Racially discriminating statements in jury rooms are subject to scrutiny
A case about racial bias in the jury room would seem to have all the makings of a provocative and headline-grabbing decision. However, Peña-Rodriguez v. Colorado, a case containing just such bias, hovered a bit below the radar, even during this relatively low-key U.S. Supreme Court term.
Justice Anthony M. Kennedy appeared to be doing what he could then, in his March 6 majority opinion in the case, to offer some soaring rhetoric in explaining why a longtime rule against calling jury deliberations into question after a verdict must give way to concerns about a single juror relying on racial animus to convict a criminal defendant.
“The jury, over the centuries, has been an inspired, trusted and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases,” Kennedy said.
But “the nation must continue to make strides to overcome race-based discrimination,” Kennedy said. “Blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule.”
That rule, meaning jurors may not impeach their verdicts with later testimony about what went on in the jury room, is one aspect of the jury system that is itself centuries old, in Britain and the United States. The rule is meant to give finality to verdicts and ensure jurors that what they said during deliberations will usually not be called into question later.
In the 5-3 decision in Peña-Rodriguez, the court held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes in voting to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way to allow the trial court to consider the evidence of the juror’s statement.
Kennedy’s “language was even more potent and uplifting than many would have expected,” says John Paul Schnapper-Casteras, the special counsel for Supreme Court and appellate advocacy at the NAACP Legal Defense and Educational Fund, which filed an amicus brief in support of the defendant. “We thought it was powerfully written.”
A Juror’s Views on Mexicans
The egregious facts are these: Miguel Angel Peña-Rodriguez was charged with sex crimes in relation to alleged contact with two teenage girls in a barn at a Colorado racetrack. The teens were the daughters of a jockey, while Peña-Rodriguez was a newly hired horsekeeper at the track.
The trial court followed standard voir dire procedures, and no one who ended up on the jury acknowledged any ethnic or racial bias. After a three-day trial, the jury found Peña-Rodriguez guilty of unlawful sexual contact and harassment, but it failed to reach a verdict on a charge of attempted sexual assault.
After the discharge of the jury, the defendant’s lawyer entered the jury room to discuss the case. Two jurors informed the lawyer that during deliberations, one of their fellow jurors had expressed anti-Hispanic bias against the defendant and his alibi witness.
The two jurors gave affidavits in which they said a juror identified as “H.C.” had told the other jurors that he believed the defendant was guilty because, in his experience as a former law enforcement officer, Mexican men had a bravado that caused them to believe they could have their way with women.
The jurors said H.C. had declared that in his experience, nine times out of 10, Mexican men were guilty of being aggressive toward women and young girls.” And the jurors recounted that H.C. said that he did not find Peña-Rodriguez’s alibi witness credible because, among other things, the witness was “an illegal”—even though the alibi witness had testified that he was a legal U.S. resident.
The trial court reviewed the affidavits and acknowledged juror H.C.‘s apparent bias. But the court rejected Peña-Rodriguez’s motion for a new trial, noting that juror deliberations are shielded from inquiry under Colorado’s rules of evidence. The Colorado Supreme Court affirmed the conviction, citing two U.S. Supreme Court decisions that had rejected challenges to the similar no-impeachment rule under the federal rules of evidence with respect to juror misconduct or bias.
Those cases are Tanner v. United States, a 1987 decision in which the court rejected a Sixth Amendment challenge to evidence that some jurors were under the influence of drugs and alcohol during the defendant’s trial, and Warger v. Shauers, a 2014 ruling in which the justices rejected a challenge in a civil case where the losing party alleged that the jury forewoman had failed to disclose pro-defendant bias during jury selection.
Justice Kennedy, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, reached back to English common law in 1785, when Lord Mansfield rejected juror testimony that a jury had decided a case with a game of chance.
“The Mansfield rule, as it came to be known, prohibited jurors, after the verdict was entered, from testifying either about their sub-jective mental processes or about objective events that occurred during deliberations,” Kennedy said.
American courts adopted the Mansfield rule, though there were less rigid variations in some states, including one called the “Iowa rule.” In 1975, Congress adopted federal rules of evidence that included a broad no-impeachment rule.
Justice Kennedy balanced the no-impeachment rule with the court’s long line of cases seeking to eliminate racial bias from the jury system. “Time and again, this court has been called upon to enforce the Constitution’s guarantee against state-sponsored racial discrimination in the jury system,” he wrote.
“The court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee,” Kennedy said.
Not every offhand comment indicating racial bias will trump the no-impeachment rule, he said. For a post-trial inquiry to proceed, “there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s delib-erations and resulting verdict.”
In the case before the court, the alleged biased comments were egregious, according to Kennedy.
“Not only did juror H.C. deploy a dangerous racial stereotype to conclude petitioner was guilty and his alibi witness should not be believed, but he also encouraged other jurors to join him in convicting on that basis,” Kennedy said.
“What Justice Kennedy recognizes in his opinion is that the ordinary safeguards don’t work to ferret out the kind of racism present here,” says Lisa Kern Griffin, a law professor at Duke University who helped write an amicus brief for a group of law professors in support of Peña-Rodriguez. “He talks about the way racial bias performs an infective function. It corrupts.”
Prying Open the Door
Justice Samuel A. Alito Jr., in a dissent joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, emphasized that jurors are “ordinary people” who, once in the jury room, “are expected to speak, debate, argue and make decisions the way ordinary people do in their daily lives.”
To protect the jury trial right, “the door to the jury room has been locked, and the confidentiality of jury deliberations has been closely guarded,” Alito said, but the majority “pries open the door.”
Alito was dubious of Kennedy’s view that the Constitution is less tolerant of racial bias than other forms of juror misconduct, saying the Sixth Amendment gives every defendant the right to be judged impartially.
“Today’s decision—especially if it is expanded in the ways that seem likely—will invite the harms that no-impeachment rules were designed to prevent,” Alito said.
Thomas, in a separate dissent for himself, wrote that “our common-law history does not establish that—in either 1791 (when the Sixth Amendment was ratified) or 1868 (when the 14th Amendment was ratified)—a defendant had the right to impeach a verdict with juror testimony of juror misconduct.”
Michael B. Rappaport, a professor at the University of San Diego School of Law and the director of its Center for the Study of Constitutional Originalism, says he is not convinced that Thomas is correct about that common-law history. But Kennedy, he says, has “a methodology of chicken soup: a little bit of this, a little bit of that.”
“Justice Kennedy is not big on imposing limits on himself,” Rappaport says, “and his style of deciding cases leaves him free to do whatever he wants.”
This article originally appeared in the May 2017 issue of the ABA Journal with this headline: "Bias Behind Closed Doors: Racially discriminating statements made in the privacy of jury rooms are subject to scrutiny."