Suggestion of overt racial bias allows for a look behind the curtain of jury deliberations

Katie Davis

Assistant District ­Attorney in Harris ­County

The no-impeachment-of-the-jury-verdict rule was created to prevent going behind verdicts and second-guessing decisions. Most jurisdictions, including Texas, do not recognize an exception to that rule. The Supreme Court of the United States has long recognized the substantial concerns of protecting jury deliberations from intrusive in-quiry, understanding that if attorneys could use juror testimony to attack verdicts, jurors could be subjected to harassment by a defeated party and the finality of the process would be disrupted. Courts have also cautioned that attempts to impeach a verdict could potentially destroy freedom of discussion and conference during deliberations and undermine jurors’ willingness to return an unpopular verdict. In a worst-case scenario, consistently questioning verdicts could potentially destroy the community’s trust in a system that relies on the decisions of laypeople.
    Although parties have asked the Supreme Court to look behind the curtain and question what occurred in deliberations based on past concerns of juror misconduct, the Court has repeatedly declined to do so. However, in the face of extreme racial bias, the Supreme Court of the United States recently re-examined the no-impeachment bar and carved out an exception, going against years of its own precedent in Pena-Rodriguez v. Colorado.

The underlying offense
The crimes occurred in 2007 in the women’s bathroom of a barn at a horseracing track in Colorado. The three victims—sisters aged 14, 15, and 16—lived in the barn with their parents and siblings; their father was a horse jockey. Miguel Pena-Rodriguez, a Hispanic man, was one of the horse keepers at the track and had also lived at the barn for about a week prior to the incident.
    One evening, the three sisters had been in the bathroom for about 15 minutes taking showers when Pena-Rodriguez walked in and asked if they wanted to party. The oldest sister demanded that he leave, but instead, Pena-Rodriguez turned out the lights. One of the sisters was able to escape the bathroom, but Pena-Rodriguez approached the other two girls. The sisters demanded that he turn on the lights, but he did not listen. In the dark, Pena-Rodriguez groped the two girls sexually. When the assault was over, the girls fled the bathroom and reported the incident to their parents.
    Pena-Rodriguez was charged with attempted sexual assault on a child, unlawful sexual contact, and harassment. After a three-day trial, the jury found him guilty of misdemeanor unlawful sexual contact and harassment but failed to reach a verdict on attempted sexual assault of a child. Pena-Rodriguez received two years of probation and was required to register as a sex offender.

After the verdict, Pena-Rodriguez’s attorney spoke with jurors. Two of them informed counsel that another juror, identified as Juror H.C., had allegedly made racially biased statements during deliberations. The trial court allowed counsel to obtain affidavits from the two jurors, who alleged H.C. said the following:
•    He “believed the defendant was guilty because, in [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.”
•    He stated his belief that Mexican men are physically controlling of women because of their sense of entitlement and further stated, “‘I think he did it because he’s Mexican, and Mexican men take whatever they want.’”
•    He explained that, in his experience, “Nine times out of 10, Mexican men were guilty of being aggressive toward women and young girls.”
•    He said that he did not find Pena-Rodriguez’s alibi witness credible because, among other things, the witness was “an illegal.” (In fact, the witness testified during trial that he was a legal resident of the United States.)
    Although the trial court acknowledged the alleged statements were biased, it did not allow defense counsel to ask jurors questions on the racial bias or the deliberations based on the no-impeachment of a jury verdict evidentiary rule, Colorado Rule of Evidence 606(b). The trial court additionally noted that none of the jurors expressed any reservations based on racial or any other bias during voir dire, despite being asked to inform the court of such bias. The court denied the motion for new trial.
    Both the court of appeals and the Colorado Supreme Court affirmed the trial court’s denial of the motion for new trial. The Colorado Supreme Court based its decision on prior precedent from the U.S. Supreme Court that up until that point had stood for the crucial principle that “protecting the secrecy of jury deliberations is of paramount importance in our justice system.” The U.S. Supreme Court granted certiorari.   

The SCOTUS decision
The Supreme Court ruled that there is an exception to the “no-impeachment rule” when a juror’s statements indicate that racial bias was a significant motivating factor in his finding of guilt, going against precedent holding otherwise. The majority decision, written by Justice Kennedy, found that the current no-impeachment rule has substantial merit because it provides stability and finality to verdicts, but it also found that the rule must yield when there is evidence that a juror has relied on racial stereotypes or prejudice to convict a defendant. The Court noted that racial bias is different from and more serious than past concerns in front of the Court and concluded that a “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is central premise of the Sixth Amendment trial right.”
    Before the no-impeachment bar can be set aside to allow further judicial inquiry, there must be a threshold 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. Whether the threshold showing has been satisfied is up to the discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.
    Justices Thomas and Alito both wrote dissents. Both justices felt that the majority had good intentions, but they were concerned that the Court has now pried open the door for more intrusions into jury deliberations, something that has always been closely guarded.

