Court creates exception to no-impeachment rule for racial animus

Defendants have a right to an impartial jury, according to the Sixth Amendment, but state and federal laws tend to prohibit digging into jury deliberations to find signs of bias. Jury deliberations are meant to be private and so most challenges that seek to uncover what may have been said in order to prove impartiality are non-starters.

Today, the Supreme Court found an exception to that longstanding custom in a case out of Colorado: Peña Rodriguez v. Colorado.

Miguel Angel Peña Rodriguez faced sexual assault charges after he groped two teenage girls at Arapahoe Race Track in Colorado, his place of employment, in 2007.

Jury deliberations took a long time, and the jurors were eventually expressly ordered to come up with a finding. After the jury found Peña Rodriguez guilty, two jurors approached the defense attorney and informed him that one juror — identified as H.C. — had continually declared Peña Rodriguez guilty because he was Mexican.

The racially tinged statements by the juror include: “Mexican men take whatever they want” and “Nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls,” a statistic for which the juror cited his experience in law enforcement.

Colorado Rule of Evidence (CRE) contains the code 606(b), the no-impeachment rule, which says that — save for exceptions not relevant in this case — no juror may testify about what happened in jury deliberations. In other words, Peña Rodriguez’s lawyer would not be able to revive the case by relying on the two jurors’ testimonies, which, of course, would be vital to the challenge’s success.

The Colorado Court of Appeals affirmed the trial court’s decision, arguing that CRE was unimpeachable in this case. The dissent, however, argued that the Sixth Amendment right to an impartial jury superseded CRE. Then, the Colorado Supreme Court affirmed the decision, 4-3. The decision, however, acknowledged that there are convincing arguments for Peña Rodriguez. Racial bias was not at issue in either of two guiding cases: Tanner v. United States (1987), in which the Court ruled against a petitioning criminal who alleged his jurors were intoxicated during trial, and Warger v. Shauers (2014), in which the Court ruled that a juror with a daughter who caused a car accident wasn’t too biased to serve on a jury for a similar case.

Tanner had established four safeguards to determine during the trial whether a juror would fail to be impartial. While one safeguard — determining during voir dire — would not work with racial bias, the other three would be a sufficient check, argued the Colorado Supreme Court. Further, the Court expressed discomfort with creating more exceptions to CRE, which might cause lawyers to badger jurors with questions after the trial in order to justify an appeal. Also, it was impossible to differentiate between varying levels of severity in juror bias that would create a legitimate standard through which to evaluate cases that exemplified an exceptional instance of juror bias. Last, to expose such an example of juror bias and reorient existing law surrounding otherwise impregnable juror testimony would delegitimize the entire jury system, casting a pall over justice nationwide.

The dissent in the lower court argued against that argument: the Court put a premium on saving jurors from embarrassment and the finality of verdicts over defendants’ constitutional rights. That itself was more a detriment to the legitimacy of the justice system.

Justice Kennedy wrote the majority opinion for the Court, which overturned the Colorado court’s decision. His decision, joined by the liberal wing of the Court, claims its heritage from the Fourteenth Amendment, part of which sought to eradicate racism from jury trials by making unconstitutional all-white juries, which tended to punish black defendants extremely harshly and let violent whites off the hook. Congress passed legislation that integrated juries and prevented people who conspired to deprive African-Americans of civil rights from serving on juries.

Congress isn’t the only body tasked with protecting the justice system from racial discrimination, argues Kennedy. That historically has also been the Court’s role, beginning with Strauder v. West Virginia in 1880. The Court has ruled in many different types of cases, including those involving laws that explicitly exclude jurors based on race (Strauder and others), those involving laws that systematically exclude jurors based on race (Neal v. Delaware and others), those involving exclusion of a prospective juror based on race (Batson v. Kentucky and others) and those involving asking about racial bias during voir dire (Ham v. South Carolina and others).

Kennedy draws a distinction between this case and others that form the history of precedent in the no-impeachment rule. Whereas cases like Tanner and Warger had involved one-off irregularities, with juror predispositions specific to the case at hand, Peña Rogriguez involves racism, “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.” Racial bias, unlike, say, familial connections to another instance of the charge at hand, is legislated in the constitution.

Kennedy then makes the case specifically for using juror testimony after the deliberation: there’s a stigma to racial bias that would cause one who harbors it to conceal it during juror selection. As Kennedy draws the comparison to Warger, it is not nearly as shameful to have a daughter who was involved in a car accident as it is to be labeled a racist.

Kennedy’s decision, like himself, is moderate and he includes limits on the ability of lawyers to use juror testimony. Specifically, one or more jurors had to have made overt statements that strongly indicating one’s racist beliefs were a significant motivating factor in the jury’s vote, which is what happened in this case, since H.C. tried to sway the rest of the jury with his arguments. Kennedy also makes clear that lawyers should not pester jurors to know what happened during deliberation. The process of these appeals should comport with state ethics rules and procedures, and lawyers should only pursue these appeals if jurors initiate the dialogue. In other words, Kennedy doesn’t condone lawyers pestering jurors to find if there had been misconduct and refers to many state policies that protect jurors from such harassment. He cites the histories of the several jurisdictions that use less strict no-impeachment rules and finds no evidence of juror harassment.

Two dissents were filed: one by Justice Thomas, and one by Justice Alito, joined by Justice Thomas and Chief Justice Roberts. Thomas’s dissent argues that Kennedy’s interpretation of the Sixth and Fourteenth Amendments contradicts the original understanding of both. While the Sixth Amendment provides for an impartial jury, the promise of impartiality doesn’t guarantee a defendant the right to impeach a juror’s testimony. While some states diverged from this understanding and allowed juror affidavits that described the proceedings of deliberation, most states did not, and during the drafting of the Fourteenth Amendment, the prevailing view on the right to an impartial jury did not include the right to impeach jurors to ensure they were impartial.

Justice Alito’s dissent begins with a defense of confidentiality, and the expectation of it, as something that extends to jury deliberation. Alito argues that, unlike judges or lawyers, jurors are supposed to be just average people who can speak freely. Alito’s opinion, further, is a defense of the Court refraining from the political process. When Federal Rule of Evidence 606(b) was being drafted, there was a debate over the stricter rule in most jurisdictions (the ‘federal rule’) and the more lenient rule that allowed juror testimony in specific cases (the ‘Iowa rule’). Ultimately, the federal rule was chosen. In fact, Congress specifically rejected a version of the Federal Rule of Evidence that would allow jurors to testify about juror conduct. Colorado followed the federal government and adopted the federal rule.

Justice Alito argues that Kennedy’s arguments about Warger and Tanner amount to distinctions without differences. Further, he repeats the argument made by the Colorado Supreme Court and appeals court, that no-impeachment rules protect crucial interests and that there are safeguards in place in order to stem impartiality, and that allowing this sort of testimony would cause lawyers to badger jurors and would ruin the finality of verdicts. Justice Alito also criticizes the majority opinion for drawing distinctions between “anomalous” biases, like the one in Warger, and racial animus. The Sixth Amendment doesn’t take a stand on how to delineate biases, argues Alito. He includes a hypothetical: two prisoners may be charged and sentenced for the same crime, but one may have had their jury influenced by the defendant’s race while one may have had their jury influenced by the sports jersey they wore. In both cases, the result is the same — an irrational bias tainted the jury process — but it is unfair that only one would be entitled to an appeal. Alito also criticizes Kennedy’s assumption that judges would be able to tell what is a “‘clear’ expression of bias.”


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