Reply Brief — Alejandro Hernandez-Delgado, Petitioner v. California

No. 18 - 9665

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

______________

REPLY TO BRIEF IN OPPOSITION TO

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

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

THE QUESTION OF WHAT FACT-FINDING PROCEDURES ARE

REQUIRED WHEN A DEFENDANT MAKES A THRESHOLD

SHOWING THAT A JUROR RELIED ON RACIAL STEREOTYPES IN

REACHING HER VERDICT IS PRESENTED BY THE OPINION

BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

THE QUESTION PRESENTED WOULD NOT BENEFIT FROM

FURTHER PERCOLATION IN THE LOWER COURTS . . . . . . . . . . . . . . . . 3

III.

FURTHER FACTUAL DEVELOPMENT WAS NECESSARY TO

DETERMINE WHETHER THE OFFENDING JUROR RELIED ON

RACIAL STEREOTYPES IN REACHING HER VERDICT . . . . . . . . . . . . . . 5

IV.

THIS COURT’S PRIOR DECISIONS REFLECT THE NEED FOR

FURTHER FACTUAL DEVELOPMENT IN THIS CASE . . . . . . . . . . . . . . . 6

V.

THE SPLITS IN AUTHORITY DEMONSTRATE THE NEED FOR

THIS COURT’S REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A.

The Split in the State Courts Regarding the Scope of Necessary

Fact-Finding in the Face of Credible Allegations of Racial Bias

Is Based on Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B.

The Federal Courts Are Split Regarding the Scope of Necessary

Fact-Finding in the Face of Credible Allegations of Racial Bias . . . . 11

C.

This Court Should Settle the Important Federal Question of What

Level of Fact-Finding Procedures Must Be Provided in Response

to a Credible Allegation of Racial Bias . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

i

TABLE OF AUTHORITIES

FEDERAL CASES

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) . . . . . . . . . . . . . . . . . . . . . 4

Batson v. Kentucky, 476 U.S. 79 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

Davis v. Ayala, 576 U.S. ___, 135 S.Ct. 2187 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 15

Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 7

Ford v. Wainwright, 477 U.S. 399 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 14

McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

McDonald v. Pless, 238 U.S. 264 (1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Morgan v. United States, 399 F.2d 93 (5th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . 8

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

Remmer v. United States, 347 U.S. 227 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rose v. Mitchell, 443 U.S. 545 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sims v. Rowland, 414 F.3d 1148 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Smith v. Phillips, 455 U.S. 209 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

Tracey v. Palmateer, 341 F.3d 1037 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 11, 12

United States v. Birchette, 908 F.3d 50 (4th Cir. 2018) . . . . . . . . . . . . . . . . . . . 4, 13

United States v. Heller, 785 F.2d 1524 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Robinson, 872 F.3d 760 (6th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 13

United States v. Smith, 424 F.3d 992 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 11, 12

ii

Williams v. Taylor, 529 U.S. 420 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATE CASES

After Hour Welding, Inc. v. Laneil Mgmt. Co., 324 N.W.2d 686 (Wis. 1982) . . . . 8, 9

Fisher v. State, 690 A.2d (Del. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81 (Mo. 2010) . . . . . . . . . . . . . . . 9

Kittle v. United States, 65 A.3d (D.C. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10

People v. Hedgecock, 51 Cal. 3d 395 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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

Spencer v. State, 398 S.E.2d 179 (Ga. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Berhe, 444 P.3d 1172 (Wash. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

State v. Hunter, 463 S.E.2d 314 (S.C. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

State v. Santiago, 715 A.2d 1, 21 (Conn. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

FEDERAL STATUTE AND CONSTITUTION

28 U.S.C. §2254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Const amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STATE STATUTE

Cal. Evid. Code §1150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

iii

INTRODUCTION

A juror professed her belief to fellow jurors that petitioner was “more guilty

because” he “was from El Salvador” and “so many murderers come from El

Salvador[.]” App. D-52. She said that “people from El Salvador, that’s where the

gangs start and that’s where—the kind of scarier people originate from.” App. D-62.

