Petition for Writ of Certiorari — Alejandro Hernandez-Delgado, Petitioner v. California

No. 18 - ______

IN THE SUPREME COURT OF THE UNITED STATES

___________

ALEJANDRO HERNANDEZ-DELGADO

Petitioner,

v.

THE STATE OF CALIFORNIA,

Respondent.

__________

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA, SIXTH APPELLATE DISTRICT

______________

PETITION FOR WRIT OF CERTIORARI

_____________

JAMES S. THOMSON

Counsel of Record

732 Addison Street, Suite A

Berkeley, California 94710

Telephone: (510) 525-9123

Attorney for Petitioner

ALEJANDRO HERNANDEZ-DELGADO

QUESTION PRESENTED

Petitioner is Salvadoran. During trial, petitioner argued to the jury that

Omar Ruiz or Jason Avendano—neither whom are Salvadoran—had committed the

crime.

Following the verdict, petitioner learned that one of his jurors had told the

other jurors during deliberations that petitioner was “more guilty” because “he was

from El Salvador [and] so many murderers come from El Salvador.” The juror said

that “people from El Salvador, that’s where the gangs start and that’s where—the

kind of scarier people originate from.”

Petitioner moved for a new trial. The trial court denied the motion because

the California Evidence Code forbids consideration of evidence “concerning the

mental processes” of a juror. Cal. Evid. Code §1150.

After petitioner’s trial, this Court held that rules against considering the

mental processes of jurors must be set aside with respect to “statements exhibiting

overt racial bias that cast serious doubt on the fairness and impartiality of the

jury’s deliberations and resulting verdict.” Peña-Rodriguez v. Colordado, 580 U.S.

___, 137 S.Ct. 855, 869 (2017).

On appeal, petitioner requested remand to the trial court for reconsideration

of his motion for new trial and further factual development in light of PeñaRodriguez. The court of appeal refused to remand the case.

This case presents the following question:

I.

What fact-finding procedures are required by the Sixth and Fourteenth

Amendments when a defendant makes a threshold showing that a juror

relied on racial stereotypes in reaching her verdict?

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

ii

TABLE OF CONTENTS

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A.

B.

Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.

Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2.

Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

3.

Motion for New Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4.

Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A.

The Lower Courts Are Split Regarding the Availability of Evidentiary

Hearings and Other Fact-Finding Procedures to Adjudicate Allegations

of Racial Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B.

This Case Is an Ideal Vehicle to Resolve the Question Unanswered by

Peña-Rodriguez—What Minimum Fact-Finding Procedures Are

Required to Address an Allegation of Racial Bias by a Juror . . . . . . . . . . . 11

C.

The Opinion Below is Contrary to this Court’s Precedents Regarding

the Need to Afford Litigants Adequate Fact-Finding Procedures in

Cases Alleging Juror Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

Ford v. Wainwright, 477 U.S. 399 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

McDonald v. Pless, 238 U.S. 264 (1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Morgan v. United States, 399 F.2d 93 (5th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . 9

Peña-Rodriguez v. Colorado, 580 U.S. ___, 137 S.Ct. 855 (2017) . . . . . . . . . . passim

Remmer v. United States, 347 U.S. 227 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Smith v. Phillips, 455 U.S. 209 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Birchette, 908 F.3d 50 (4th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 10

United States v. Robinson, 872 F.3d 760 (6th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 10

Wainwright v. Witt, 469 U.S. 412 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

STATE CASES

After Hour Welding, Inc. v. Laneil Mgmt. Co., 324 N.W.2d 686 (Wis. 1982) . . . . . . 9

Fisher v. State, 690 A. 2d (Del. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81 (Mo. 2010) . . . . . . . . . . . . . . . 8

Kittle v. United States, 65 A. 3d (D.C. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Hedgecock, 795 P.2d 1260 (Cal. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Solorio, 17 Cal. App. 5th 398 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Powell v. Allstate Ins. Co., 652 So. 2d 354 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . 9

Spencer v. State, 398 S.E.2d 179 (Ga. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

State v. Hunter, 463 S.E.2d 314 (S.C. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Santiago, 715 A.2d 1 (Conn. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FEDERAL STATUTE

