The U.S. Supreme Court has a one-day argument week next week. Normal argument weeks are Monday through Wednesday. Next week, Monday is a legal holiday, Columbus Day. No arguments are scheduled for Wednesday, which is Yom Kippur.
So it's all about Tuesday. The main action, for our purposes, is Peña-Rodriguez v. Colorado, asking whether the Constitution requires an exception to the time-honored rule that you can't impeach a jury verdict by calling the jurors to testify as to what was said during deliberations. CJLF's brief, written by Kym Stapleton, is here. Our press release is here.
Manrique v. United States is a technical question about restitution. The Question Presented, as drafted by counsel for defendant, occupies an entire page and is a fine example of how not to write a Question Presented. However, the fact that the Court took it anyway is an example of why that may not matter as much as some of us think.
So it's all about Tuesday. The main action, for our purposes, is Peña-Rodriguez v. Colorado, asking whether the Constitution requires an exception to the time-honored rule that you can't impeach a jury verdict by calling the jurors to testify as to what was said during deliberations. CJLF's brief, written by Kym Stapleton, is here. Our press release is here.
Manrique v. United States is a technical question about restitution. The Question Presented, as drafted by counsel for defendant, occupies an entire page and is a fine example of how not to write a Question Presented. However, the fact that the Court took it anyway is an example of why that may not matter as much as some of us think.
The civil case on the docket is Samsung v. Apple, but don't look for any batteries catching fire. The Question Presented has to do with "design patents," defined by statute as, "any new, original and ornamental design for an article of manufacture."
A reasonable argument can be made that the facts of this case, justify the Court adopting a Warger, footnote 3, "extreme" juror bias exception to the rule prohibiting impeachment of a jury verdict.
H.C. said he believed the defendant was guilty "because" he was Mexican.
Is this "extreme" juror bias? Did it undermine the integrity of the trial? Was the opportunity to voir dire H.C. (and the other potential jurors) on the subject of racial bias sufficient to protect the integrity of the trial?
Does originalism provide direct or circumstantial answers to these questions? If not, aren't a particular justice's answers to these questions, in effect, their opinion on whether the outcome of the trial was "fair," "just," or "right."?
P.S. Excellent brief by Ms. Stapleton. More persuasive than the Solicitor General's IMO.
Seems to me that an originalist opinion would be that the Constitution doesn't come close to preventing states or the feds from adopting the rule that the jury cannot impeach its own verdict.
See page 8 of the brief, last paragraph.
Agreed. The Constitution doesn't prevent states or the feds from adopting that rule. But that's not the question in this case.
The question is whether the constitutional guarantee of a fair trial by an impartial jury permits a defendant under the unique circumstances of this case (i.e., a juror's statements exhibiting "extreme" (?) racial bias which served as a basis for his finding the defendant guilty) to seek to impeach the verdict (i.e., entitles him to an evidentiary hearing at which a judge can take testimony and decide whether or not the defendant's constitutional right to a fair trial was violated) notwithstanding the state rule prohibiting such impeachment?
I tend to agree with the dissenting opinion by the Colorado Supreme Court.
Yes it does. You're basically positing that the "devil is in the details" and arguing some odd test of "extreme" circumstances would create some exception under the Constitution's "grant" of power to the states to regulate the admission of evidence regarding jury deliberations. The Constitution doesn't admit of such fine distinctions (and originalism is very skeptical of those sorts of exceptions, which have the tendency to creep)--if the States have the right to adopt such a rule, they have the right.
In other words, an originalist would look at the states' right to create general rules that ensure the jury's ability to debate freely that will be followed without judge-made exceptions imposed by judges who don't like how those general rules apply in a particular case.
paul --
Suppose, after an acquittal, two jurors approached the prosecution with affidavits that a fellow juror had said that, since the defendant and defense witnesses were white, and the case agent and prosecutor were black, he had made up his mind at the outset of trial to vote for acquittal even though the evidence later persuaded him of the certainty of the defendant's guilt, because "these people have gotten too uppity and need to learn their place."
Should the prosecution be able to move to vacate the judgment as, in essence, a race-based fraud on the court? (The answer to the Double Jeopardy argument would be that there was never jeopardy to begin with in any realistic sense, given that the racial fix was in from the getgo).
If we are to start down this path, on the basis of "extreme" bias (which, as federalist points out, is certain to be stretched over time), shouldn't the people have the same right to examine jurors post-verdict to establish that they were deprived of justice solely because of racial prejudice?
Do you think this sort of thing has any principled place to stop, once begun?
Would your answer be the same if it were a mistrial rather than an ostensible acquittal?
Bill,
I have often pondered the questions you pose, having prosecuted cases that resulted in acquittals where, upon speaking to the jurors, I learned to my dismay that the jurors violated their oath to apply the law (as stated by the court) to the facts.
One of these cases involved a situation of the jurors advising me that they believed that the defendant was guilty but believed the crime was an aberration and didn't want to ruin the young defendeant's life. Juror nulification, pure and simple.
To my consternation, the People had no remedy (under the Constitution or California law) for this blatant juror misconduct resulting in an acquittal. As you know, the Constitution was not written to assist frustrated prosecutors.
