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Supreme Court Wonders Where to Draw the Line in Jury Bias Case

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By Casey C. Sullivan, Esq. on October 11, 2016 2:59 PM

Miguel Angel Pena-Rodriguez was guilty because 'he's Mexican and Mexican men take whatever they want,' a juror in Pena-Rodriguez's misdemeanor sexual harassment trial declared during deliberations. Then that jury convicted Pena-Rodriguez, a conviction that requires him to register as a sex offender.

Yet when two jurors came forward to reveal the openly racist comments, there was little Pena-Rodriguez could do. Colorado, where he was convicted, prohibits the use of juror testimony during an inquiry into the validity of a verdict or indictment. This "no impeachment" rule, which can be found in virtually every jurisdiction, shouldn't be allowed to trump Pena-Rodriguez's right to a fair trial, he argued in the Supreme Court today. From the looks of it, he may have a few justices on his side.

"Because He's Mexican"

Pena-Rodriguez was convicted of sexually assaulting and harassing two sisters at a Colorado race track. His jury included a retired police officer who made a series of racist statements tying Pena-Rodriguez's guilt to his ethnicity. He's guilty "because he's Mexican," the juror said. Mexican men had "a bravado that caused them to believe they could do whatever they wanted with women," the same juror explained. His years as a police officer convinced him, he said, that "nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls." The testimony of a Hispanic witness could be discounted because he was "an illegal," the juror asserted.

Such statements are not exactly the hallmarks of a fair trial. But no impeachment rules prevent Pena-Rodriguez from relying on those statements to challenge his conviction.

There's a good reason for such rules. They protect the confidentiality of the deliberation process and keep jurors from wondering if they will get caught up in years of litigation and appeals should they convict. But they also pose obvious problems when someone complains that the jury itself was so biased as to violate a defendant's Sixth Amendment rights.

Two years ago, Justice Sotomayor acknowledged as much, noting that "There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged." Today, Pena-Rodriguez argued that his was such a case.

Trying to Shape the Contours of a Possible Exception

When oral arguments began this morning, Chief Justice Roberts and Justice Alito both started off with a tone of skepticism. Jeffrey L. Fisher, arguing for Pena-Rodriguez, implored the court to adopt a standard already allowed in several states, to rule the no impeachment rules may be relaxed when there are claims that racial bias has denied a defendant an impartial jury.

"What about religious bias?" the Chief Justice immediately asked, when "it's not, you know, this is how Mexicans act. It's this is how Catholics or Jews act, so they're obviously guilty."

How could the Court "distinguish religion from race" if "the next case involves religion," Justice Alito wondered. Or sexual orientation, as the Chief Justice offered later, or gender, as Justice Ginsburg proposed.

Justice Sotomayor seemed to answer for him. Why, "given the exceptions we've recognized since the 1800s that have said that race is the most pernicious thing in our justice system, why can't we limit this just to race," she wondered.

But Justice Sotomayor also acknowledged that the court was "afraid of opening the door" to endless challenges. Race-specific rules and the Fourteenth Amendment could limit the extent of the Court's decision, Fisher argued. Indeed, in the future, the court might choose to extend those protections to other categories, such as gender, Fisher said, pointing to Batson and its progeny.

Frederick R. Yarger, arguing for Colorado, said that existing safeguards like voir dire should be sufficient to protect against bias, but not many justices seemed to be enthusiastic about that argument.

Several members of the Court appeared ready to create at least some exception to no impeachment rules. Such an exception might be needed to "create a fairer system in general and one that will be perceived as such," Justice Breyer said. "If I could write it right, I think it would make sense."

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