Petitioner has now presented this evidence to three courts—the trial court,

the court of appeal, and the California Supreme Court. He has asked each court for

further factual development to determine whether the offending juror ultimately

relied on her professed racial stereotypes in reaching her verdict and whether her

statements affected other jurors. Each court has denied petitioner’s request.

The trial court said no because it believed that it was “prohibited” under

state law from considering “the mental processes of jurors to determine what they

were thinking when they came to their verdict[.]” App. E-72 (relying on Cal. Evid.

Code §1150). This Court has since clarified that state laws preventing such

consideration must give way when credible allegations of racial bias are involved.

Peña-Rodriguez v. Colorado, 580 U.S. ___, 137 S.Ct. 855, 869 (2017).

Notwithstanding Peña-Rodriguez, the court of appeal said no because it

found that there was “no substantial likelihood that [petitioner] suffered actual

harm” based on the offending juror’s statements. App. A-36. The court necessarily

held that the existing record was sufficiently developed for it to reach its conclusion

that petitioner had not been prejudiced. And the California Supreme Court said no

by silently affirming the court of appeal. App. C-44.

1

All told, petitioner has been thrice denied the opportunity to ascertain

whether the offending juror relied on her professed belief that he was “more guilty”

because “he was from El Salvador” in reaching her verdict. He has been denied the

opportunity to ascertain whether her professed belief affected her fellow jurors.

This case directly presents the question of what fact-finding procedures are

required when a defendant makes a threshold showing of racial bias by a juror.

This Court’s caselaw shows that more is required than petitioner received. This

Court should grant the petition. Sup. Ct. R. 10(c).

ARGUMENT

I.

THE QUESTION OF WHAT FACT-FINDING PROCEDURES ARE

REQUIRED WHEN A DEFENDANT MAKES A THRESHOLD SHOWING

THAT A JUROR RELIED ON RACIAL STEREOTYPES IN REACHING

HER VERDICT IS PRESENTED BY THE OPINION BELOW.

The State asserts that the “issue framed in the petition is . . . not well

presented in this case.” BIO 12; accord BIO 5. The State is wrong.

The court of appeal framed the question as whether it should “remand the

matter so the trial court can consider Juror No. 4’s statements in light of Pena-

Rodriguez.” App. A-31.1 This framing was consistent with the briefing, in which

petitioner argued that “further probing” was required based on Peña-Rodriguez and

asked the court to “remand the case to the trial court for a determination as to

wether the [juror’s] statement [that appellant was more guilty because of his

Salvadoran heritage] warrants further consideration.” AOB 75–76.

1

Juror No. 4 is not the offending juror. Juror No. 4 is the juror who reported

the offending juror’s statements to defense counsel. App. D.

2

The court denied petitioner’s arguments because it found—having “reviewed

the entire record”—that “there is no substantial likelihood that [petitioner] suffered

actual harm.” App. A-36 (citation omitted). Inherent in this finding was an implicit

finding that the existing record was sufficient to make such a determination. After

all, a defendant suffers prejudice if even a single juror relies on racial stereotypes in

reaching a verdict. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998).

The court of appeal’s conclusion that the record was sufficient to determine

whether the offending juror relied on racial stereotypes in reaching her verdict is

the subject of the instant petition. Whether explicit or implicit, the court of appeal’s

opinion addresses the question presented: “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?”2

II.

THE QUESTION PRESENTED WOULD NOT BENEFIT FROM FURTHER

PERCOLATION IN THE LOWER COURTS.

The State argues that “any consideration by this Court of the broader legal

question presented in the petition would benefit from further percolation in the

lower courts.” BIO 13. Not so.

