New York Times

Racial Bias Among Jurors Is at Heart of Supreme Court Case

September 20, 2016

by Adam Liptak

WASHINGTON — Things got ugly during jury deliberations in a 2010 sexual assault trial in Colorado.

“I think he did it because he’s Mexican, and Mexican men take whatever they want,” a juror said of the defendant.

The juror, identified in court papers as H. C., was a former law enforcement officer. After the trial was over, two other jurors submitted sworn statements describing what he had said during deliberations.

“He said that where he used to patrol, nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls,” one juror recalled.

In the end, the jury deadlocked on the most serious charge, a felony, but convicted the defendant, Miguel Angel Peña Rodriguez, of three misdemeanors. He was sentenced to two years’ probation.

Next month, the Supreme Court will consider whether Mr. Peña Rodriguez can challenge his conviction based on H. C.’s statements. That will require the justices to choose between keeping jury deliberations secret and sustaining the Sixth Amendment’s promise of an impartial jury.

In Mr. Peña Rodriguez’s case, the Colorado Supreme Court resolved that tension in favor of secrecy. By a 4-to-3 vote, it said that “protecting the secrecy of jury deliberations is of paramount importance in our justice system.”

In dissent, Justice Monica M. Márquez wrote that “racial bias is detestable in any context, but in our criminal justice system it is especially pernicious.” Jury secrecy is important, she said, but it cannot “trump a defendant’s opportunity to vindicate his fundamental constitutional right to an impartial jury untainted by the influence of racial bias.”

H. C. could not be reached for comment.

In an interview, Mr. Peña Rodriguez said the court’s majority had given too little weight to the need to eliminate racism from the criminal justice system. “I think keeping the prejudice out is more important,” he said.

Mr. Peña Rodriguez, 35, owns a company that builds custom homes, and trains racehorses on the side. He said that, in a way, he was glad that he had lost in the State Supreme Court.

“I think if I would have won, maybe it wouldn’t have made a change to everyone in the country, maybe just in Colorado,” he said. “Now that it’s at the Supreme Court, I think it’s got a chance to make a difference for other people.”

In earlier cases, the United States Supreme Court has said that even egregious misconduct in the jury room cannot be used to challenge a conviction if it would require jurors to testify about what was said there. But the court has never squarely confronted whether racial or ethnic prejudice requires an exception to the general rule.

In 1987, in Tanner v. United States, the Supreme Court let stand convictions in a mail fraud case in Florida even though the jury had treated the trial as “one big party” fueled by “rampant drug and alcohol abuse,” as one juror described it. During recesses, jurors drank pitchers of beer and liters of wine, and they used marijuana and cocaine.

Afterward, in the courtroom, some jurors slept. One was “in a sort of giggly mood.”

Justice Sandra Day O’Connor, writing for the majority, said there were good reasons to ignore “irresponsible or improper juror behavior” if it was based on jurors’ accounts of what had gone on in the jury room.

After-the-fact challenges based on jurors’ testimony, she wrote, would make it less likely that jurors would speak candidly during deliberations. Allowing such challenges would encourage lawyers to harass former jurors, she said, and undermine the finality of verdicts.

In 2014, in Warger v. Shauers, the Supreme Court unanimously ruled that jurors may not testify about what went on during deliberations, even to expose dishonesty during jury selection.

The issue did not seem to strike the justices as particularly difficult.

“What’s involved here is a juror reporting what she heard during the deliberations,” Justice Ruth Bader Ginsburg said when the case was argued. “And it seems to me that’s exactly the kind of thing that is not permitted.”

In the decision itself, Justice Sonia Sotomayor, writing for the court, suggested that cases involving racial bias might require a different result.

“There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged,” she wrote. “If and when such a case arises, the court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process.”

That case has now arisen. It is called Peña Rodriguez v. Colorado, No. 15-606.

Mr. Peña Rodriguez’s trial took place in Arapahoe County, south of Denver. As the judge recognized in an exchange with lawyers before jury selection, the county is not immune to tensions over immigration. “In the past,” Judge Marilyn K. Antrim said, “some of our jurors have been vocal in their dislike of people who aren’t in the country legally.”

One of Mr. Peña Rodriguez’s lawyers, Jonathan D. Rosen, said he had long been a lawful permanent resident. “He was brought into the country when he was 7 years old, floated literally across the El Paso River by his parents to get into the United States with a hope that he could make something out of his life,” Mr. Rosen said.

Mr. Peña Rodriguez, who maintains he is innocent, was convicted of harassing and trying to grope two teenage sisters in a racetrack bathroom. A defense witness testified that Mr. Peña Rodriguez was elsewhere at the time of the assault.

H. C., the juror said to have made the biased statements, was not persuaded by that testimony, according to a fellow juror. “He said he did not think the alibi witness was credible because, among other things, he was ‘an illegal,’” the fellow juror said.

Mr. Peña Rodriguez said he hoped the Supreme Court would take on what he said was a flaw in the justice system.

“Everybody knows there’s a problem, but nobody wants to address it,” he said. “They’re scared of it.”