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Justices Grapple With Racial Bias In Juror Deliberations

While uncomfortable with allowing a racist juror to change the outcome of a criminal trial, several justices asked what limits would protect juror deliberations from after-the-fact investigations.

Posted on October 11, 2016, at 8:26 p.m. ET

WASHINGTON — The Supreme Court on Tuesday considered a question at the intersection of fundamental expectations about the criminal justice system: the protection of jury deliberations from investigation and the damage that any racial bias can do to the whole system.

After Miguel Angel Peña-Rodriguez was convicted on charges of harassing and having unlawful sexual contact with two teenage girls, two of the jurors on his trial told his lawyer that a third juror had expressed racist attitudes while the jury considered the case.

Colorado court rules — as with federal court rules — prohibit courts from considering evidence from jurors about what happens during jury deliberations.

The question before the Supreme Court on Tuesday was whether this case — and evidence of racial discrimination more broadly — should be an exception to that rule.

The juror, according to the others, said during deliberations that Peña-Rodriguez "did it because he’s Mexican and Mexican men take whatever they want," along with other similarly racist statements.

The justices appeared likely on Tuesday to give Peña-Rodriguez the chance to use the testimony of those jurors from his trial to convince Colorado courts that he did not receive a fair trial due to that racial bias.

The main issue up for debate appeared to be how and why race should be treated differently than other unfairness in how decisions might be made in the jury room. The more liberal justices appeared comfortable with the concept of treating race — and potentially other identity-based bias — differently from other juror issues.

Chief Justice John Roberts — joined by Justice Samuel Alito and, at moments, by Justice Stephen Breyer — appeared primarily focused on the implications for other identity-based discrimination and even other issues if the court "opened the door" to allowing in testimony about racial discrimination.

"He says everybody is afraid to open the door. All right?" Justice Sonia Sotomayor interjected at one point. "That's what Justice Breyer said. So tell me why that fear is not valid."

Peña-Rodriguez's lawyer, Jeffrey Fisher, explained that there were two reasons why an exception for race wouldn't necessarily need to be extended to other issues. The first, he said, is that the court has other "race-specific rules [regarding court proceedings] that have never been extended beyond race." The second, he said, is analogizing the levels of scrutiny that courts apply to equal protection cases. Under equal protection analysis, race is one of the few characteristics that receives the highest level — strict scrutiny.

Later, Colorado's lawyer, Solicitor General Frederick Yarger basically gave a response to Fisher's discussion, telling the justices, "I think it would be difficult in the context of the Sixth Amendment in the same courthouse in Colorado to tell one defendant that that defendant gets to impeach the verdict because the error that happened to occur during deliberations is racial, whereas across the hall it was religious, or it was simply the jurors disrespecting the jury system enough to flip a coin. And — and that's the problem."

When the Obama administration lawyer defending the Colorado policy took to the podium, Breyer shifted his focus, asking Rachel Kovner, assistant to the solicitor general, about the "prophylactic aspect" of having an exception to the rule barring juror evidence, saying "if you want impartial juries in general, you have to deal with the problem of racial confidence in the work of the jury."

Kovner, reiterating some of the points made by her Colorado colleague, focused on "the cost of this rule" and the alternatives to such an exception — including question asked during jury selection in a process called voir dire and "mid-trial reporting" of irregularities such as racial bias.

In his final comments to the justices, Fisher tried to pull the case back to his bottom line and an argument that he believes will make the justices comfortable with making an exception to allow for juror testimony — regardless of the possibility that others may seek to expand the exception later.

"[T]he Court has never refused to remedy intentional race discrimination in the criminal justice system for fear of having to address other questions down the line," he said.

The justices give no timeline for when they will reach a decision in cases, although decisions are usually handed down in all cases from the term by the end of June.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.