The Supreme Court split 5-3 on whether the “no impeachment” rule for jurors remains constitutional when a juror is overtly racist during deliberations. The facts of the case were quite flagrant, with a juror injecting strong racial animus* into the jury’s deliberations.
- Pena-Rodriguez “did it because he’s Mexican and Mexican men take whatever they want.”
- Mexican men are physically controlling of women because they have a sense of entitlement and think they can “do whatever they want” with women.
- Pena-Rodriguez “was guilty because, in [Juror H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”
- Where Juror H.C. used to patrol, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”
- Pena-Rodriguez’s alibi witness was not credible because, among other things, he was “an illegal.”
How this juror managed to avoid detection during voir dire is both a mystery and unsurprising. It’s remarkably easy for a juror to appear totally open-minded while harboring prejudice. Say the right words and that’s that. Not until deliberations did his biased view of Mexicans become obvious.
In Pena-Rodriguez v. Colorado, Justice Anthony Kennedy recognized the longstanding rationale for protecting the jury from post-trial investigation and impeachment, writing that race is different.
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.
This is relatively uncontroversial, as there was no argument that racial bias was an acceptable basis for reaching a verdict, but rather that opening the door to impeaching a verdict because of bias would expose the jurors to investigation and scrutiny and impair full and free discussion in deliberations.
While the majority recognized these issues, they determined that race, as opposed to other flaws in the deliberative process, overcame the recognized problems underlying the no-impeachment rule. Justice Kennedy swept the problems under the carpet with his resort to his favored “dignity” interest:
It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.
While “dignity” certainly sounds nice, and comports with the vague sense of feelings of what one would hope would be felt by all, it’s the sort of amorphous word that provides no guidance and can be twisted to justify almost anything.
Do the jurors who will be hounded by lawyers hoping to learn that someone in the jury room uttered a word or idea that can be used to impeach the verdict enjoy dignity as well? And while the perniciousness of racism requires no explanation, what of the perniciousness of sexism? Are sexist classifications unworthy of a commitment to “the equal dignity of all persons”? And if so, then we go down the laundry list of victims, and end with neither finality of verdicts nor any controls on the harassment of jurors after trial in the search for something, anything, with which to impeach the verdict.
To deal with the problem of undue sensitivity, the Court tried to formulate a rule that raised the hurdle above the trivial, everything is racist, level.
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.
Of course, what distinguishes “overt racial bias” is certainly different today than it was ten years ago, and will likely be different ten years from now, meaning that this test will be subject to constant challenge for how slight a statement need be to constitute overt racial bias. This will devolve into a war of rhetoric, pitting the sides against each other to see who can make jurors’ words seem the most horrible or benign.
But what of the harassment of jurors to reach the stage of breaking through the no-impeachment rule? Unfortunately, the Supreme Court punted on this last point, recognizing that it had opened Pandora’s Box by ruling that race was different without coming up with a means by which to control the obvious and natural harmful consequences of its ruling on the easy part of the case and ignoring the hard part.
The practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors…These limits seek to provide jurors some protection when they return to their daily affairs after the verdict has been entered. But while a juror can always tell counsel they do not wish to discuss the case, jurors in some instances may come forward of their own accord.
Putting aside Justice Kennedy’s resort to this “elusive and malleable” dignity interest, the Court shockingly failed to address the core purposes of the no-impeachment rule by making it other people’s problems. If it’s so insignificant that it falls below the Supreme Court’s interest, then why not open all improprieties to impeachment?
While a conviction grounded in juror racism is certainly improper, and is worthy of a cure, the Court failed miserably to provide the hard answer of the practical mechanics. To say that something obviously wrong is wrong is facile; to provide the means by which to fix it that won’t wreak havoc on the system is the hard decision. On this, the Court offers nothing.
It’s now the Wild West when it comes to going after jurors following a conviction to find some way to circumvent the no-impeachment rule. Dignity is a wonderful word, but there won’t be much dignity in jury duty when jurors find themselves followed by investigators trying desperately to get them to admit that someone in the jury room uttered words that can be twisted into some evidence of racial prejudice.
*An aside, pointed out to me by B.McCleod, to the decision is that “Mexican” is not a race, but national origin. To the extent the Court distinguished race as the basis for piercing the no-impeachment rule, the Court has created a serious problem for itself.