William McDermott was convicted of first-degree murder by a jury in 1982. In 1984, the Supreme Judicial Court reduced his conviction to second-degree murder but did not comment on anti-gay bias or homophobia as its reason for doing so. Decades later, defense counsel asked for a new trial, pointing to anti-gay comments from the defense counsel, the judge, and resort to homophobia and stereotyping by the prosecutor in crossing the defendant and in closing.
In response to amicus solicitation, the MA LGBTQ Bar Association ("Association") filed an amicus brief in this case informing the Supreme Judicial Court that "upholding a verdict tainted by anti-gay animus would create a substantial risk of a miscarriage of justice and jeopardize the public’s confidence in the administration of justice" and urging the Court to "recogniz[e] the historical widespread prejudices against homosexuals that permeated McDermott’s trial, [and] refuse to acquiesce to McDermott’s conviction and instead order a new trial."
One of the questions presented in the case was whether the Court would reach the issue of pervasive homophobia at trial, and the Association is glad that the Court did not place procedure over substance to reach the issue of anti-gay bias. The Association is also relieved that the Court acknowledged that the prosecutor's anti-gay conduct was error. Although, it was puzzling that the Court failed to acknowledge that the anti-gay bias went beyond the prosecutor. Comments by both the judge and defense counsel indicated significant animus toward and disgust of gay men.
The Association is devastated, however, that the Court did not recognize the profound effect that a trial pervaded by anti-gay bias would have had in 1982, the year AIDS was termed gay-related immune deficiency (GRID). Instead, the Court treated homophobic invective and tropes like garden variety mistakes that could be overcome by strong but not conclusive evidence. The Court's treatment of the effect of the prosecutor's discriminatory malfeasance in front of a 1982 jury, demonstrates that the Court failed to appreciate the power of anti-gay bias in the historical treatment of LGBTQ people. A decision like this is particularly painful for our members who lived through that period in history and experienced the prevalent societal discrimination that undoubtedly underlay this trial.
As brave as the SJC has been and can be, particularly in the area of LGBTQ rights, this opinion does not represent the best of its bravery. Should the issue of anti-gay bias come to the Court in another difficult case, the Association hopes to see recognition of the injustice that anti-gay bias can wreak. One only needs to look at the torrent of anti-LGBTQ legislation, executive action, and local policies attempting to erase LGBTQ people to know that we need a judiciary that understands the tremendous and awful power of LGBTQ-bias.