28 U.S.C. §1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATE STATUTES

Cal. Evid. Code §1150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cal. Pen. Code §186.22(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Cal. Pen. Code §187(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Cal. Pen. Code §189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Cal. Pen. Code §12022.5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

OTHER AUTHORITY

27 C. Wright & V. Gold, Federal Practice and Procedure: Evidence

(2d Ed. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v

INDEX OF APPENDICES

Appendix A

Opinion, People v. Hernandez-Delgado, California Court of

Appeal, Sixth Appellate District Case No. H043755

(December 11, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Appendix B

Order Denying Petition for Rehearing, People v. HernandezDelgado, California Court of Appeal, Sixth Appellate District

Case No. H043755 (January 9, 2019) . . . . . . . . . . . . . . . . . . . . 41

Appendix C

Order Denying Petition for Review, People v. HernandezDelgado, California Supreme Court Case No. S253507

(March 13, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Appendix D

Transcript of Defense Investigator’s Interview with Juror

No. 4, People v. Hernandez-Delgado, Monterey County

Superior Court Case No. SS140200A (March 21, 2016) . . . . . 45

Appendix E

Trial Court Transcripts re Juror’s Racial Bias,

People v. Hernandez-Delgado, Monterey County

Superior Court Case No. SS140200A (May 26, 2016) . . . . . . . 64

vi

Petitioner, Alejandro Hernandez-Delgado, respectfully prays that a writ of

certiorari issue to review the judgment of the Court of Appeal of the State of

California, Sixth Appellate District.

OPINION BELOW

The opinion of the court of appeal, the highest state court to review the

merits, appears as Appendix A. The relevant ruling of the trial court appears as

Appendix E.

JURISDICTION

The court of appeal entered its opinion on December 11, 2018. Appendix A.

The court of appeal denied rehearing on January 9, 2019. Appendix B. The

California Supreme Court denied review on March 13, 2019. Appendix C. This

Court has jurisdiction pursuant to 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defence.

The Fourteenth Amendment to the United States Constitution provides (in

relevant part):

All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or enforce any law

1

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of life, liberty,

or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

A.

Trial

1.

Charges

Petitioner was charged with the “willful, deliberate, and premeditated

murder” of Antonio Garcia. Cal. Pen. Code §§187(a), 189; 1 CT 30–31.1 He was

alleged to have committed the crime for the “benefit of, at the direction of, or in

association with a Sureno Criminal Street Gang.” Cal. Pen. Code

§§186.22(b)(1)(c)186.22(b)(5). 1 CT 31. He was alleged to have personally used a

firearm. Cal. Pen. Code §12022.5(a); 1 CT 31.

Petitioner’s defense was that either Jason Avendano or Omar Ruiz had been

the shooter, not him. See 8 RT 2191–2214, 2219–2225 (defense closing argument);

id. at 2201 (“[Petitioner] got stuck holding the bag, because he wasn’t streetwise

enough to go get a deal.”); 10 RT 2715–2719 (further defense closing argument); and

id. at 2716 (“It is the defense position that probably Jason [Avendano] committed

this crime.”).

Mr. Avendano and Mr. Ruiz testified against petitioner. 5 RT 1246–1288

(Avendano); 5 RT 1319–1364 (Ruiz). Mr. Ruiz testified as part of a plea bargain for

which he received a nine-year sentence rather than face life in prison. 5 RT

1

The Clerk’s Transcript on appeal is abbreviated as “CT” and the Reporter’s

Transcript as “RT” throughout this petition.

2

1319–1320. Mr. Avendano was granted use immunity with respect to his

testimony.2 5 RT 1261–1262. Mr. Avendano had been assaulted by the victim in

the past. 5 RT 1286.

2.

Verdict

One day into deliberations, the jury requested clarification regarding the

instructions on accomplice testimony. 2 CT 343; 10 RT 2705. The parties presented

further argument regarding the instructions. 10 RT 2711–2719.

Later, the jury announced that it was unable to reach a verdict. 1 CT 190; 10

RT 2723. The jury was split nine to three. 10 RT 2723. The trial court stated that

it was “not prepared to find the jury hopelessly deadlocked . . . .” Id. The court

ordered the jury to continue deliberating. 10 RT 2724.