This Court has acknowledged that the “unhappy persistence of both the

2

The court’s denial of rehearing addressed the question as well. Petitioner

argued that it was “error under . . . federal . . . law” for the court to deny his appeal

“using the traditional state test for juror misconduct claims.” Petition for

Rehearing at 22. He argued that the court’s analysis was “flawed” because “it

prevent[ed] the type of factual development that would have occurred below if not

for the trial court’s refusal to consider evidence regarding the mental processes of

the jurors.” Petition for Rehearing at 24. By denying rehearing, the court of appeal

expressly rejected these arguments.

3

practice and the lingering effects of racial discrimination against minority groups in

this country is an unfortunate reality.” Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 237 (1995). The reality is that defendants are, and will continue to be,

convicted by jurors on the basis of racial stereotypes rather than the quality of the

evidence against them. This Court has recognized that fighting against racial

discrimination in the legal system requires “unceasing efforts.” Batson v.

Kentucky, 476 U.S. 79, 85 (1986). Those unceasing efforts must include the

promulgation of guidelines describing what fact-finding procedures are required

when a defendant makes a threshold showing that a juror relied on racial

stereotypes in reaching her verdict.

The cases cited in the petition demonstrate that, right now, defendants

across the country are being provided with varying levels of support in developing

credible allegations of racial bias. Many, including petitioner, are being denied

basic fact-finding procedures such as the ability to communicate with jurors and the

right to an evidentiary hearing. See, e.g., United States v. Birchette, 908 F.3d 50,

55 (4th Cir. 2018) (right to interview jurors); and Kittle v. United States, 65 A.3d

1144, 1157 (D.C. 2003) (right to evidentiary hearing). And lack of access to factfinding procedures can, and has, prevented defendants from proving meritorious

claims of juror bias. See, e.g., Fisher v. State, 690 A.2d 917 (Del. 1996) (allegation

of juror bias initially denied without hearing, but granted after hearing held on

remand). This Court should settle the law now, before more defendants are

harmed.

4

The State argues that “this Court in Peña-Rodriguez declined to address the

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

based on juror testimony of racial bias.’” BIO 13 (quoting Peña-Rodriguez, 137 S.

Ct. at 870). But the question presented here was not before this Court in Peña-

Rodriguez: “This case does not ask, and the Court need not 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. This

case asks that question. This Court should grant certiorari to settle it.

III.

FURTHER FACTUAL DEVELOPMENT WAS NECESSARY TO

DETERMINE WHETHER THE OFFENDING JUROR RELIED ON RACIAL

STEREOTYPES IN REACHING HER VERDICT.

The State acknowledges that although “further factual development may

have given the trial court a fuller picture of statements made in the jury room, it

was not unreasonable for the court of appeal to conclude that additional proceedings

were unwarranted in light of the record before it[.]” BIO 7. The State ignores the

unique danger presented by the infiltration of racial bias into jury deliberations.

That the offending juror was reprimanded by her fellow jurors does not show

that she did not rely on her prejudice in reaching a verdict. It only shows that she

learned she would receive a negative response if she continued to express her views.

Juror No. 4 could not vouch for what went on inside the offending juror’s mind after

she made the statement. Only further fact-finding could reveal whether she relied

on her professed bias. Only further fact-finding could reveal whether other jurors

were influenced by her remarks and relied on them in reaching their own verdicts.

5

Indeed, Juror No. 4 likely underplayed the seriousness of the offending

juror’s conduct. There is a “stigma that attends racial bias [that] may make it

difficult for a juror to report inappropriate statements during . . . deliberations. It

is one thing to accuse a fellow juror of having a personal experience that improperly

influences her consideration of the case . . . . It is quite another to call her a bigot.”

Peña-Rodriguez, 137 S.Ct. at 869. Without further fact-finding, it is impossible to

know whether petitioner was convicted by an impartial jury.

IV.

