The Gender and Sexuality Law Blog covered a case our Sexuality & Gender Law Clinic was handling back in May having to do with a man who applied for and was denied parole by the Massachusetts  Parole Board because he was gay.  See post here.

This week, the Parole Board granted Bruce Wilburn’s parole application.   See details below.

Massachusetts Parole Board Grants Parole to Openly Gay Inmate After New Hearing Following the Settlement of a Sexual Orientation Discrimination Suit

Major Victory for Columbia Law School’s Sexuality and Gender Law Clinic

The Massachusetts Parole Board granted parole to Bruce Wilborn, an openly gay inmate who had previously sued the board for harassing him and treating his parole application skeptically because he is gay. Mr. Wilborn settled his lawsuit last April in exchange for a new parole hearing, which took place in May. (The decision, which was signed by the board’s executive director on Aug.18, was released to Mr. Wilborn’s counsel yesterday.)

In October of 2008, Federal District Court Judge Patti Saris rejected the parole board’s effort to dismiss Mr. Wilborn’s sexual orientation discrimination claims. That decision, in turn, adopted a federal magistrate’s ruling, which held that “federal anti-discrimination guarantees apply to parole decisions.”  Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Mr. Wilborn.

Mr. Wilborn is expected to return to his family in the fall.

“The board’s grant of parole reinforces that an inmate’s sexual orientation should not be the basis for denying parole,” said Suzanne B. Goldberg, director of the Law School’s Sexuality and Gender Law Clinic and a Clinical Professor of Law. “Earlier decisions in the case have shown that parole boards may not single out gay applicants and deny them fair and equal treatment. We are pleased that the law has now been followed in this case.”

“Mr. Wilborn fought for his right to receive a fair hearing,” added Mollie Kornreich, one of the students who represented Mr. Wilborn. “This is a gratifying outcome after that struggle.”

“I am thrilled that Mr. Wilborn has gotten the outcome he deserves. He has been a model inmate and an ideal candidate for parole,” said fellow student, Abram Seaman. “By granting Mr. Wilborn parole, the board is simultaneously giving a new start to a deserving man and establishing that treating a gay applicant’s sexual orientation as a negative factor for parole is both improper and irrelevant.”

Mr. Wilborn is represented by Neal Minahan and Lisa Linsky of McDermott Will & Emery LLP. Clinic students Mollie Kornreich ‘09, Keren Zwick ‘09, Abram Seaman ‘10, Adam Pulver ‘08, Amos Blackman ‘08, Simrin Parmar ’08, and Katherine Harris ‘09 have all worked on the case. Ms. Kornreich and Ms. Zwick argued against the dismissal of Mr. Wilborn’s case before Judge Saris, and Mr. Pulver argued against dismissal before Magistrate Judge Judith Dein.

To contact the students: Abram Seaman at abram.seaman@law.columbia.edu.

	Columbia Law students Mollie Kornreich, Abram Seaman, and Keren Zwick have taken up Bruce Wilborn’s case out of their belief he was denied parole in the killing of a gay man because he too is gay.

At first blush, Bruce Wilborn is not the ideal client for a lawyer. The 46-year-old gay man has been incarcerated in Massachusetts since 1985, after being given a life sentence with the possibility of parole.

Wilborn and his partner in 1983, Robert Gonzalez, conspired to kill Stanley Weinstock, a 54-year-old gay man, to collect the proceeds from his will that named Wilborn as the beneficiary.

This was not an impulsive murder. Wilborn and Gonzalez, who were 20 and 24 in 1985, made a pact to kill Weinstock on October 11, 1983. They put a great deal of thought into a plan that they hoped would hide their involvement, and they executed that plan 11 days later.

“It was a predetermined act of both of these people that [Weinstock] should die for their love and for money,” said Matthew J. Ryan, Jr., the district attorney who handled the 1985 trial, in a published report from that year. “Either or both of them expected to benefit from Stanley Weinstock when he died, either by way of a will or by an insurance policy.”

What drew the attention of a leading gay rights lawyer and a group of law students at Columbia University was how Wilborn was treated when he applied for parole in 2006. Three parole board members made comments and asked questions that suggested that Wilborn was denied parole because he was gay, he charged in a later lawsuit.

“The judge did suggest that the kind of behavior the parole board engaged in would constitute discrimination had it gone to trial,” said Keren Zwick, one of six law students who worked on the case with a private attorney and Suzanne B. Goldberg, director of the university’s Sexuality and Gender Law Clinic.

At a second look, Wilborn might be the perfect client. He had one disciplinary infraction during his prison time, and that was in 1991. He published two books while incarcerated and is working on a third. His family in Illinois will aid him if he is released.

And then he was wronged by the parole board, his student lawyers assert.

“At the baseline level, there was no rational basis for their negative consideration of his sexual orientation,” said Mollie Kornreich, one of the students.

The students did what good lawyers do when they represent clients who have committed heinous and violent crimes — they fought back.

“Even if you believe your client is guilty, you represent him zealously,” said Abram Seaman, who is gay and one of the students.

When Wilborn was denied parole in 2006, he appealed. That appeal was denied in 2007. He sued in federal court that year, initially representing himself, and then was aided by the Columbia students.

While sexual orientation is not a protected class in federal anti-discrimination laws, that does not mean that government entities are free to discriminate on that basis at will. Wilborn’s advocates asserted that his equal protection and due process rights under the US Constitution were violated when the board denied him parole because he was gay.

“It’s not unprotected, it just gets less protection,” Kornreich said.

Wilborn and the Columbia students won. In 2008, the state settled without admitting to any wrongdoing and agreed to give Wilborn another parole hearing on May 28. Normally, an inmate such as Wilborn gets a hearing every five years, so this latest hearing will come more than two years early.

The students are helping Wilborn prepare for the hearing and they fully believe that he deserves to be paroled.

“The function of a parole system is to recognize that people can rehabilitate themselves,” Seaman said. Zwick added, “Our personal feeling is that he isn’t likely to re-offend.”

While the settlement is not a legal precedent for other courts, it can be cited by attorneys or inmates who find themselves in a similar situation. “It’s not binding, of course, but it is persuasive,” Zwick said.

Judges can sometimes be reluctant to be the first to rule favorably for a gay or lesbian person, Wilborn’s advocates argue. His case, in their view, solves that problem and it is one more step forward for the queer community.

“Cases like this are exciting because they establish incrementally this is not okay, this is not okay,” Kornreich said.

Columbia Law School’s Sexuality and Gender Law Clinic can boast another victory – this time on behalf of a gay parolee in Massachusetts.  The Massachusetts Parole Board agreed last week to give Bruce Wilborn, an openly gay inmate, a new parole hearing to settle the sexual orientation discrimination charges he brought against the board more than a year ago. The settlement comes after Federal District Court Judge Patti Saris rejected the Parole Board’s attempt to dismiss Wilborn’s claims that the parole board singled him out and treated him worse than other parole applicants because he is gay. Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Wilborn.