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Impeaching Jury Verdicts

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After a jury has delivered its verdict and judgment has been entered, can that judgment be attacked with juror affidavits about what went on during jury deliberations?  The general rule, going far back into history, is no.  Jurors should be free to engage in uninhibited discussion of the case, without worrying about being interrogated about what was said during that deliberation.

The case of Peña-Rodriguez v. Colorado, No. 15-606, put this rule to a stress test.  In this case, the defendant was charged with "unlawful sexual contact, and attempted sexual assault on a child" for assaulting two teenage girls in a restroom.  One juror held stereotypical views of how Mexican men treat women.  Colorado adheres to the traditional strict view of the no-impeachment rule.  Does the Constitution require piercing the veil in these circumstances?  The Colorado Supreme Court said no, 4-3.  Today the United States Supreme Court said yes, 5-3.

Justice Kennedy assures us that this exception is a narrow one.  We've heard that before.
This case lies at the intersection of the Court's decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system. The two lines of precedent, however, need not conflict.

Racial bias of the kind alleged in this case differs in critical ways from the compromise verdict in McDonald, the drug and alcohol abuse in Tanner, or the pro-defendant bias in Warger. The behavior in those cases is troubling and unacceptable, but each involved anomalous behavior from a single jury--or juror--gone off course.Jurors are presumed to follow their oath, cf. Penry v. Johnson, 532 U. S. 782, 799 (2001), and neither history nor common experience show that the jury system is rife with mischief of these or similar kinds. To attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. "It is not at all clear . . . that the jury system could survive such efforts to perfect it." Tanner, 483 U. S., at 120.

The same cannot be said about racial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court's decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.
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For the reasons explained above, the Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee.

Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.

Racial bias only.  Clear statements only.  Significant motivating factor only.  Not every offhand comment.  Sounds like a narrow rule, doesn't it?  Okay if it stays narrow.  But Martinez v. Ryan's exception to the landmark rule of Coleman v. Thompson was promised to be narrow also, and the Court broke that promise and cast aside the narrowing limitations in short order in Trevino.  There are other examples as well.

I don't believe that Peña-Rodriguez was convicted because of this one juror's stereotyped views.  After all, there were 11 other jurors, and they found unanimously that the proof of his guilt was beyond a reasonable doubt.  Even so, I don't have much of problem with this particular case being retried with no bigots on the jury, but I am concerned that this is only the tip of the wedge, and attacks on jury verdicts may become much more common.

13 Comments

The problem here is that the Constitution has nothing to say about this, and the Court is making it up. That's a problem.

And, no, this won't be limited.

I can foresee the law review article now: "Taking the Implicit Association Test Seriously: Peña-Rodriguez and the No Impeachment Rule."

As I wrote on this blog back on October 10, 2016, the racial animus exhibited by the juror was so blatant, and was the sole basis for his decision to convict, that I expected the Court to draft a narrow exception (to the historical no-impeachment rule) to address these exceedingly rare circumstances.

The majority's rule is broader than I proposed -- as it uses wiggly terms like "clear," and "a significant factor," instead of the sole/exclusive basis test that I mentioned. But, for all the reasons stated in my prior comments on this issue, I still believe (despite Kent's and Justice Alito's concerns) that this exception will remain "cabined" to only the rarest of circumstances.

Time will tell if the "narrow" rule morphs into a broader rule that some fear. I don't see that happening based upon my experience handling post-verdict juror inquiries on behalf of the prosecution.

Sole basis? The evidence against the defendant didn't enter into his thought process at all?

I don't see how you can say that in this case. It's hard to imagine any case where the evidence against the defendant is so weak that the biased juror's bias is his sole basis for voting to convict, yet the other 11 jurors also vote to convict.

"Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict."

The "cabining" is pretty lawless. So the rule is that the jury trial right is violated only when the racial bias is obvious? An offhand comment (expletive?) is not enough? Is there a need for a connection between the juror's vote and the bias?

What the Court has done is basically set up a rule that racial bias in the jury room is a violation of the jury trial right, but that evidence of that violation is only admissible when the manifestation of that evidence reaches a critical level--that's generally not how our law works.

This "exception" will remain cabined in the same way and to the same extent my desire to eat just one peanut remains cabined.

I'll bet there are already a dozen defense websites explaining in lurid detail how to expand it like the blob.

Juror X testifies that Juror Y, during deliberations, stated: "I don't care what the evidence is, this guy's a Mexican, he's guilty" = Sole basis?

I believe the record before the Court was to the effect that the offending juror stated that the defendant was guilty "because" he was Mexican. This seems to me to meet the threshold showing that his racial animus was the "sole" basis for his guilty verdict. And, therefore, the 6th Am. required that this be explored by the trial court, notwithstanding the no-impeachment rule.

But, I agree with you, upon inquiry by the trial court, the prosecution should attempt to establish that, even if the offending juror made the statement during deliberations, it wasn't the "sole" (or, in the Court's words a "significant factor") in his voting guilty.

Presumably, the offending juror will admit, deny or clarify the statement attributed to him. And, presumably (because no one wants to be branded a racist), he will deny the accusation or clarify the statement attributed to him. Even in the unlikely event that he admitted making the racist remark, the prosecutor would (as you suggest) elicit from him a concession that his verdict was based on the evidence and not on the fact that the defendant was Mexican.

Perhaps, my prediction as to how these juror-misconduct inquiries will actually play out convinces you that the Court's holding will not result in but a handful (if even that) of convictions ever actually being overturned by a trial court?

I am less concerned with how many convictions are actually overturned than I am with how many claims have to be litigated but are ultimately found to be without merit. We are just throwing more and more bricks on our beast of burden's back.

As it is, we are plea-bargaining too many cases because we do not have the judicial resources for trial. With every new issue that requires hearings, we drain away more of those resources.

"As it is, we are plea-bargaining too many cases because we do not have the judicial resources for trial. With every new issue that requires hearings, we drain away more of those resources."

It's not a bug. It's a feature. Throwing stones into the gears is their very intent.

In addition to this apt observation, we need to remember that defense bar "ethics" place essentially no enforceable prohibition on making wild claims of bias. When they are proven not merely false but absurd, defense counsel faces no sanctions. To the contrary, they congratulate each other on being "zealous."

Actually, Bill, it had been my experience as a prosecutor that defense counsel who regularly made "wild claims" (in trial or appellate courts) did suffer a "sanction." Namely, they lost credibility in the eyes of the judges befoe whom they appeared. And, as you know, when it comes to arguments to a judge or a jury, credibility is everything. I believe the risk of being tarred with a tarnished reputation (as an honest, straight-shooting attorney -- prosecutor or defense counsel) serves as a potent incentive not to make "wild" (i.e., patently unmeritorious/bad faith) claims. Although, as you note, on occasion they do occur and are made in the name of "zealous" representation.

"Racial bias only. Clear statements only. Significant motivating factor only. Not every offhand comment. Sounds like a narrow rule, doesn't it? Okay if it stays narrow."

From a pragmatic standpoint, I guess I agree, but what does this say about the rule of law? We are only going to go so far to protect defendants against bigotry expressed in the jury box?

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