On the fourth day of deliberations, the jury found petitioner guilty of first

degree murder. 1 CT 194. The jury found that petitioner committed the crime for

the benefit of a criminal street gang and that he personally used a firearm. Id.

3.

Motion for New Trial

Following the verdict, a defense investigator met with Juror No. 4. 1 CT

206–207. The juror had been crying as the jury returned its verdict. 1 CT 206.

Juror No. 4 told the investigator that one of her fellow jurors “mention[ed] that the

fact that [petitioner] was from El Salvador, um, it made her feel he was more guilty

because that’s—so many murderers come from El Salvador[.]” 1 CT 222, Appendix

2

The court later read the jury a stipulation stating that the grant of

immunity was unnecessary because the statute of limitations had run. 6 RT 1693.

3

D at 52. Juror No. 4 said that the juror “made a comment about El Salvadorians

[sic] and that, um, people from El Salvador, that’s where the gangs start and that’s

where—the kind of scarier people originate from.” 1 CT 231, Appendix D at 61.

Petitioner filed a motion for new trial. 1 CT 209–214. A transcript of the

interview with Juror No. 4 was attached. 1 CT 216–232, Appendix D.

Petitioner argued that his constitutional rights to due process, a fair trial,

and an impartial jury had been violated. 1 CT 211–214. He alleged that he “did not

receive the legal benefit of twelve deliberating jurors[.]” 1 CT 212. He further

alleged that a juror made “prejudicial statements regarding [his] country of origin.”

1 CT 250. He argued that “[a] statement that a person from El Salvador is ‘violent’

and, therefore he is guilty, is an inadmissible piece of evidence that a juror may not

consider in his deliberation.” 1 CT 251. He requested a “formal hearing” to address

his allegations. 1 CT 250.

The trial court denied the motion. 1 CT 268; 15 RT; Appendix E. The court

found that it could not consider the allegation that one of petitioner’s jurors based

her verdict on racial stereotypes because of California’s rule against considering the

“mental processes and subjective reasoning of a juror.” 15 RT 4210; accord id. at

4206, 4208, 4213, Appendix E at 70, 72, 74, 77 (citing Cal. Evid. Code §1150).

4.

Sentence

The trial court sentenced petitioner to 50 years to life in prison. 1 CT 270.

B.

Appeal

Petitioner timely filed a notice of appeal. 1 CT 271. He argued that “the trial

4

court erred in denying the motion for a new trial.” Opening Brief at 73, Hernandez-

Delgado, Case No. H043755. Petitioner argued that remand was required “for a

determination as to whether the statement raised in [his] motion for new trial

warrants further investigation” in light of this Court’s opinion in Peña-Rodriguez.

Id. at 75–76.

Respondent argued that petitioner could not show prejudice because—per

Juror No. 4—the other jurors told the offending juror that she “can’t use that” in

response to her comments about Salvadorans. Respondent’s Brief at 43,

Hernandez-Delgado, Case No. H043755 (citing CT 222, Appendix D at 52).

Petitioner argued in reply that respondent’s argument demonstrated the

need for further factual development: “[A]ny argument that the juror who made the

racially biased remark did not go on to rely on that bias in reaching her verdict is

purely speculative due to the trial court’s refusal to permit evidence regarding the

jurors’ mental processes.” Reply Brief at 33, Hernandez-Delgado, Case No.

H043755. Petitioner argued that “[h]ad such an investigation properly been

permitted, the juror may well have admitted to relying on her expressed prejudice

toward Salvadorans in reaching her verdict.” Id. at 33–34.

The court of appeal denied the appeal. Appendix A. The court assumed that

the juror’s remark was admissible and “that it constituted misconduct[.]” Opinion

at 34, Appendix A at 35. Rather than remand for a hearing or further factual

development to determine whether petitioner was prejudiced by the juror’s

consideration of his Salvadoran heritage, the court found that there was “no

5

substantial likelihood that [petitioner] suffered actual harm . . . .” Opinion at 35,

Appendix A at 36. The court found that “[w]hile improper, the El Salvador

comment was brief, and the juror was immediately reprimanded by other jurors,

who said, ‘“You can’t use that.”’” Id. (quoting CT 222, Appendix D at 52). The court

necessarily held that further factual proceedings were unnecessary to conclude that

petitioner was not prejudiced by the juror’s professed bias against Salvadorans.

