The Supreme Court Wrestles with Juror Racism

Nick Lutz, Online Editor

Early last month, the Supreme Court heard oral arguments in Pena-Rodriguez v. Colorado,[1]  an appeal from the Colorado Supreme Court evaluating the impact of juror racism on Defendants’ fair trial rights.  Miguel Pena-Rodriguez was tried and convicted on charges related to the alleged sexual assault of two young women.  Following trial, multiple jurors reported that the deliberations had been tainted by discriminatory comments regarding Mr. Rodriguez-Pena’s Hispanic heritage.[2]  Affidavits from the jury described numerous racist comments by one juror in particular.  “Juror H.C.,” a former law enforcement officer, allegedly made statements such as,

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Rodriguez-Pena’s counsel argued that Juror H.C.’s conduct amounted to a clear violation of Mr. Rodriguez-Pena’s Sixth Amendment right to an impartial jury.[3]  The trial court refused to consider the juror affidavits, finding that they were inadmissible under Colorado Rule of Evidence 606(b).  Rule 606 prohibits courts from considering testimony, affidavits, or other evidence provided by jurors regarding “any matter or statement occurring during the course of the jury’s deliberations” or use of such testimony “upon an inquiry to the validity of verdict.”[4]

The rule against juror testimony, in the form of an affidavit or otherwise, is known as the “no-impeachment rule.”  It is followed in one form or another in a majority of states and is codified under Federal Rule of Evidence 606.  Under Colorado’s no-impeachment rule, juror testimony is barred on all matters other than “whether extraneous prejudicial information was improperly brought to the jurors’ attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.”[5]

The no-impeachment rule is intended to promote finality and ensure the opportunity for jurors to engage in full and fair deliberation.  As the Supreme Court explained in McDonald v. Pless,[6]

But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

In perhaps the most infamous case regarding juror impairment and misconduct, Tanner v. United States,[7] the court was asked to consider several juror affidavits alleging rampant drug and alcohol intoxication during trial and deliberations. The affidavit signed by juror Daniel Hardy was particularly damning:

Hardy indicated that seven of the jurors drank alcohol during the noon recess. Four jurors, including Hardy, consumed between them ‘a pitcher to three pitchers’ of beer during various recesses. Of the three other jurors who were alleged to have consumed alcohol, Hardy stated that on several occasions he observed two jurors having one or two mixed drinks during the lunch recess, and one other juror, who was also the foreperson, having a liter of wine on each of three occasions.  Juror Hardy also stated that he and three other jurors smoked marijuana quite regularly during the trial. Moreover, Hardy stated that during the trial he observed one juror ingest cocaine five times and another juror ingest cocaine two or three times. One juror sold a quarter pound of marijuana to another juror during the trial, and took marijuana, cocaine, and drug paraphernalia into the courthouse.

Still, the Supreme Court ruled that FRE 606(b) barred consideration of the juror testimony. The Court held that to prove a Sixth Amendment violation of a defendant’s right to an impartial jury, nonjuror evidence was required.  The Court further elaborated that defendants’ Sixth Amendment rights were sufficiently protected by other trial processes, negating a need for a juror misconduct exception to the no-impeachment rule:

Petitioners’ Sixth Amendment interests in an unimpaired jury, on the other hand, are protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire. Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel. Moreover, jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict. Finally, after the trial a party may seek to impeach the verdict by nonjuror evidence of misconduct.[8]

Mr. Rodriguez-Pena’s appeal argues, however, that unlike juror intoxication, racist juror conduct should be exempted from the no-impeachment rule for the simple reason that “the most pernicious and odious discrimination in our law is based on race.”[9]   As Colorado Supreme Court Chief Justice Nancy Rice noted, Rodriguez-Pena’s appeal centers around the “interplay between two fundamental tenets of the justice system: protecting the secrecy of jury deliberations and ensuring a defendant’s constitutional right to an impartial jury.”[10]

During oral argument, the justices struggled with whether a racist conduct exception would open a floodgate of litigation without an additional limiting principle.  Justice Alito, in particular, expressed concern regarding the changing nature of our societal understanding of racism, transparently implying that jurors might be overly sensitive regarding issues of race:

JUSTICE ALITO: But here we have — in this case, we have a very blatant statement, but let’s consider the standard that now applies on a lot of college campuses as to statements that are considered by some people to be racist. What would happen if one of the jurors has the sensibility of a lot of current college students, and thinks that one of the — something that’s said in the jury room that falls into one of those categories was a racious — was a racial comment?

MR. FISHER: We’re talking here, Justice Alito, only about intentional racial bias. So —

JUSTICE ALITO: Even the first time a person says something that is considered improper on a college campus today and another juror thinks that that shows intentional racial bias.

MR. FISHER: No, I think, as I said, it’s an objective test. Even under the Court’s equal protection jurisprudence, the Court hasn’t —

JUSTICE ALITO: Yeah. How will the judge decide — how will the judge decide whether the statement is — is racist?[11]

Despite those concerns, commentators have argued that the Court appears ready “to issue at least a narrow ruling in Pena-Rodriguez’s favor.[12] The Court’s decision is expected next year.  Check back for more analysis from the Criminal Law Review following the announcement.

For an excellent summary of the oral arguments, see Amy Howe’s recent article on SCOTUS Blog.

Listen to the full oral argument here.

 

[1]136 S. Ct. 1513, 194 L. Ed. 2d 602 (2016).

[2] Pena-Rodriguez v. People, P.3d 287, 289 (June 15, 2015).

[3] Id.

[4] Colo. R. Evid. 606.

[5] Id.

[6] McDonald v. Pless, 238 U.S. 264, 267–68 (U.S. 1915).

[7] Tanner v. United States, 483 U.S. 107, 115–16 (1987) (internal citations omitted).

[8] Id. at 127.

[9] Transcript of Oral Argument at 6, Pena-Rodrguez v. Colorado, 136 S.Ct. 1513 (2016) (No. 15-606).

[10]Pena-Rodriguez v. People, P.3d 287, 289 (June 15, 2015).

[11] Transcript of Oral Argument at 26, Pena-Rodrguez v. Colorado, 136 S.Ct. 1513 (2016) (No. 15-606).

[12] http://www.scotusblog.com/2016/10/argument-analysis-court-poised-to-strike-down-state-ruling-barring-evidence-of-juror-bias/

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