The U.S. Supreme Court seldom hears appeals from defendants challenging the behavior of the jury that convicted them. A rare exception was the 2017 case of Peña-Rodriguez v. Colorado, in which by a 5-3 margin the Court decided to permit inquiry into reports that during deliberations a juror had made anti-Hispanic remarks. The reason for making an exception to the general rule against allowing inquiries into jury behavior, Justice Anthony Kennedy wrote, was because of the greater importance of eliminating racial bias in the court system. 

Finding evidence in those statements that the juror who made them was motivated by racial bias in judging the defendant guilty, the Court majority held that would violate the Sixth Amendment’s guarantee of trial by an impartial jury, and the Fourteenth Amendment’s right of due process. 

More recently, the Court received an appeal from Charles Rhines, a Death Row prisoner in South Dakota, who in 1993 had been convicted of stabbing to death a young employee at a Rapid City doughnut shop who discovered Rhines burglarizing the store. During selection of jurors, they were asked if they could decide fairly in a case where a defendant was homosexual, and, during the prosecution’s presentation of its case for Rhines’ guilt, the jury heard evidence that Rhines was in fact homosexual. 

The appeal submitted evidence that during sentencing deliberations more than one member of the jury which convicted Rhines made anti-gay remarks. For example, one juror characterized sending Rhines to a prison filled with men as serving as a sort of reward for him. And all jury members together sent a list of a dozen questions to the presiding judge asking about such things as whether Rhines, if sentenced to life in prison without parole rather than given the death penalty, would have a cellmate, be permitted to mix with the prison’s general population, or be allowed to marry or have conjugal visits. (The judge did not answer the questions posed by the jury.) 

Justice Kennedy’s opinion in the Peña-Rodriguez v. Colorado case maintained that racial bias raised “unique historical, constitutional and institutional concerns,” but the dissenters in that case warned it would be difficult to prevent inquiries into jury conduct from becoming far more common. One of them, Chief Justice John Roberts, during oral argument in the earlier case had in fact foreshadowed the precise argument Rhines would raise two years later; Roberts questioned whether allowing scrutiny of jury behavior in a case raising suspicion of racial bias could also be used to justify similar delving into jury conduct in a case in which gender identity bias was claimed. 

In mid-April, the Supreme Court declined to take up Rhines’ appeal, thus upholding state and lower federal courts which had approved his sentence. Since the Court did not explain why it declined to hear Rhines’ appeal (at least four Justices must agree to hear an appeal), its rationale for not taking it up cannot be known with certainty. The case also had procedural issues: Rhines had filed an earlier appeal, which South Dakota argued, made his latest filing an impermissible second filing on the same issue.