Race bias in the jury room: what’s the solution?

Much of the time in recent years, the Supreme Court has been divided deeply on racial issues.  Some Justices think the nation has moved beyond race, others think the problem remains as bad or is even worsening.  Differing views of constitutional issues about race thus emerge.

On Tuesday, though, there was no division over the perception that racial bias is a very worrisome thing when it shows up as juries deliberate in private over a criminal verdict.  Justice Elena Kagan described the problem most tellingly in the new case before the court: “We have the best smoking-gun evidence you’re ever going to see about race bias in the jury room.”  But the unanimity of concern over that problem vanished when the Justices explored solutions – and some even wondered if there is a need for any new solution.

For now, the only available options in a majority of state and federal courts to deal with the potential of race bias is for defense lawyers to try to use the jury-selection process to keep bias out of the jury box, before the trial begins, or for trial judges to instruct jurors that race is not to be a factor in their deliberations.

For centuries, going back to an English case in 1785, a firmly embedded view is that what jurors may have said during their secret deliberations cannot be used, after the trial is over, to challenge the verdict.  In that case 231 years ago, jurors had said after the trial that the verdict had been reached by a “game of chance” – perhaps the 18^th Century equivalent of flipping a coin.  But the judge refused to allow those jurors’ statements to be used to “impeach” the verdict, even though reaching a verdict by a game of chance was a crime.

The idea was imported into American law at least by the early 1900s.  The justification for it has been the same, in England and in America: it is deemed necessary to preserve the secrecy of the jury room, to encourage free debate during deliberations, and to avoid harassment of jurors after the trial is over.  In time, a few exceptions developed, but they are not widespread.

The case up for hearing in the Supreme Court on Tuesday – Pena-Rodriguez v. Colorado -- focused on whether the Sixth Amendment right to trial by an impartial jury should lead to a relaxation of the “no-impeachment” rule.

Miguel Angel Pena-Rodriguez, who worked at a race track in Colorado, was accused of groping two teenaged sisters in a bathroom at the track.  He was charged with sexual assault, and ultimately was convicted of the minor versions of those charges.  He was sentenced to two years on probation.

After the trial was over, two jurors approached the defense lawyers, and said that one of the jurors – a former police officer – had said during deliberations that he thought Pena-Rodriguez did the crime “because he’s Mexican and Mexican men take whatever they want,” and have “a sense of entitlement to do what they wish with women.”  That juror also was quoted as having said that, when he was in law enforcement, his experience was that “nine times out of ten, Mexican men were guilty of being aggressive toward women and young girls.”   Further, he had described an alibi witness as not credible because he was an “illegal” – which was not true.

After the verdict was in, defense lawyers asked the trial judge to order a new trial, relying on the Sixth Amendment.  The judge refused.  Colorado evidence rules, the judge said, bar the use of juror statements to challenge their verdict.  The Colorado Supreme Court agreed.

Stanford law professor Jeffrey L. Fisher, representing Pena-Rodriguez in the Supreme Court, had come to the hearing hoping to keep the Justices focused solely on the threat of race bias to the judicial system.  “Race is different,” he said, corroding trials and indeed the entire system.

But he encountered immediate questioning from Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., who wanted to know what the stopping point was: would the next case be about a juror prejudiced because of religion, or gender, or sexual orientation, or some other trait?   When Fisher answered by sticking with the “race is different” theme, Alito said that was not being helpful.

While the more liberal members of the court seemed more receptive to Fisher’s argument, they, too, were puzzled, but more about how such a challenge to a verdict would actually be explored.  Fisher had argued in his brief that courts would have the tools to work out the procedure, but the Justices wanted suggestions on how it would work.  Fisher said it would have to be an “objective” exploration by the judge, after hearing what jurors had said about remarks during deliberation, and then decide whether that may, or may not, have tainted the verdict.

Chief Justice Roberts moved on from the “what’s next” line of inquiry to wonder just how the judge could conclude that a juror’s remarks were a demonstration of bias.  Suppose, Roberts said, a juror just said he knew how people from a given neighborhood were inclined to act.  And the Chief Justice also asked whether Fisher was trying to bring the whole jurisprudence of racial equality into the Sixth Amendment equation about when a jury might not have been fair and impartial.  He also wondered what a judge was to do if, despite what one juror might have said, all of the jurors were clearly persuaded that the accused person was guilty.

What was gradually becoming evident in the hearing was that at least some of the Justices were simply set against opening up jury deliberations to post-trial challenges, and used their questioning to raise doubts about whether that would be workable at all.

It did not appear to help Fisher’s cause that some 18 states do allow some relaxation of the rule against “impeachment” of verdicts.  The law professor, though, did point out that the rule was relaxed in those states only when the claim was of racial bias in the jury room, not some other form of prejudice.

Opposing lawyers from Colorado and from the Justice Department, supporting Colorado’s position, made it clear they were offended by what was said in the Colorado jury room, but both insisted that existing methods of heading off such bias – questioning of potential jurors, plus judge’s instructions – were sufficient to deal with the problem.

It was left to Justice Kagan to express some exasperation.  The court, she noted, had allowed questions about racial attitudes during selection, and had even allowed direct challenges to potential jurors who had exhibited some signs of racial inclination, but the court did not seem prepared to deal with bias that had actually occurred.

Because only eight Justices are on the court now, there remains a chance of a 4-to-4 split, if a ninth Justices does not join the bench before the ruling is issued.  The result of such a split would be to simply uphold the Colorado ruling barring the use of juror statements to challenge a verdict after the trial.