Petitioner sought rehearing. He argued that the court of appeal “should

grant rehearing regarding [his] claim under the Supreme Court’s opinion in Peña-

Rodriguez v. Colorado.” Petition for Rehearing at 22, Hernandez-Delgado, Case No.

H043755. Petitioner argued that the court “ignore[d] the emphasis that the

Supreme Court placed on the trial court’s discretion” by failing to remand for a

hearing. Id. at 24. The court denied rehearing. Appendix B.

Petitioner raised his arguments before the California Supreme Court.

Petition for Review at 9–17, People v. Hernandez-Delgado, California Supreme

Court Case No. S253507; see also id. at 12 (“[T]here were material disputes that

could only be resolved by a hearing. Most significantly, there was a dispute as to

whether the juror who made the improper remark about petitioner’s Salvadoran

heritage was affected by her prejudice in reaching a verdict.”), and 13 (“Remand for

a hearing is necessary.”). The court denied review. Appendix C.

REASONS FOR GRANTING THE WRIT

“The jury is a central foundation of our justice system and our democracy.”

Peña-Rodriguez v. Colorado, 580 U.S. ___, 137 S.Ct. 855, 860 (2017). “[R]acial

6

discrimination in the jury system pose[s] a particular threat both to the promise of

the [Fourteenth] Amendment and to the integrity of the jury trial.” Id. at 867.

Accordingly, this Court has held 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 a central premise of the Sixth Amendment trial right.”

Id. at 869.

In Peña-Rodriguez, this Court articulated the “constitutional rule” in the

following terms: “[W]here a juror makes a clear statement that indicates he or she

relied on racial stereotypes or animus to convict a criminal defendant, the Sixth

Amendment requires that the no-impeachment rule give way in order to permit the

trial court to consider the evidence of the juror’s statement and any resulting denial

of the jury trial guarantee.” Peña-Rodriguez, 137 S.Ct. at 869. The Court

“committed to the substantial discretion of the trial court” the determination

whether this threshold had been reached. Id.

The Court in Peña-Rodriguez noted that there is a “divergence of authority

over the necessity and scope of an evidentiary hearing on alleged juror misconduct.”

Peña-Rodriguez, 137 S.Ct. at 870 (citing 27 C. Wright & V. Gold, Federal Practice

and Procedure: Evidence § 6076, pp. 575–578 (2d Ed. 2007)). However, the Peña-

Rodriguez case “d[id] not ask, and the Court [did not] need [to] address, what

procedures a trial court must follow when confronted with a motion for a new trial

based on juror testimony of racial bias.” Id. Petitioner’s case reveals the need for

7

the Court to address that very topic.

This Court should grant the petition for writ of certiorari because the lower

courts are split, and many have interpreted Peña-Rodriguez in a manner that saps

the opinion of its needed strength. The failure to remand for factual development

below further contravenes this Court’s precedents. This Court should grant the

petition because “a state court . . . has decided an important question of federal law

in a way that conflicts with relevant decisions of this Court.” Sup. Ct. R. 10(c).

A.

The Lower Courts Are Split Regarding the Availability of Evidentiary

Hearings and Other Fact-Finding Procedures to Adjudicate Allegations of

Racial Bias.

The opinion below is the latest example in a growing split in authority

regarding the need for investigation into allegations of racial bias in the jury. Many

courts, including the court below, have placed significant limitations on the right of

defendants to investigate and ultimately prove their allegations that racial bias

impacted the verdicts in their cases. These limitations threaten to undermine this

Court’s holding that racial bias is a “familiar and recurring evil that, if left

unaddressed, would risk systemic injury to the administration of justice.” Peña-

Rodriguez, 137 S.Ct. at 868.

The states that already had a racial-bias exception to the no-impeachment

rule before Peña-Rodriguez was decided are split regarding the need for further

fact-finding procedures. Many of these states require an evidentiary hearing

whenever a credible allegation of racial bias is raised.

