Jury Room ‘Black Box’ Broken Open at Supreme Court

Oct. 11, 2016, 4:28 PM

The jury room is usually a black box, where secret deliberations determine the fates of defendants. At oral argument today, the U.S. Supreme Court grappled with whether racism was a sufficient reason to crack the black box open (Peña-Rodriguez v. Colorado, U.S., No. 15-606, argued 10/11/16).

Both sides faced difficult questions as the justices struggled with the pernicious effects of racial bias on the criminal justice system, and what principles could limit the inquiry into what happens in the jury room.

Jeffrey L. Fisher of Stanford Law School, representing defendant Miguel Angel Peña-Rodriguez, was hammered right off the bat by questions from Chief Justice John G. Roberts Jr. and Justice Samuel Alito about why racial bias was so vile that it required a special exemption from the usual rule of jury secrecy.

The ferocity of the questioning on the subject, for which Fisher didn’t seem to have a ready answer, seemed to put him on the back foot early on.

But Colorado Solicitor General Frederick R. Yarger faced his own barrage of questions about whether current safeguards were sufficient to protect the integrity of the criminal justice system.

Jury Room Bias.

Peña-Rodriguez was arrested for allegedly sexually assaulting two young women at the horse track where he worked. Although he presented an alibi witness, he was convicted—but only of misdemeanor charges.

Two jurors later revealed to defense counsel that one of the jurors had displayed anti-Latino racism. They reported that this juror believed Peña-Rodriguez to be guilty because he was a Mexican, who, among other things, “take what they want” and believe that they can do whatever they want with women.

The juror also disbelieved Peña-Rodriguez’s alibi witness because he was an “illegal,” the jurors reported.

Peña-Rodriguez argued that juror bias violated his Sixth Amendment right to an impartial jury.

But the Colorado Supreme Court refused to review Peña-Rodriguez’s evidence of the juror’s statements. “Protecting the secrecy of jury deliberations is of paramount importance in our justice system,” it said. It therefore affirmed the trial court’s decision not to order a new trial.

Limiting Principle.

Roberts began his search for a limiting principle early on.

“What about religious bias?” he asked Fisher. “Wouldn’t that also come under your exception?”

Fisher began to answer that though the two might be viewed similarly the court only had to decide about race, but Roberts stopped him.

“That seems to be avoiding the question,” he said. “Whatever we say on race is going to have either a limiting principle that makes sense, or it’s going to open up a broad category of cases,” he said.

Fisher suggested that the court merely start with race, but this time Alito interrupted.

“You’re not being very helpful to the court in your answers,” he said. “How would you distinguish religion from race if we were to reach the opposite decision in the religious case?” Alito asked.

And would a verdict be less odious because it was based on anti-Muslim or anti-gay bias, Roberts asked.

Once again, Fisher tried to point out that to decide this case, the court only had to look at the issue of race.

“Everybody is afraid to open the door” to that kind of inquiry, Justice Sonia Sotomayor said, paraphrasing Justice Stephen G. Breyer. “So tell me why that fear is not valid.”

Fisher noted that there are several cases where the court has made special rules limited to fighting race bias only. He also suggested that 14th Amendment equal protection principles could “infuse” the Sixth Amendment and that the inquiry into bias in the jury room could be more or less strict based on the kind of bias alleged.

Coin Flip.

Yarger faced difficult questions early, too.

Even assuming that there are safeguards to weed out jury bias in the ordinary case, the interests in fairness are greater, and incorrect verdicts more harmful, when infected with race or other identity bias, Justice Elena Kagan suggested.

Yarger pushed back on the idea that the harms caused by identity biases—bias against religion or sexual orientation, for example—were greater than the danger to the jury’s ability to render a secret verdict.

It’s “artificial not to think about” this case as informed by equal protection principles of the 14th Amendment, Kagan said. There’s a “special harm” in treating people differently based on race, “maybe especially because race is so associated with particular stereotypes respecting criminality,” she said.

“That’s about the worst thing you can do to a person, and it’s also the worst thing you can suggest about the criminal justice system, that it allows that to happen,” she added.

