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Thursday, June 15, 2017

SCOTUS Symposium: Peña-Rodriguez v. Colorado

Even in what David has rightly called “not a particularly important term,” there are some cases that stand out. One case that I suspect will have long-lasting influence is Peña-Rodriguez v. Colorado, decided earlier this spring on March 6.

The case dealt with extreme racial bias in the jury room—what Justice Kagan referred to as “the best smoking-gun evidence you’re ever going to see about race bias in the jury room.” The jury had struggled with in reaching a verdict in a sexual assault case. One juror stated that he believed the defendant was guilty because “Mexican men” have “a sense of entitlement” and a “bravado” that makes them think they can “do whatever they want” with women.

But because that evidence dealt with confidential juror deliberations and was not disclosed until after the jury had reached its verdict, the Colorado courts held that this statement could not be used to impeach the jury’s verdict under CRE 606(b), and the defendant’s conviction should stand.

In a 5-3 opinion authored by Justice Kennedy,

the Court sent the case back for a retrial before a new jury. The Court’s holding—that such egregious racial bias in the jury room deprived the defendant of his constitutional right to an impartial jury—was not surprising. And hopefully cases with such clear jury bias will be few and far between.

Nevertheless, the case will likely have significant ramifications. The Court was clear to limit its holding to cases of racial bias only, and not to other types of jury bias or misconduct. The Court distinguished past cases in which it had refused to allow inquiry into a jury’s improper compromise verdict or a juror’s pro-defendant bias. Justice Kennedy’s opinion noted that while “[a]ll forms of improper bias pose challenges to the trial process,” racial bias raises “unique historical, constitutional, and institutional concerns” and “if left unaddressed, would risk systemic injury to the administration of justice.”

Justice Alito, joined by Chief Justice Roberts and Justice Thomas, dissented. The dissenters pointed out that it is very difficult to remedy some types of juror impartiality and not others, noting that “What the Sixth Amendment protects is the right to an ‘impartial jury.’ Nothing in the text or history of the Amendment or in the inherent nature of the jury trial right suggests that the extent of the protection provided by the Amendment depends on the nature of a jury’s partiality or bias.” They express concern that the “ruling will also prompt losing parties and their friends, supporters, and attorneys to contact and seek to question jurors, and this pestering may erode citizens’ willingness to serve on juries.”

It seems likely that the dissenters are right that the holding will increase lawyers’ post-trial efforts to question jurors about what happened in the jury room. And it also seems likely that, in many cases, lawyers will hear stories of juror bias and misconduct. This may create a no-win situation; Justice Kennedy is surely right that refusing to remedy such egregious racial bias would diminish trust in the justice system. But regular inquiry into the jury’s deliberations might have a similar effect.

I’m not sure that there’s a good solution to that dilemma. One possible answer is a greater use of the trial judge’s ability to order a new trial on the weight of the evidence, which might preclude the need to inquire into the jury’s deliberation in cases where bias seems probable. I have written elsewhere that I think the Peña-Rodriguez case could have been a good vehicle for such a remedy—and if the judge had granted a new trial on the weight of the evidence, then the defendant’s remedy would not have depended on the jurors’ testimony. 

Posted by Cassandra Burke Robertson on June 15, 2017 at 10:57 PM in 2018 End of Term | Permalink


I think the weight of the evidence contradicted the verdict in Pena-Rodriguez ("pretending" would definitely be inappropriate!). I actually think that's why the jury turned to speculation and racial stereotyping instead of looking at the evidence alone--the crime was ugly, but the evidence itself was weak and contradictory. I think it's not uncommon for the jury to deal with relatively weak evidence by looking beyond the evidence for answers, and that creates a condition ripe for relying on stereotype, bringing in improper sources of information, compromise verdicts, etc.

Posted by: CBR | Jun 15, 2017 11:51:43 PM

The judge would have to find that the weight of the evidence did not support the verdict. "Mere" racial bias on the part of a juror, or even all the jurors, is not the same thing as finding that the weight of the evidence did not support the verdict. The juror could be racist, but the evidence could still really support a conviction. Are you suggesting that the judge should have pretended that the weight of the evidence was against the verdict or that it really was?

Posted by: biff | Jun 15, 2017 11:20:32 PM

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