The Supreme Court threw open the normally tightly-sealed doors of the jury room in overturning the conviction of Miguel Pena-Rodriguez in the case of Pena-Rodriguez v. Colorado. In a 5-3 decision written by Justice Kennedy, the Court ruled that a juror’s racial basis in the jury room – which was only revealed to the public after the verdict – required the reversal of the conviction. This decision breaks new ground in the use of post=verdict juror interviews that could have far-reaching implications in criminal defense practice.
In 2007, in the bathroom of a Colorado horse-racing facility, a man sexually assaulted two teenage sisters. The girls told their father and identified the man as an employee of the racetrack. The police located and arrested Pena-Rodriguez. Each girl separately identified petitioner as the man who had assaulted her. After a 3-day trial, the jury found petitioner guilty of
unlawful sexual contact and harassment, but it failed to reach a verdict on the more serious charge of attempted sexual assault. During jury selection – as per usual – the jurors were asked if there was any reason they could not be fair and impartial in the case and they all answered in the negative. Following the discharge of the jury, the defense lawyer entered the jury room to discuss the trial with the jurors. As the room was emptying, two jurors remained to speak with counsel in private. They stated that, during deliberations, another juror had expressed anti-Hispanic bias toward Pena-Rodriguez and his alibi witness. Counsel reported this to the trial court and, with the court’s supervision, obtained sworn affidavits from the two jurors.
The affidavits by the two jurors described a number of biased statements made by another juror, identified as Juror H. C. According to the two jurors, H. C. told the other jurors that he “believed the defendant was guilty because, in [H. C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” The jurors reported that H. C. stated his belief that Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “‘I think he did it because he’s Mexican and Mexican men take whatever they want.’”According to the jurors, H. C. further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Finally, the jurors recounted that Juror H. C. said that he did not find the alibi witness credible because, among other things, the witness was “ ‘an illegal.’” when in fact, the witness testified during trial that he was a legal resident of the United States. The trial court denied the motion to overturn the verdict citing Colorado’s Rules of Evidence which prohibits a juror from testifying as to any statement made during deliberations in a proceeding inquiring into the validity of the verdict. (One wonders why the judge allowed the lawyer to take the affidavits if he knew they could not be used, but that’s another story). Without any prior record, the defendant was sentenced to two years probation and sex offender registration. The Colorado Appeals Court said there are no exceptions to this rule for racial discrimination. The Supremes disagreed.
As with most SCOTUS decisions, Justice Kennedy went through a long pointed analysis of how the “no impeachment of a verdict by a post-verdict juror affidavit” rule came into effect in the common law,State law, and Federal law. Noting that eleven States allow impeachment where the issue is racial bias, the Court pointed out that Colorado was not one of those eleven and had previously rejected this argument in other cases – so the State law of Colorado was clear. Federal rules of evidence allow for a few exceptions but Federal Appeals Courts are divided over whether asserting racial bias is one of them. So it is left to us, Kennedy stated to determine “whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.” In answering the question with a “Yes” Kennedy made some fo the large glowing statements that used to drive Scalia wild:
It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons. This
imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.The duty to confront racial animus in the justice system is not the legislature’s alone. Time and again, this Court has been called upon to enforce the Constitution’s guarantee against state-sponsored racial discrimination in the
jury system. All forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right. While the trial court concluded that Colorado’s Rule 606(b) did not permit it even to consider the resulting affidavits, the Court’s holding today removes that bar. When jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence.
The Court noted that the key here was that the jurors approached the lawyer first and not the other way around. Also important was the clear racial bias demonstrated. At oral argument, Justice Elena Kagan said the evidence of racial bias in this case was the “best smoking gun evidence you are ever going to see.” Kennedy cautioned that for the juror 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
deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” In say so, hemade it clear that not every off-hand comment will suffice to to break into the jury room. But it did oopen the door to litigation as he stated: “Whether that threshold showing has been satisfied is a
matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.
In his dissenting opinion Justice Alito (joined by Chief Justice Roberts and Justice Thomas) jumped on that and noted that it is highly likely that this tight rule set by Kennedy will be expanded as more juror affidavits get produced. He also did not mince words:
Today, with the admirable intention of providing justice for one criminal defendant, the Court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution. This is a startling development, and although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.
He’s right. Criminal defense practitioners now will likely try to approach jurors and see if they can elicit proof of racial bias. Many practitioners don’t believe in talking to jurors after a verdict for a number of reasons (one of which was surely that you could not make any use of what they said anyway). But now it may become a necessary function of the defense. Alito carefully sets forth how the current rules – both State and Federal – were developed by legislators over the years after many revisions, discussions, and amendments. He points out that there are many ways to better protect against racial bias – increased voir dire, better jury instructions and reminding jurors to report racial bias during jury deliberations. It is for State and Federal legislators – and not the Court – Alito states, to figure this out. He also adds that the ruling will make jurors less likely to be open in the jury room and will encourage lawyers, defendants and their friends and family to harass and track down jurors. He makes as curiosu statement that if the SIxth Amendment prevnets jury bias based onrace, then isn;t unfair to other defndatns whose jurors had differnet biases. He gives an exmaple of two defendants serving life sentences for homicide. One finds out the jury voted againt him becuase of race, the other finds out that the jury convicted him because he wore a jersey from a rival football team. He states it would be unfair to give one a new trial and not the otehr as both faced bias. And finally, he rests his opinion on that time-old favorite word in the criminal justice system – finality. Allowing post-verdict jury questioning and affidavits would weaken the importance of a jury verdict and continue the litigation. He closed by saying “The Court’s decision is well-intentioned. It seeks to remedy a flaw in the jury trial system, but as this Court said some years ago, it is questionable whether our system of trial by jury can endure this attempt to perfect it.”
Justice Thomas was not satisfied with just joining the main dissent. He added his own separate dissenting opinion (which no other judge joined, as per usual). His decision rests on his love for originalism. Going back to the first cases under the new Constitution, he cites that the Sixth amendment right to a fair trial merely encompasses what the common law was at the time it was ratified. And in 18th Century America (and England) the common law did not allow jury inquiry post-trial to impeach a verdict.
In 1770, [noted British jurist] Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” And in 1785, Lord Mansfield
solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. By the time the Fourteenth Amendment was ratified,Lord Mansfield’s no-impeachment rule had become firmly entrenched in American law. The Court today acknowledges that the States “adopted the Mansfield rule as a matter of common law,” but ascribes no significance to that fact. I would hold that it is dispositive. Our common-law history does not establish that—in either 1791 (when the Sixth Amendment was ratified) or 1868 (when the Fourteenth Amendment was ratified)—a defendant had the right to impeach a verdict with juror testimony of juror misconduct.In its attempt to stimulate a “thoughtful, rational dialogue” on race relations,the Court today ends the political process and imposes a uniform, national rule. The Constitution does not require such a rule. Neither should we.
Criminal defense practitioners will applaud the rule as it makes a clear statement that race must be excluded from the criminal justice system as a basis for judgement. But more importantly, the 5-3 decision casts a clear vote that we cannot continue to view the Constitution through the lens of the 18th century. We must recognize that as our society progresses and we become more aware of the deleterious effects and ramifications of racial prejudice, it is for the Supreme Court of the United States as the final arbiter of Constitutional interpretation to make sure that we moved towards a more perfect system of criminal justice.
Follow me on Twitter @oscarmichelen