Jury Duty, Justice, SCOTUS, Supreme Court

A Jury That Was So Racist The Sixth Amendment May Never Be The Same Again

Today, the Court ruled by a vote of 5-3 to pierce the jury deliberation veil to correct clear evidence of racial bias in jury deliberations.

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(Photo by Fred Prouser-Pool/Getty Images)

(Photo by Fred Prouser-Pool/Getty Images)

The facts of Pena-Rodriguez v. Colorado illustrate why minorities should have absolutely no faith in the jury system. Sending twelve randos into a private room to decide your fate allows those people to bring all their prejudices and biases into the room and into their decision making. At this point, I wouldn’t trust 12 randomly selected white people to decide if the First Amendment applies to minorities. I certainly wouldn’t trust them to fairly judge a minority accused of a crime.

At oral arguments, Justice Elena Kagan said the evidence of racial bias in this case was the “best smoking gun evidence you are ever going to see.” She’s not wrong. Miguel Pena-Rodriguez was accused of assaulting two teenage girls. He was convicted. After the verdict, a juror reported that a fellow juror, who was also a former police officer, said derogatory things about Pena-Rodriguez during jury deliberations. Most offensively: the cop argued that Pena-Rodriguez was guilty “because he’s Mexican, and Mexican men take whatever they want.”

I think that this kind of crap happens all the time, but usually you don’t get jurors testifying about the racism after the fact.

And even when you do, there’s usually nothing you can do about it. Colorado has a “no impeachment” rule, which means that you can’t use juror testimony about what happened during jury deliberations to impeach the verdict. Many states have a similar rule. The common-law on the principle goes all the way back — we’re talking about a real “Old World” principle here.

Today, the Court ruled by a vote of 5-3 to pierce the jury deliberation veil to correct clear evidence of racial bias on the part of the jury.

Anthony Kennedy delivered the opinion of the Court and, folks, this is some SWEEPING language:

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For the reasons explained above, the Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the 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. 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.

The Sixth Amendment requires us to consider evidence of juror racial animus, even when that evidence comes out after the the trial and relies on statements made during deliberations? Really? That’s, uhh, new. AND AWESOME. But totally not something we’ve said about the Sixth Amendment before.

Kennedy says his opinion is limited to instances of racial bias. He says that the Fourteenth Amendment tried to stop racism and so… hocus pocus we’re only worried about evidence of racial bias during jury deliberations. And you can see that he says statements of racial animus must be “significant motivating factor in the juror’s vote to convict,” whatever in the hell that means.

Even with those limitations, it’s BIG NEWS that the Sixth Amendment now extends to post-trial evidence of racist jury deliberations. It feels obvious that it should, and yet… to quote Justice Samuel Alito in dissent:

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.

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Yeah, dude. Yeah. The Court damn sure just opened the door on the jury room and told jurors that they can’t be racist, even in the privacy of their own deliberations.

I can’t agree with Alito, because what “our legal system has done for centuries” is to allow racist juries to convict minorities and call it “justice.” Our legal system IS racist towards minority defendants. CORRECTING THAT PROBLEM seems… important.

But there’s no question that what the Court has done in this case is new and, potentially, gives a cause of action to every minority convicted by a jury of his odious peers.

Clarence Thomas’s take (he dissented because of course he did), is that the original understanding of the Sixth Amendment was not to give defendants a bias-free jury, it was simply to make sure that the jurors were not personally invested in the outcome of the trial.

The Sixth Amendment’s specific guarantee of impartiality incorporates the common-law understanding of that term. See, e.g., 3 W. Blackstone, Commentaries on the Laws of England 365 (1769) (Blackstone) (describing English trials as “impartially just” because of their “caution against all partiality and bias” in the jury). The common law required a juror to have “freedome of mind” and to be “indifferent as hee stands unsworne.” 1 E. Coke, First Part of the Institutes of the Laws of England §234, p. 155a (16th ed. 1809); accord, 3 M. Bacon, A New Abridgment of the Law 258 (3d ed. 1768); cf. T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 319 (1868) (“The jury must be indifferent between the prisoner and the commonwealth”). Impartial jurors could “have no interest of their own affected, and no personal bias, or pre-possession, in favor [of] or against either party.” Pettis v. Warren, 1 Kirby 426, 427 (Conn. Super. 1788).

You gotta love Thomas, he actually quotes language that proves him wrong, but just stubbornly ignores it anyway. What is racism but “pre-possession in favor of or against either party?”

What’s true though is that Courts have not taken evidence of racial bias during jury deliberations as particularly problematic for the Sixth Amendment. Courts have been so concerned about the “sanctity” of jury deliberations that they’ve been willing to sanctify purely racist decisions. Understand, I thought this case was going to be 5-3 the other way: all the men saying “but… we have to do things the way they’ve always been done,” while the women dissented on the “f** this noise, the way we’ve always done it has been some racist s**t.”

Is this the dawn of a new, robust interpretation of the Sixth Amendment? I don’t know, but I LOVE IT when the Court does exactly what conservatives always bitch about: adopting a new interpretation of an old standard because it’s just the right thing to do.

I don’t give a damn what rules and traditions have been used to ignore evidence of racial bias in the jury system in the past. This is what progress looks like.

Pena-Rodriguez v. Colorado [Supreme Court]
Argument analysis: Court poised to strike down state ruling barring evidence of juror bias? [SCOTUSblog]

Earlier: Here’s How Black People Could Use Jury Nullification To Break The Justice System
Supreme Court Rules That Black People Are NOT More Deserving Of Death, Or At Least You Can’t Say So At Sentencing

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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