”
“Will Mr. Rhines be allowed to marry or have conjugal visits?”
The judge did not answer, referring the jury to his earlier instructions, and the two sides now differ about whether the note was evidence of bias. Mr. Ravnsborg wrote, using unconventional spelling, that the last question was proof that the jury was “not phased by, or even convinced of, Rhines’s homosexuality.”
“What jury conceived of gay marriage in 1992?” Mr. Ravnsborg asked. “And the fact that the jurors asked about Rhines’s access to conjugal visits with visitors from outside the prison walls also belies Rhines’s assertion that they believed prison would afford him a harem of male sexual companions.”
Mr. Rhines must clear a number of procedural hurdles if the Supreme Court is to hear his central claim, and those hurdles may make his case unattractive to the justices. Mr. Ravnsborg devoted most of his brief to discussing those procedural problems, which appear to be significant.
Mr. Ravnsborg also took issue with some of the evidence submitted by Mr. Rhines’s lawyers. He acknowledged that a state investigator had confirmed that “one juror made a joke that Rhines might enjoy a life in prison where he would be among so many men.” But another juror characterized the remark, the investigator wrote, as a “stab at humor” that “did not go over well.”
“The alleged juror comments here are not clear and explicit expressions of animus toward homosexuals,” Mr. Ravnsborg wrote. “At best, they fall into the category of an ‘offhand comment.’ ”