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September 21st, 2017

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Supreme Court hears case on biased comments in jury room

 Robert Barnes

By Robert Barnes The Washington Post

Published Oct. 13, 2016

Supreme Court hears case on biased comments in jury room

Justice Elena Kagan called it "the best smoking-gun evidence you're ever going to see about race bias in the jury room."

Now she and her colleagues on the Supreme Court will need to decide whether it is a good enough reason to allow a Hispanic defendant to challenge the long-standing principle of secrecy in jury deliberations.

A lawyer for Miguel Angel Pena Rodriguez told the court Tuesday that the constitutional right to a trial by a fair and impartial jury justified asking a judge to look behind the guilty verdict to jury deliberations that usually are secret.

In his case, a juror said during deliberations that he felt that Pena Rodriguez was guilty of sexual assault because he was Mexican, and "Mexican men take whatever they want."

Pena Rodriguez was challenging federal rules and those employed in Colorado and elsewhere that forbid challenging statements made during jury deliberations. But his attorney, Stanford law professor Jeffrey Fisher, said those rules must give way if there is an allegation of racial discrimination.

"This is a principle that goes quite a ways back in the court's jurisprudence, which is the perception of fairness when it comes to racial bias and racial discrimination is paramount," Fisher said. He said 18 states already allow such investigation.

Fisher found support among the court's liberals but was immediately questioned by Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. about where he would draw the line.

"What about religious bias?" Roberts asked. "Same thing in this case, except it's not, you know, this is how Mexicans act. It's this is how Catholics or Jews act, so they're obviously guilty. Wouldn't that also come under your exception?"

Fisher said he was only advocating that racial remarks be covered. But Alito said that was avoiding the inevitable.

"You're not being very helpful to the court in your answers," Alito said. "Suppose we start with race, and the next case involves religion. Now, how would you distinguish religion from race if we were to reach an opposite conclusion in the religious case?"

Justice Ruth Bader Ginsburg said gender stereotypes could be another example.

But Fisher said that those would be questions for another day and that the court often identifies racial discrimination as the first "evil" to try to eradicate.

Justice Sonia Sotomayor agreed. "I always thought the most pernicious and odious discrimination in our law is based on race."

Pena Rodriguez was convicted of groping two teenage girls in a bathroom at a Colorado track where he worked in 2007. He denied it, and said it was a case of mistaken identity. The jury acquitted him of a felony charge and convicted him of misdemeanors.

After the verdict, two jurors told defense attorneys that another juror, identified in court papers as H.C., had made the comments about Mexicans and said that as a former law enforcement officer he had seen numerous similar cases.

Pena Rodriguez's lawyers wanted the judge to investigate the comments to decide whether they deprived their client of a fair trial. But the judge said he was barred from conducting such a review, and his decision was upheld by a 4-to-3 vote of the Colorado Supreme Court.

Colorado Solicitor General Frederick Yarger told the justices Tuesday that the alleged comments from the juror were "no doubt reprehensible." But he added that the "citizen jury system requires safeguards to ensure full and fair debate in the jury room and prevent harassment and tampering after verdicts are handed down."

But Kagan said that, even granting that, "verdicts based on race discrimination pose a harm that verdicts based on other kinds of unfairness, which exist in the world, and are terrible, but still, that it's just not the same kind of harm."

The justices also questioned whether questions asked of potential jurors could ever combat the problem.

The court in a 2014 case unanimously decided that it was not worth violating the norm of jury secrecy in a case in which a juror during deliberations spoke of her daughter's automobile accident in a damages case resulting from a car crash.

But in a footnote, the justices seemed to assume a case such as Pena Rodriguez's was possible.

"There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged," the court wrote in that case. "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."

The case is Pena Rodriguez v. Colorado.

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