The Connecticut Supreme Court requires “direct questioning of the juror

8

alleged to have made the prejudicial comments” in cases involving “alleged ethnic

references to a criminal defendant by a juror . . . .” State v. Santiago, 715 A.2d 1, 21

(Conn. 1998). Similarly, the Missouri Supreme Court has held that “if a party files

a motion for a new trial alleging there were statements reflecting ethnic or religious

bias or prejudice made by a juror during deliberations, the trial court should hold

an evidentiary hearing to determine whether any such statements occurred.”

Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 89 (Mo. 2010).

The South Carolina Supreme Court has held that when “a juror claims

prejudice played a role in determining the guilt or innocence of a defendant,

investigation into the matter is necessary. To hold otherwise would violate ‘the

plainest principles of justice.’” State v. Hunter, 463 S.E.2d 314, 316 (S.C. 1995)

(quoting McDonald v. Pless, 238 U.S. 264, 269 (1915)). The Wisconsin Supreme

Court has held that “[w]henever it comes to a trial court’s attention that a jury

verdict may have been the result of any form of prejudice based on race, religion,

gender or national origin, judges should be especially sensitive to such allegations

and conduct an investigation to ‘ferret out the truth.’” After Hour Welding, Inc. v.

Laneil Mgmt. Co., 324 N.W.2d 686, 690 (Wis. 1982) (quoting Morgan v. United

States, 399 F.2d 93, 97 (5th Cir. 1968)). And the Florida Supreme Court has

remanded for a more robust hearing where the trial court denied a motion for a new

trial after only interviewing the juror who accused other jurors of bias. Powell v.

Allstate Ins. Co., 652 So. 2d 354 (Fla. 1995).

In contrast, the District of Columbia hews closer to the court of appeal below

9

and allows for credible, but otherwise unproven, allegations of racial bias to be

dismissed summarily. See Kittle v. United States, 65 A. 3d 1144, 1157 (D.C. 2003)

(“Nor do we conclude that the trial judge erred or abused her discretion by declining

to hold a hearing and admit juror testimony.”). So too does Georgia. Spencer v.

State, 398 S.E.2d 179, 185 (Ga. 1990) (“[A]ssuming the truth of the affidavit, it

shows only that two of the twelve jurors possessed some racial prejudice and does

not establish that racial prejudice caused those two jurors to vote to convict Spencer

and sentence him to die. The trial court did not err by refusing to consider the

affidavit.”). California has now joined those states in finding that factual

investigation is unnecessary in cases involving credible allegations of racial bias.

This Court should grant certiorari and hold otherwise.

The federal courts are also fractured. The Fourth Circuit has upheld the

denial of a request to even contact the jurors regarding a credible claim of racial

bias. United States v. Birchette, 908 F.3d 50, 55 (4th Cir. 2018), petition for writ of

certiorari docketed in Birchette v. United States, U.S. Case No. 17-4450. In

contrast, in the Ninth Circuit, an evidentiary hearing is required whenever a

“colorable claim” of juror bias is raised. Dyer v. Calderon, 151 F.3d 970, 974 (9th

Cir. 1998).

Moreover, a recent opinion in the Sixth Circuit interpreting Peña-Rodriguez

generated a dissenting opinion over the propriety of further factual development.

The majority found that certain remarks by the jury foreperson “clearly indicated

racial bias or hostility,” but found that they did not constitute a “clear statement”

10

that the bias was a “significant motivating factor in [the juror’s] vote to convict.”

United States v. Robinson, 872 F.3d 760, 771 (6th Cir. 2017) (quotations omitted).

In dissent, Circuit Judge Bernice B. Donald stated that “the evidence of racial

animus and harassment presented by Defendants . . . created reasonable grounds to

doubt the validity of the jury verdict. I would remand this case to the district court

for, at a minimum, an evidentiary hearing on Defendants’ claims.” Id. at 789. This

discord reveals the need for more clear standards from this Court describing when,

and which, fact-finding procedures are proper.

The experience of Lewis Fisher reveals the need for factual development in

cases involving credible allegations of racial bias by the jury. Fisher v. State, 690 A.

