New York Times

Court Mulls Jury Secrecy When Bias Is Revealed

October 12, 2016

by Adam Liptak

WASHINGTON — In an argument marked by testy exchanges, the Supreme Court on Tuesday struggled to decide whether it should make an exception to the usual rule that jury deliberations are secret when evidence emerges that those discussions were marred by racial or ethnic bias.

Chief Justice John G. Roberts Jr. said that allowing one exception to secrecy would soon lead to others. “The next case is going to be religion,” he said. “So 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.”

Justice Sonia Sotomayor, responding to the chief justice, said rooting out racial bias in the criminal justice system was a particularly pressing concern. “I always thought the most pernicious and odious discrimination in our law is based on race,” she said.

Chief Justice Roberts pressed his point. “You think it’s odious to have the same sort of discrimination against someone because he’s a Muslim or practices Islamic faith?” the chief justice asked Jeffrey L. Fisher, a lawyer for Miguel Angel Peña Rodriguez, a Colorado man convicted after deliberations that included biased remarks.

Mr. Fisher said that issue, like prejudice based on gender and sexual orientation, was one the court could consider in later cases.

Justice Samuel A. Alito Jr. chastised him. “You’re not being very helpful to the court in your answers,” Justice Alito said.

Justice Ruth Bader Ginsburg asked whether the case, involving a Mexican-American defendant, involved bias based on national origin rather than race.

Mr. Fisher responded that all concerned agreed that “race and ethnicity is interchangeable in this case.”

The case, Pena Rodriguez v. Colorado, No. 15-606, arose from statements made during jury deliberations in a 2010 sexual assault trial. “I think he did it because he’s Mexican, and Mexican men take whatever they want,” a juror said of the defendant, according to sworn statements from other jurors submitted by defense lawyers after the trial was over.

The jury deadlocked on the most serious charge, a felony, but it convicted Mr. Peña Rodriguez of three misdemeanors. He was sentenced to two years’ probation.

The case requires the justices to choose between keeping jury deliberations secret and the Sixth Amendment’s guarantee of an impartial jury.

Chief Justice Roberts said the Sixth Amendment was focused on all kinds of unfairness and not just racial bias. He asked whether jury secrecy should be pierced to combat even more direct unfairness in case where, for example, a juror contended that a particular witness “lies all the time.”

Mr. Fisher responded that “there’s a difference between a bias, harmful though it may be, that affects only a private litigant, compared to racial bias which is a stain on the entire judicial system and the integrity that it’s built upon.”

Justice Stephen G. Breyer made a similar point. “We’re trying to create a fairer system in general and one that will be perceived as such, and there race is a special problem,” he said.

Justice Elena Kagan appeared to agree. Drawing on precedents concerning jury selection and race, she said, “there need to be special rules to address this prevalent and toxic problem in our criminal justice system.”

Justice Alito said that rooting out racial bias during jury deliberations could pose difficulties in an era when some are quick to take offense. “Let’s consider the standard that now applies on a lot of college campuses as to statements that are considered by some people to be racist,” he said.

Frederick R. Yarger, Colorado’s solicitor general, said the juror’s comments in the case were “no doubt reprehensible.” But he added that there was no good reason to make an exception to the usual rules on jury secrecy.

Justice Anthony M. Kennedy asked whether Mr. Yarger would take the same view in a death penalty case. He said yes.

Justice Kennedy later asked the same question of Rachel P. Kovner, a lawyer for the federal government arguing in support of Colorado. “There may be different considerations in that context,” she said.