Wednesday, October 5, 2016


10/11/2016 UPDATE: Oral Arguments were held on October 11, 2016 in Pena-Rodriguez v, Colorado. A transcript of the argument can be found here. Amy Howe from SCOTUSblog summarized the argument, and can be read here. Audio from the argument will be available Friday October 14, 2016 after the weekly SCOTUS conference. It can be listened to online here.

I could not help but smile a couple of times reading Howe's blog post and comparing it against the transcript. For example:
Some justices also appeared skeptical of the argument, made by both Colorado and the federal government, that attorneys can guard against racial bias infecting juror deliberations by asking potential jurors about it during the process of selecting the jury. Sotomayor, for example, suggested that the argument assumes that jurors would be truthful about their racial biases, while Ginsburg observed that many lawyers might not want to ask about racial biases because they don’t want to be responsible for putting the issue into jurors’ minds. When [Colorado Solicitor General] Yarger tried to reassure the court that things don’t actually work that way, Roberts countered, “How do you know that?” One of the problems here, Roberts indicated, is that asking about racial bias when screening potential jurors might alert other jurors who are biased that they should not reveal their biases.
"How do you know that?" Chief Justice Roberts asked the Colorado Solicitor General. "Based on my extensive experience picking juries" replied no Solicitor General, ever.

I only jest, sort of.

The truth is except for members of racial supremacy groups, jury panel members will not disclose racial bias in front of a room of strangers during jury selection. More likely, this kind of panel member has rationalized their racial bias, to have it later exposed during a heated deliberation when facts and jurors are exhausted and racial stereotyping rears its ugly head to fill the void.

If this happens, it is an affront to the administration of justice. Exposing race based deliberations and jury verdicts must be elevated over otherwise valid policy arguments shielding jury deliberations. Based on the arguments I believe both the swing votes of Justices Breyer and Kennedy are going with the liberal wing. If so, this will change post verdict practice in Texas.

ORIGINAL POST: Today, October 5, 2016, the Supreme Court of the United States hears oral arguments in Buck v. Davis, a death penalty case that has received much media attention. The media hook in Buck is the injection of race during his trial. Nevertheless, those waiting for extended oral arguments about the United States Constitution and race in criminal jury trials may be disappointed. The threshold legal issue in Buck actually turns on a rather technical procedural rule.

Return, if you will, to SCOTUS on Tuesday, October 11, 2016 for oral arguments about race, criminal jury trials and the Constitution. The case is Pena-Rodriguez v. Colorado and has some real world application to what happens in criminal courtrooms around the country.

Pena-Rodriguez was accused of what amounts to felony sexual assault after allegedly groping two teenage girls at a Colorado race track. At trial Pena-Rodriguez argued misidentification and presented an alibi defense. After a contentious deliberation, the jury sent a note to the trial judge that they were deadlocked. The judge sent a response with an instruction that in Texas is called an "Allen instruction," or, more descriptively, a "dynamite charge." Colorado must have a very similar instruction. The instruction is meant to light a fire under a jury, and it did. The jury eventually returned a verdict convicting Pena-Rodriguez on misdemeanor charges related to the allegations, but acquitted him of the felony charge.

Pena-Rodriguez was not satisfied with the felony acquittal and the misdemeanor convictions. His lawyers contacted jurors after trial. They found two jurors who said another jury member - "Juror H.C." - told the jury during deliberations that, from his experience in law enforcement, Pena-Rodriguez must be guilty “because he’s Mexican and Mexican men take whatever they want.” They told about four other racist statements, including one in which H.C. said the alibi witness, also Latino, was an “illegal,” who must be lying. Testimony showed this witness to be a lawful immigrant.

Pena-Rodriguez's filed a motion for new trial arguing Juror H.C.'s comments constituted juror misconduct. This motion was denied, and the Supreme Court of Colorado agreed. The reason? Like Texas (and most jurisdictions) Colorado has a rule that bars anything related to actual jury deliberations from use in post convictions proceedings. In other words, even if Juror H.C. said the awful, racist things attributed to him, it could not be be used to establish juror misconduct.

This rule barring evidence of juror misconduct is based on policy reasons. Jury verdicts need finality, and jurors should be protected from potential harassment from lawyers scouring about for something to complain about after trial. Jurors should also be able to take comfort during deliberations and after verdict from the fear of having to testify about their deliberations in open court. It promotes open and frank deliberations.

Pena-Rodriguez's counter argument is pretty simple: These policy reasons must yield to the Sixth Amendment of the Constitution promising every criminal defendant an impartial trial. The overt, racist statements attributed to Juror H.C. go to the heart of a criminal jury's sworn responsibility (every Texas criminal juror promises to "[A] true verdict render according to the law and the evidence, so help [them] God"). Juror H.C.'s statements go to the very essence of a juror's promise to decide a criminal defendant's fate based upon these two things.

SCOTUS has been pretty much immune from finding Constitutionally dimensioned exceptions to this rule rendering inadmissible statements made during jury deliberations. In the 1980's in an appeal from Florida (where else?) SCOTUS decided the rule barred post conviction evidence of jury misconduct concerning drug and alcohol parties during trial that led to juror hangover and sleeping during the taking of evidence. This was not enough to overcome the policy reasons behind the rule of inadmissibility. SCOTUS held that juror bias is best rooted out during the jury selection process. This argument has obvious shortcomings in real world criminal practice - especially in a racial bias context.

In another more recent case involving juror misconduct SCOTUS wrote “There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.” If Pena-Rodriguez is that case, it could impact post conviction practice significantly - especially in death penalty or life with out possibility of parole settings.

So for those of you waiting for sweeping arguments about race, criminal trials and the Constitution? See you next week.

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