2d 917 (Del. 1996). Fisher’s original motion for a new trial based on racial bias was

“denied summarily” by the trial court. Id. at 918. On appeal, the Delaware

Supreme Court “concluded that the absence of a hearing, on the allegation that the

issue of race was improperly considered by one or more jurors, precluded it from

effectively reviewing Fisher’s ‘fair trial’ claim. Accordingly, th[e] matter was

remanded to the Superior Court for a hearing.” Id. Following a hearing, the trial

court concluded “that Fisher was convicted by less than twelve impartial jurors”

and granted a new trial. Id. Further factual development was necessary to

ascertain effectively whether racial bias played a significant role in the jury’s

verdict once a credible allegation has been raised.

This Court’s precedents further reveal the need for fact-finding procedures in

cases of alleged racial bias. In referring to racial bias in the administration of

11

justice, this Court has held that “[s]ome toxins can be deadly in small doses.” Buck

v. Davis, 580 U.S. ___, 137 S.Ct. 759, 777 (2017). The Court was crystal clear: “it is

inappropriate to allow race to be considered as a factor in our criminal justice

system.” Id. at 778. And the Court in Peña-Rodriguez held that “[i]t 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.” Peña-Rodriguez, 137

S.Ct. at 867. These principles are incompatible with the limitations on evidentiary

development created by the decision below and the decisions in other courts.

B.

This Case Is an Ideal Vehicle to Resolve the Question Unanswered by PeñaRodriguez—What Minimum Fact-Finding Procedures Are Required to

Address an Allegation of Racial Bias by a Juror.

This case is a perfect vehicle to address “what procedures a trial court must

follow when confronted with a motion for a new trial based on juror testimony of

racial bias.” Peña-Rodriguez, 137 S.Ct. at 870. Trial counsel requested further

factual development in the motion for a new trial. 1 CT 250 (“Defendant is making

a basic showing so that he can ask this court for a formal hearing.”). Petitioner

argued on appeal that further factual development was necessary. Reply Brief at

33–34 (“Had such an investigation properly been permitted, the juror may well have

admitted to relying on her expressed prejudice toward Salvadorans in reaching her

verdict.”); Petition for Rehearing at 25 (“[T]he question is not whether the evidence

contained in Juror No. 4’s declaration was sufficient to sustain the motion for a new

trial. Rather, the question is whether it was sufficient to warrant [an evidentiary]

hearing. The plain answer is yes.”). The issue of whether fact-finding procedures

12

are required is therefore “timely and properly raised . . . .” Sup. Ct. R. 10(g)(I).

The court of appeal’s opinion cleanly presents the question of whether and

when fact-finding procedures are required. The court assumed that the juror’s

statements regarding petitioner’s Salvadoran heritage were admissible, that the

statements were improper, and that prejudice would therefore be presumed.

Opinion at 34, Appendix A at 35. Nevertheless, the court denied relief after finding

that the presumption of prejudice was rebutted on the record below—a record

generated without an evidentiary hearing or other fact-finding procedure. Opinion

at 34–35, Appendix A at 35–36. This legal posture would allow the Court to address

squarely the circumstances in which further factual development is required to

adjudicate a credible allegation of racial bias.

Furthermore, the risk that racial bias affected the verdict was particularly

strong here. The case was close, and the jury initially deadlocked 9-3. 10 RT 2721.

The case turned on whether the jury believed Jason Avendano and Omar Ruiz that

it was petitioner—and not one of them—who shot Antonio Garcia. The jury’s

request for further instruction regarding accomplice testimony shows that they had

serious questions about the credibility of Mr. Avendano and Mr. Ruiz. 2 CT 343; 10

RT 2705. The jury heard Mr. Ruiz testify that he was Mexican. 5 RT 1339. The

offending juror plainly knew that petitioner was Salvadoran. Thus, when deciding

whether Mr. Ruiz or petitioner was more likely to have committed the crime, the

juror’s belief that “so many murderers come from El Salvador” and that “the kind of

scarier people originate from [there]” would have inevitably affected her

13

determination that it was petitioner who shot Mr. Garcia. 1 CT 222, 231, Appendix

D at 52, 61. The statement may have affected other jurors as well.

Because the issue is cleanly presented, and because petitioner has a strong

case that he was prejudiced, this case presents an ideal opportunity to decide what

kind, and under what circumstances, fact-finding procedures are required to

address an allegation that a juror relied on racial stereotypes in reaching a verdict.

