The Fag Card

Gay convict claims judge's homophobia put him on Death Row

On a September evening in 1991, 26-year-old Gregory S. Dickens and his teenage lover, Travis Amaral, drove east from Yuma on Interstate 8 and stopped at a rest area. When a car entered the westbound rest area, Amaral grabbed a .38-caliber revolver and strode across the freeway. There, Amaral robbed, then shot and killed Bryan and Laura Bernstein, newlyweds from Alabama who were on their way to Los Angeles to attend graduate school.

Dickens was on probation for having sex with a minor at the time.

There were no suspects in the double homicide until March 21, 1992, when detectives in San Diego questioned Amaral, then 16, as a possible new victim of Dickens' sexual predation. During that interview, Amaral told police about the Bernstein killings.

Joe Forkan

A Yuma County jury never heard about Dickens' sexual relationship with Amaral. After prosecutors had rested their case against Dickens, Amaral copped a plea and agreed to testify against his adult lover. Dickens' lawyers had plotted trial strategy -- including the selection of a jury -- based on the belief that Amaral would not testify. The defense objected to Amaral's 11th-hour testimony, and Yuma County Superior Court Judge Tom C. Cole agreed that it should not be allowed. Then Cole did an about-face and let the state reopen its case and put Amaral on the stand. In exchange for his testimony, Amaral received a sentence that makes him eligible for parole after serving 57 years.

The jury found Dickens guilty of two counts of felony first-degree murder (meaning the killings were motivated by financial gain), two counts of armed robbery and one count of conspiracy to commit armed robbery. Curiously, the jury acquitted Dickens of two counts of premeditated first-degree murder and one count of conspiracy to commit premeditated first-degree murder.

Judge Cole determined that aggravating circumstances made Dickens eligible for the death penalty. And that's the sentence he passed.

Now, after a decade on Death Row, Dickens has new lawyers and a new strategy. They are claiming Dickens deserves a new trial because Judge Cole is a homophobe and that his bias denied Dickens a fair trial. The judge's prejudice also motivated the death sentence, they contend.

Cole loathes gay people, Dickens' lawyers say, because the judge's own son, Scott Cole, was openly gay. They allege that when Scott Cole was in prison for theft and forging checks -- and ravaged by AIDS -- Tom Cole wrote to his son, "I hope you die in prison like all the rest of your faggot friends." In a sworn statement, Scott Cole's attorney said, "I clearly remember Judge Cole expressing intense disapproval of Scott's homosexuality and bitter hostility toward homosexuality in general." Scott Cole's lover swore that Tom Cole berated him for leading his son astray and assaulted his son because of his sexual orientation.

"Only after Mr. Dickens' conviction was final did he learn that Judge Cole was homophobic," Dickens' attorney, Daphne Budge, writes in a petition to the Supreme Court. "Judge Cole's animosity was not simply harboring stereotypes or holding religious or moral objections to the lifestyle; no, Judge Cole hated homosexuals."

Judicial rules prevent Judge Cole from commenting. "I can't discuss ex parte those pending issues, except to generally deny the allegations," the judge says.

Conrad Mellek, the Yuma County prosecutor who handled the Dickens case, insists the claims of prejudice are unfounded. "Judge Cole did more than bend over backward for Mr. Dickens as far as giving him a fair trial," Mellek says. "And as far as I'm concerned, there was no hint of bias."

Others acquainted with the Coles have made statements attesting to the judge's rectitude; they suggest that the judge and his son reconciled before Scott succumbed to AIDS.

Scott Cole can't testify about his father's mindset as Dickens went on trial. If the letter Scott Cole is purported to have received from his father ever existed, it does no more. And so far, courts have held that statements about Judge Cole's mien are insufficient to warrant a new trial for Dickens.

The Arizona Supreme Court, which has already affirmed the convictions based on the trial record, will decide whether the "new evidence" about Judge Cole's alleged animus toward homosexuals requires a new trial.

Budge argues that although the record might contain no smoking-gun evidence of Judge Cole's partiality, the lengthy trial presented hundreds of tiny occasions where the scales of justice were inexorably tweaked.

Unfortunately for Budge and her client, appellate courts are reticent to overturn criminal convictions based on judicial behavior. It takes a smoking gun.

It's conceivable that jurors decided the Dickens' case based on who struck them as the most accomplished liar. By all indications, Gregory Dickens himself wore that collar. As a result, he may feel the needle.

Dickens, who is 6-foot-4 and 245 pounds, claimed that the diminutive Amaral ruled his life, not the other way around.

The jury, however, clearly believed that if Dickens didn't fire the shots, he called the shots that led to the Bernsteins' demise. That's what Travis Amaral testified to, anyway. Amaral said that Dickens plotted the robbery. The murder weapon had been stolen from a car at Dickens' former workplace. The fact that Dickens gave three often contradictory statements to detectives made him a dreadful witness. The prosecution tore him apart.

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I don't know if Judge Cole is a homophobe, but I do know he loved his son; and gar or straight, these two losers who shot and killed an innocent couple in cold blood both deserve the death penalty.

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