Regarding the mistrial (vs. acquittal) situation. The People, as you know, have a remedy -- re-trial. And a defendant who learns for the first time after a mistrial that one or more of the jurors wanted to convict him based solely on "extreme" racial bias, has not, in any real sense (except the possible expense and inconvenience of a re-trial) suffered the prejudice (i.e., the deprivation of liberty) that a conviction entails. So, unless you can convince me otherwise, the mistarial scenario is not apropos to our discussion.
As to the slippery-slope argument (that you and federalist refer to). I agree, this is a potential problem for justices attempting to cabin, in a principled way, any "extreme" bias exception. I haven't attempted to draft a narrow, principled, "extreme" racial bias rule, but I am certain that the brilliant Supreme Court clerks can, and probably will, do so.
I should also note that to the extent that the no impeachment rule is based upon a desire to maintain the secrecy of juror deliberations, that seems like a very weak justification, given that in most/all (?) jurisdictions the defense (and the prosecution) can speak to jurors post-verdict and inquire into the basis for their verdict.
In any event, in a case like this -- where a juror's decision to find a defendant guilty is seemingly based solely upon racial bias, I believe that the fair trial right guaranteed by the Constitution has been abridged and, at a minimum, the defendant should be afforded an opportunity to establish that fact at an evidentiary hearing in the trial court.
P.S. I have represented the People at post-verdict hearings where the defense had obtained affidavits from jurors asserting that misconduct transpired during deliberations. These hearings were very rare and never resulted in a verdict being overturned. They also were conducted in a streamlined manner, while remaining consistent with due process.
Sometimes, it is more prudent for a prosecutor to do the right thing -- that which all reasonable persons would agree is dictated by "fairness." Rather than argue that the law demands a result that, to most reasonable persons, would be seen as being unfair. If, in fact, a defendant is convicted solely because a juror(s) harbored "extreme" (or even non-extreme) racial bias against him, I believe fairness dictates a re-trial.
Prosecutors (and police) routinely exercise their discretion (not to enforce the law as written). They do so "in the interests of justice." They should have done so in this case, and afforded the defendant an opportunity to establish that he was, in fact, denied a fair trail.
"Sometimes, it is more prudent for a prosecutor to do the right thing -- that which all reasonable persons would agree is dictated by "fairness." Rather than argue that the law demands a result that, to most reasonable persons, would be seen as being unfair. If, in fact, a defendant is convicted solely because a juror(s) harbored "extreme" (or even non-extreme) racial bias against him, I believe fairness dictates a re-trial."
Ah yes--the let's be "fair." To be honest, that position strikes me as moral preening, rather than reason (and of course you think that the Constitution, which appears to leave to the States the choice of whether to make jury deliberations privileged communications, is as enlightened as you are). Your idea of "fairness" may put rape victims through the trauma of a retrial; risks acquittal and opens up all jury deliberations which should be a black box to defense counsel inquiries. Etc. etc. That's an awfully big price to pay for moral preening.
The Constitution allows the states/federal government to exclude those affidavits, which Colorado lawfully did. That the rule results in applications that paul does not like, well, the Constitution bends.
Paul writes,
That strikes me as a triumph of hope over experience. Has any SCOTUS-created narrow exception in criminal procedure remained narrow? Can't think of any off-hand. The "narrow" exception to Coleman v. Thompson created in Martinez v. Ryan certainly did not stay narrow.
"In any event, in a case like this -- where a juror's decision to find a defendant guilty is seemingly based solely upon racial bias ..."
Doesn't seem "solely" to me. The evidence of guilt is this case is strong, including prompt, in-person ID by the victims. The other 11 jurors, including the ones offended by H.C.'s remarks, agreed that the evidence established guilt beyond a reasonable doubt.
Kent,
Hasn't the narrow exception (set forth in Oregon v. Kennedy (1982) 456 U.S. 667) to the rule that a defendant's successful motion for a mistrial removes any double jeopardy bar to retrial remained very narrow?
Hasn't the "actual innocence" exception described in McQuiggin remained very narrow and, thus, remained limited to truly extraordinary cases?
Correct me if I am wrong, but it seems as though what were initially Court-created narrow exceptions to criminal procedure rules that favored a defendant (i.e., Quarales' "public safety" exception) have been applied (in many cases rightfully so IMO) in a much broader manner than originally intended. And, on the other hand, the Court has been in most cases unwilling to expand the narrow exceptions it created that favored the government.
In any event, I still believe that the Court can formulate a very narrow exception that would be would be applicable only in the rarest of circumstances -- where a defendant can make a preliminary showing that a juror's guilty verdict was based exclusively upon his/her racial bias. And, even if this preliminary showing was made (as I believe it was in Pena-Rodriguez) it would simply entitle the defendant to a hearing where he should still bear the burden of proof.
Practically, what would happen at that hearing would be that the suspect juror would deny the allegations against him and assert that his verdict was based on the evidence alone.
Based on my experience in participating in these type of hearings, a trial court will almost never grant relief to the defendant.