C.

The Opinion Below is Contrary to this Court’s Precedents Regarding the

Need to Afford Litigants Adequate Fact-Finding Procedures in Cases

Alleging Juror Bias.

“This Court has long held that the remedy for allegations of juror partiality is

a hearing in which the defendant has the opportunity to prove actual bias.” Smith

v. Phillips, 455 U.S. 209, 215 (1982). Petitioner was denied such a hearing in this

case because of the trial court’s improper application of California’s rule that “no

evidence is admissible which relates solely to the mental processes and subjective

reasoning of a juror.” 15 RT 4210, Appendix E at 74; accord 15 RT 4206, Appendix

E at 70 (“[T]he portions of the interview that has to do with the mental processes of

[the jurors] would not be admissible . . . under Evidence Code Section 1150.”); and

15 RT 4208, Appendix E at 72 (“[Defense counsel is] asking [the court] to go into the

mental processes of jurors to determine what they were thinking when they came to

their verdict, which the Court’s really prohibited from doing.”).

Had the trial court known that it could consider the jurors’ mental processes

as they pertained to racial bias, it would have considered whether to grant

petitioner a Hedgecock hearing: “[W]hen a new trial motion in a criminal case is

14

based on allegations of juror misconduct, the trial court may conduct an evidentiary

hearing to determine the truth of the allegations.” People v. Hedgecock, 795 P.2d

1260, 1272 (Cal. 1990); see also People v. Solorio, 17 Cal. App. 5th 398, 403–404

(2017) (recounting trial court’s decision to hold Hedgecock hearing at which court

“subpoenaed all 12 jurors to testify and followed a script, asking jurors if they

recalled whether the topic came up, if they participated and how many participated

in those discussions, how long the discussions were, and whether jurors were

admonished”). A Hedgecock hearing is held whenever “the trial court, in its

discretion, concludes that an evidentiary hearing is necessary to resolve material,

disputed issues of fact.” Hedgecock, 795 P.2d at 1272.

Here, there were material disputes that could only be resolved at a

Hedgecock hearing or through an analogous fact-finding procedure. Most

significantly, there was a dispute as to whether the juror who made the improper

remark about petitioner’s Salvadoran heritage was affected by her prejudice in

reaching the verdict. The prosecutor argued that “the juror says any statement that

she deemed to be prejudicial was immediately corrected by the group. . . . Juror No.

4 states that ‘No one used prejudice or the defendant’s appearance in reaching their

verdict.’” 15 RT 4207, Appendix E at 71. Trial counsel responded that “to say that

something was said and then somehow [Juror No. 4] can vouch for [the other

juror’s] thinking that it was corrected, that is just completely illogical. We have no

way of knowing.” 15 RT 4208, Appendix E at 72; accord 1 CT 250 (“The idea that

these statements were quickly dismissed without any impact on the verdict is

15

unrealistic.”). But the trial court never attempted to resolve these material

disputes because of its erroneous belief that it lacked discretion to consider the

mental processes of the juror in question. 15 RT 4208, Appendix E at 72.

The court of appeal denied the trial court the opportunity to exercise its

discretion to consider petitioner’s allegation of juror bias anew in light of Peña-

Rodriguez. The court assumed that the juror’s statement was admissible and

assumed that the juror committed misconduct. Opinion at 34, Appendix A at 35.

Nevertheless, the court denied petitioner’s request for further factual development

in the trial court. Opinion at 35, Appendix A at 36. The court found that “[h]aving

reviewed the entire record . . . there is no substantial likelihood that [petitioner]

suffered actual harm.” Id. The holding necessarily rejected petitioner’s argument

that it was impossible to know whether the offending juror relied on her professed

bias against Salvadorans without further factual development.