Going forward
While it is not clear exactly what meets the test, it is clear that Juror H.C.’s comments do. The Court emphasized that he used a dangerous racial stereotype to conclude that Pena-Rodriguez was guilty and that he encouraged others to convict on that basis. But the Court stressed, “Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry.” The Court left the mechanics of acquiring and presenting such evidence to the states and local court rules.
    It is important to keep in mind that the Court did not grant Pena-Rodriguez a new trial based on racial bias; rather, the Court held that all the jurors may be questioned about Juror H.C.’s comments during deliberations and the influence those comments had on the verdict in a new hearing on Pena-Rodriguez’s motion for new trial. Thus, 10 years after the verdict and two jurors brought the statements to defense counsel’s attention, all the jurors will be asked about their deliberations, the racial comments, and the effect those comments had on the verdict.  
    No one wants racial bias to have a role in determining defendants’ guilt, and prosecutors do not want guilty verdicts to be called into question years later, when memories are faulty or feelings could change, losing the sense of finality. So how can we prevent racial bias from sneaking up on our juries? The short answer is, it cannot always be prevented. As the Court noted, not many people are willing to admit to racial bias in front of others during voir dire, but voir dire is a starting place. Perhaps prosecutors should ask more direct questions to a venire when a potential concern of racial bias applies to a case. Perhaps the trial judge, as part of jury instructions, can ask for jurors to alert the court if racial bias is used in deliberations. Catching any concerns early would always be better than later; having jurors write affidavits regarding any potential bias concerns immediately could help keep memories straight after a potentially lengthy appellate process.
    But what happens when potential racial bias is not addressed immediately? It is possible that a juror could come forward alleging racial bias years after a verdict, and we could potentially be asking jurors to recall a discussion during deliberations from one, two, 10, or 20 years before. Memories can fade over time, and an off-handed comment or inconsequential remark could be interpreted differently years later. In a motion for new trial or a writ hearing, the trial court could find itself in the position of making credibility determinations of jurors, having to separate intentional, racially biased comments (like those in the Pena-Rodriguez case) from a juror’s off-handed comment that may have been misinterpreted.
    The biggest question that we, as lawyers, have after this case is, What happens when we look behind the curtain to question the deliberations on racial bias and learn of other issues? How far can the inquiry extend? Again, I do not know. This article may raise more questions than it answers, but this case is important for prosecutors to be aware of so that we can further attempt to limit racial bias on our juries, which calls our verdicts into question. The justices of the majority opinion seem sure that the Court’s holding will not raise a litany of issues; only time will tell if they are correct. Perhaps, though, this is another part of the burden we shoulder as prosecutors to ensure that justice is done and that someone is convicted because of the strength of the State’s evidence, rather than because of the color of his skin or nationality.

1 Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (March 6, 2017).

2  Like Texas’s Rule 606(b) and its federal counterpart, Colorado’s Rule 606(b) generally prohibits a juror from testifying as to any statement made during deliberations in a proceeding inquiring into the validity of the verdict. See Tex. R. Evid. 606(b); see also Fed. R. Evid. 606(b). The Colorado Rule reads as follows:

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

3  The trial court asked the panel through a written questionnaire and in the open courtroom to let the court know if there was anything about a potential juror that would make it difficult to be a fair juror. The court instructed prospective jurors to speak in private if they had any concerns about their impartiality.

4  Pena-Rodriguez v. People, 350 P.3d 287, 292, rev’d and remanded sub nom. Pena-Rodriguez v. Colorado, 580 U.S. ____ (2017) (citing Tanner v. United States, 483 U.S. 107, 119 (1987) and Warger v. Shauers, 135 S.Ct. 521, 528 (2014)).

5  Pena-Rodriguez, 137 S. Ct. at 869.

6  See Pena-Rodriguez, S. Ct. at 869.

7  Justice Thomas dissented separately but also joined Justice Alito’s dissent along with Chief Justice Roberts.

8  Pena-Rodriguez, S. Ct. at 869.

9  In Pena-Rodriguez we know that at least two affidavits were procured by the jurors who raised the concern to trial counsel.