Saturday, October 15, 2016

Safeguard Needed for Racism in Jury Room

      Race is different: different from any of the other categories of prejudice that lurk in our individual or collective subconscious. That is the undeniable lesson of 400 years of American history from slavery through Jim Crow to the present.
      Chief Justice John G. Roberts Jr. resisted the import of this undoubted truth, however, in a closely watched case [Oct. 11] challenging what may have been a racism-infected guilty verdict in a weak criminal case against a Mexican American defendant.
      Miguel Angelo Peña Rodriguez was convicted in 2007 of groping two teenaged sisters in a darkened bathroom at a Colorado race track. The evidence in the brief trial consisted of little more than the girls’ identification — first in a roadside “showup” and then in court. The defense lawyer challenged the identification on a variety of well recognized grounds. Peña denied the accusation and was backed up by a fellow Hispanic who said the two were together in one of the race track’s barns at the time of the offense.
      The jury deliberated for 12 hours before convicting Peña of three misdemeanor counts but acquitting him of a more serious felony charge. In juror interviews after the verdict, his lawyer gathered affidavits from two members of the jury that one of the jurors had made a number of blatantly racist statements during deliberations about Peña and his alibi witness. None of the jurors had volunteered any racial prejudices during jury selection.
      The juror, a white former law enforcement officer identified as H.C., was quoted by his fellow jurors as saying that Peña was guilty because “Mexican men take whatever they want” and “think they can do whatever they want with a woman.” Based on his experience as a law enforcement officer, H.C. said that in his former patrol area Mexicans were guilty “nine times out of ten . . . of being aggressive toward women and young girls.”
      For good measure, H.C. also rejected the alibi witness’s testimony because he was “an illegal.” In fact, the witness testified at trial that he was a legal resident of the United States.
      The evidence, however damning, collides with a rule dating back to 18th century England against impeaching a jury verdict based on deliberations inside the jury room. The Supreme Court embraced the rule in a decision in 1915, saying it was important to protect “frankness and freedom of discussion” among jurors. The court has reaffirmed the rule more recently in decisions in different contexts in 1987 and 2014. The Colorado Supreme Court applied the rule in its 4-3 decision in 2015 upholding Peña’s convictions; he had been sentenced to two years’ probation and required to register as a sex offender.
      The Supreme Court agreed to hear Peña’s appeal, which noted that 18 states allow such challenges for racial bias while Colorado is among the majority along with federal courts that do not. Civil rights groups joined in urging the court to safeguard the Sixth Amendment right to an “impartial” jury by allowing criminal defendants to challenge verdicts based on racist statements in the jury room. The Obama administration sided instead with Colorado in opposing any exceptions to the rule against impeaching a jury verdict based on evidence of “racial prejudice or on other types of bias or misconduct.”
      Representing Peña, Stanford law professor Jeffrey Fisher was only two paragraphs into his argument when Roberts jumped in with an old standby: the slippery slope problem. “What about religious bias?” Roberts asked. “Wouldn’t that come under your exception?” Fisher sought to deflect. “Religion might be viewed similarly,” he said, but he stressed that the court did not need to deal with other contexts in this case.
      Justice Samuel A. Alito Jr. echoed Roberts’ concern. “You’re not being very helpful to the court in your answers,” he said. Roberts asked later about sexual orientation. That might be treated similarly as well, Fisher said, but perhaps decided under a different balancing test.
      Liberal justices, however, jumped in to distinguish race from the hypotheticals Roberts and Alito were raising. “I always thought the most pernicious and odious discrimination in our law is based on race,” Justice Sonia Sotomayor said. Fisher readily agreed. The cases in jurisdictions that allow such challenges all focus on race or national origin, Fisher told the justices. The hypotheticals, he said, were “theoretical arguments.”
      By the end of the arguments, it seemed likely that Peña had the votes of four liberal justices to allow him a hearing to present the evidence and have a court decide whether the verdict against him was constitutionally tainted. A fifth vote on the eight-justice court would be needed from Justice Anthony M. Kennedy, who seemed troubled by the state’s arguments but less than certain. In a preview session, court watcher Tom Goldstein, publisher of SCOTUSblog, suggested that Kennedy might write a decision that allowed such challenges but only under a test “very hard” to meet.
      Roberts had a simpler answer to racial discrimination in a school desegregation case back in 2007. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote then. Jurors may bring other kinds of bias into the jury room, but those cases are no reason to back away from one limited safeguard against the racial discrimination that still pervades criminal justice in the United States.

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