This Court’s precedents teach that some kind of fact-finding procedure was

necessary to determine whether petitioner suffered harm from the juror’s alleged

racial bias. Petitioner’s case is similar to Remmer v. United States, 347 U.S. 227

(1954). There, Remmer “learned for the first time [after the jury returned its

verdict] that during the trial a person unnamed had communicated with a certain

juror, who afterwards became the jury foreman, and remarked to him that he could

profit by bringing in a verdict favorable to the petitioner.” Id. at 228. Remmer

raised these facts “in a motion for a new trial, together with an allegation that [he]

was substantially prejudiced, thereby depriving him of a fair trial, and a request for

16

a hearing to determine the circumstances surrounding the incident and its effect on

the jury.” Id. As here, the trial court in Remmer “denied the motion for a new trial

. . . without holding the requested hearing[.]” Id. at 229. And the appellate court in

Remmer “held that the [trial court] had not abused its discretion, since the

petitioner had shown no prejudice to him.” Id.

This Court held that further factual development was necessary to determine

whether Remmer was prejudiced by the alleged juror bias: “We do not know from

this record, nor does the petitioner know, what actually transpired, or whether the

incidents that may have occurred were harmful or harmless.” Remmer, 347 U.S. at

229. The Court held that “[t]he trial court should not decide and take final action

ex parte on information such as was received in this case, but should determine the

circumstances, the impact thereof upon the juror, and whether or not it was

prejudicial, in a hearing with all interested parties permitted to participate.” Id. at

229–230. The Court remanded to the trial court with directions to hold such a

hearing. Id. at 230.

The court of appeal here contravened Remmer, and numerous other

principles, by denying petitioner relief without remanding for factual development

in the trial court. “If there is one fundamental requisite of due process, it is that an

individual is entitled to an opportunity to be heard.” Ford v. Wainwright, 477 U.S.

399, 424 (1986) (quotation and citation omitted). “Where juror misconduct or bias is

credibly alleged, the trial judge cannot wait for defense counsel to spoon feed him

every bit of information which would make out a case of juror bias; rather, the judge

17

has an independent responsibility to satisfy himself that the allegation of bias is

unfounded.” Dyer v. Calderon, 151 F.3d 970, 978 (9th Cir. 1998). “The trial

judge[‘s] predominant function in determining juror bias involves credibility

findings whose basis cannot be easily discerned from an appellate record.”

Wainwright v. Witt, 469 U.S. 412, 429 (1985).

Under these precedents, remand was required. The juror’s statement

regarding petitioner’s Salvadoran heritage directly related to a propensity to join

gangs. 1 CT 231 (“[P]eople from El Salvador, that’s where the gangs start and

that’s where—the kind of scarier people originate from.”). Given the significant role

that gang violence played in this case, that fact alone is enough to warrant further

probing. And contrary to the court of appeal’s holding, the record was insufficient

to conclude that petitioner had not been prejudiced. Juror No. 4, and by extension

the court, had no way of knowing whether the other juror’s expressed bias against

Salvadorans affected the ultimate verdict. And trial counsel was improperly

prevented from developing evidence related to that factual issue by the trial court’s

application of the non-impeachment rule. 15 RT 4206, 4208, 4210, 4213, Appendix

E at 70, 72, 74, 77.

This Court should grant the petition for writ of certiorari because the court of

appeal “has decided an important federal question”—whether and when further

factual development is required to address a credible allegation of racial bias by a

juror—“in a way that conflicts with relevant decisions of this Court.” Sup. Ct. R.

10(c).

18

CONCLUSION

Review of the decision below is necessary to resolve a longstanding conflict in

the lower courts regarding when further factual development is required to address

allegations that a juror relied on racial stereotypes in reaching her verdict. This

case presents the ideal opportunity for this Court to settle that conflict, which it

explicitly left unanswered in Peña-Rodriguez. Peña-Rodriguez, 137 S.Ct. at 870.

Accordingly, petitioner respectfully requests that the Petition for Writ of

Certiorari be granted.

DATED: June 8, 2019

Respectfully submitted,

JAMES S. THOMSON

Attorney for Petitioner

ALEJANDRO HERNANDEZ-DELGADO

Counsel of Record

19

CERTIFICATE OF COMPLIANCE

PURSUANT TO Sup. Ct. R. 33.2(b)

Case No. 18 - __________

I certify that the foregoing petition for writ of certiorari is proportionally

spaced, has a typeface of 12 points, is in Century font, is double-spaced, and is 18

pages long.

___________________

JAMES S. THOMSON