One problem here is that the law is already engulfed with procedure at the expense (and the expense is considerable) of substance. Inviting yet more procedure is presumptively a mistake, even if it seems tempting in an "extreme" case.
A second problem, already noted, is spread. The defendant here is Hispanic. If an exception is made for anti-Hispanic bias, it is dead-flat certain to be made for anti-black bias......and then gays, Muslims, trans and every other group you so often hear about. It can't be stopped and won't be. Indeed, the defense bar's whole idea, sometimes admitted and sometimes not, is to spread it.
We have to steer the law, not toward more procedure, but toward more substance. When the verdict is reliable in the sense of being factually accurate, as this one is (having been subscribed by all the other jurors), the show needs to stop.
This will sometimes result in injustice (or, at the minimum, uneasiness). The problem is that the alternative -- the expanded absorption of finite law enforcement resources -- will result in MORE injustice. Finality is an undervalued virtue because its savings are hard to see. But it is essential nonetheless.
Bill,
How is the Sixth Amendment right to trial by an "impartial jury" satisfied in a case where a juror decided guilt based exclusively (or partly) on racial bias? (Assume for purpose of my question that that is what transpired in Pena-Rodriguez, at least according to the juror affidavits.)
How does the fact that the "verdict is reliable in the sense of being factually accurate" (because it was subscribed by the remaining 11 completely non-biased jurors) in any way diminish the substantive Sixth Amendment violation?
Isn't the presumptive substantive constitutional violation "structural" and, thus, not amenable to being deemed harmless because the reliable evidence of guilt was overwhelming?
And as to finality. At what stage of the criminal proceedings? No appeal? No collateral review? Is finality a sliding-scale concept such that the more serious the consequences of the conviction, the more procedural safeguards?
paul --
"How is the Sixth Amendment right to trial by an 'impartial jury' satisfied in a case where a juror decided guilt based exclusively (or partly) on racial bias?"
Your use of the word "partly" spells the end of your prior argument that a pro-defendant outcome in this case could, would (or should?) be limited to "extreme" cases.
To answer your question directly: Sixth Amendment rights, like all others, are not absolute, and their protection must be weighed against other interests. The law against post-verdict juror inquiries recognizes this. Has it been wrong all these years?
Protection against bias is undertaken at voir dire. If it allowed beyond that, the costs will devour the system. It's not that such claims will win; it's that the cost of litigating them will become astronomical, further burdening a system that is, as I type, being threatened with a massive renewal of violent crime.
We are not going to have a perfectly fair system. At best. we are only going to be able to choose which sort, and how much, unfairness we'll have. In a world of scarcity, stronger rather than weaker rules of finality will produce more justice for more people.
The culture (and, increasingly, the law) are becoming overrun with race-based complaints and, more generally, with unhinged grievance-mongering. To license more of it via this case would be a big mistake, as CJLF says in its argument.
"How is the Sixth Amendment right to trial by an 'impartial jury' satisfied in a case where a juror decided guilt based exclusively (or partly) on racial bias?"
The framing of the question that way (deliberately) excludes all other issues--and, of course, not-so-subtly assumes the moral high ground. First of all, there are thousands upon thousands of trials every year in America. Rules of general applicability work best in those situations. And that has even more force when it comes to something that goes to the heart of the jury's decisionmaking--namely, the deliberative process. But that's getting to the merits---the question really isn't that--the question is whether the Constitution authorizes the states to come up with a hard and fast rule that excludes evidence of juror statements during deliberations. And the answer to that is that it does, notwithstanding the siren song of this particular case.
But getting to the merits--abolishing the "no impeach" rule would have ugly consequences for jurors hailed into court to perform their duties, which, of course, could impact the jury trial system in America. So maybe just maybe, moral preening aside, we have to live with jurors who say things in jury deliberations that we don't like.
Finally, the idea that a juror would just come in and deny that his biased statement impacted his verdict and therefore motion denied is naivete on stilts. Do you really think that's going to fly? And that's not to mention the possibility of retaliation against the juror and the exposure. And all for what---something that you imply is a pro forma hearing.
The Quarles comment is interesting--on this blog, you have stated baldly that Quarles could be expanded to cover station house interrogations with respect to terrorist activity that's might happen in the future. So my sense is that you really don't have a huge problem with logical limitations on what you think are good ideas and hence permitted by the Constitution (and cases interpreting it).
Perhaps, "death is different" explains the extreme scrutiny given to the Buck case. But it's just absolute nonsense--defense counsel got a guy who generally testified for the State to testify that the defendant didn't meet the standard for a death sentence. And, on top of that, a state expert pre-disposed to drop the hammer on minority defendants. We may not like the tactic, and we don't like Quijano, but if I had to save the life of a murderer, I would definitely consider using Quijano to make the argument that even the State's guy doesn't think my guy should be executed.
Buck (like this Colorado case) provides yet another example of the morality plays that pass for justice in this country. And now it's infecting the judicial system because, you know, we have to prove our faith with shows of piety. But in these cases there are a lot of adverse consequences--adverse consequences that are ignored by those who want to show us their piety.