But “I think it would be difficult” to allow one defendant to impeach a verdict because it was racially motivated, and not allow a different defendant to challenge a religiously biased verdict, or one rendered by a coin flip, Yarger said. The latter referred to an 18th century British case refusing to impeach a jury verdict reached by that expedient.

Justice Anthony M. Kennedy expressed some concerns with Colorado’s argument. If this were a capital case, would the government make the argument “that the person can be executed despite what we know happened in the jury room?”

He later asked a similar question of Rachel P. Kovner of the Department of Justice, arguing as an amicus for Colorado. She suggested that the Eighth Amendment might present considerations not present in this case.

Yarger was more direct: “If the jury system is so important to be protected in these other contexts, and this rule is necessary to allow them to fully and fairly deliberate the issues, it out to apply” in the capital context as well.

Fisher picked up on Kennedy’s question in his rebuttal, saying that if the Eighth Amendment could be relevant in a capital case, then equal protection considerations could be relevant here.

Twenty Jurisdictions.

Fisher pointed out that 20 jurisdictions—18 state and two federal—already allow the kind of inquiry that Peña-Rodriguez sought here.

The inquiry generally requires that a judge make a finding that there was racial bias in the jury room. If so, the judge then looks at whether the influence of the bias was substantial, or merely a stray remark, for example.

New York has allowed this kind of inquiry since the ‘60s, and Minnesota since the ‘70s, he said.

Colorado’s objections to the inquiry were “all theoretical arguments about the harm that would come from adopting a rule” allowing challenged to racially biased juries. he said. But “this is not a theoretical question. There’s an empirical answer that is available to the Court based on the experience across the country.”

Yarger disputed both the number of jurisdictions allowing the inquiry—he counted six—and the procedure they followed.

The jurisdictions apply an “extreme-cases” test, not specifically limited to race bias, he said. In response to a question from Justice Ruth Bader Ginsburg, however, he acknowledged that the only cases using the process have been in cases of race bias.

And though there are such exceptions, there wasn’t any evidence that the courts in those jurisdictions weren’t swamped by frivolous challenges to the juries, Yarger said.

“Well, you can’t prove a negative,” Sotomayor said. Nevertheless, Yarger did note one case where an allegation of jury bias was based on a fabrication by the defense attorney.


Rachel P. Kovner of the Department of Justice, arguing as an amicus for Colorado, suggested that there are already safeguards against racial bias in jury verdicts.

Jurors are permitted to report bias in the jury room during the trial, and that could be strengthened through particular instructions, she said.

And in jury selection, lawyers always have the opportunity to ask potential jurors about race bias.

“The problem is it assumes that if the question is asked that every juror is going to be truthful,” and that it was unlikely that any potential juror would admit that they are biased, Sotomayor said.

Even if one asks different questions to elicit that information, “just by asking the question, you’re putting race in the minds of the jurors, and you’d rather not do that,” Ginsburg said.

“If they are saying that voir dire is a cure-all for this situation, what they are saying is in every single criminal case,” whether shoplifting, a DUI or a white collar case, “a defense lawyer is really required to interject race into the case from the outset,” Fisher agreed.


Kovner also highlighted the potential costs to the jury system of a rule permitting inquiry into race bias, including finality, harassment and tampering.

Allowing a “he said/she said” inquiry after the fact will undermine confidence in the jury verdicts, she said.

There’s also the danger that jurors will misremember, second-guess their deliberations or be subject to community pressures, she said.

Roberts also wondered whether alerting jurors that there could be racial issues would drive them underground, allowing them to have an insidious effect on the jury without revealing their bias.

“But if an individual is harboring racial bias, isn’t it better to harbor it than infect everyone else’s deliberations on the basis of it?” Sotomayor asked.

“I mean, if you’re not saying every Mexican commits this kind of crime, but you’re forced to argue the evidence to convince your jurors, isn’t that exactly what we want?”

Full transcript at http://src.bna.com/jie.

To contact the reporter on this story: Nicholas Datlowe in Washington at nDatlowe@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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