THIS COURT’S PRIOR DECISIONS REFLECT THE NEED FOR

FURTHER FACTUAL DEVELOPMENT IN THIS CASE.

The State argues that “the court of appeal’s decision to resolve petitioner’s

claim without a further hearing does not conflict with this Court’s decision in

Remmer v. United States, 347 U.S. 227 (1954).” BIO 8. Not so. The principles

underlying Remmer apply here. See Dyer, 151 F.3d at 974 (citing Remmer for

general principles regarding necessity of evidentiary hearing).

The State argues that “Remmer hearings are unique to the tampering

context, where the potential effect on the jury is severe.” BIO 8 n.3. The State’s

argument fails to distinguish Remmer in the context of racial bias: “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. Referring to racial

bias, the 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). Remmer simply cannot be

distinguished on the basis of the severity of the effect on the jury in the context of

an allegation of racial bias.

6

The State argues that Smith v. Phillips, 455 U.S. 209 (1982) “held only that a

Remmer hearing is sufficient to address an allegation of juror bias, not that it is

always necessary.” BIO 8 n.3. Smith is not so limited. See Dyer, 151 F.3d at 974–

975 (citing Smith for general principles regarding necessity of evidentiary hearing).

“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,

455 U.S. at 215. The Court provided Remmer as an “example” of this long-held

practice. Id. The Court has cited Smith outside the context of jury tampering. See,

e.g., Williams v. Taylor, 529 U.S. 420, 444 (2000) (citing Smith in case involving

allegation that juror concealed bias at voir dire). Smith supports petitioner’s

argument that additional factual development was required here.

This Court’s precedent shows that due process requires a defendant to be

afforded sufficient fact-finding procedures to ensure that he received a fair trial by

an impartial jury. See also Ford v. Wainwright, 477 U.S. 399, 424 (1986) (“If there

is one fundamental requisite of due process, it is that an individual is entitled to an

opportunity to be heard.”). In light of these principles, the denial of fact-finding

procedures below “conflicts with relevant decisions of this Court.” Sup. Ct. R. 10(c).

V.

THE SPLITS IN AUTHORITY DEMONSTRATE THE NEED FOR THIS

COURT’S REVIEW.

The State argues that there is “no conflict in the lower courts” regarding

what procedures a trial court must follow in adjudicating an allegation of racial

bias. BIO 9. The State’s argument runs counter to Peña-Rodriguez, in which the

Court described “a divergence of authority over the necessity and scope of an

7

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)). The State is wrong in asserting that no split exists.

A.

The Split in the State Courts Regarding the Necessity of Factual

Development in the Face of Credible Allegations of Racial Bias in the

Jury Is Based on Federal Law.

As support for the assertion that there is no split in authority, the State

argues that “[e]ach of petitioner’s cited state decisions mandating an evidentiary

hearing provided such relief under the auspices of that state’s own law.” Id. (citing

Pet. 8–9). The State is wrong, and its argument fails to show the absence of a split.

The cited state court opinions all relied on federal law in holding that

allegations of racial bias require factual development. For example, federal law

formed the backbone of the Connecticut Supreme Court’s holding requiring “direct

questioning of the juror alleged to have made the prejudicial comments.” State v.

Santiago, 715 A.2d 1, 21 (Conn. 1998). The court explained: “We so conclude

because ‘determinations made in . . . hearings [inquiring into allegations of juror

bias] will frequently turn upon testimony of the juror in question . . . .’” Id. (quoting

Smith, 455 U.S. at 217 n.7); see also State v. Hunter, 463 S.E.2d 314, 316 & n.3

(S.C. 1995) (quoting McDonald v. Pless, 238 U.S. 264, 269 (1915)); and 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)).

The Missouri Supreme Court quoted federal law: “As stated in United States

v. Heller, ‘A racially or religiously biased individual harbors certain negative

8

stereotypes which, despite his protestations to the contrary, may well prevent him

or her from making decisions based solely on the facts and law that our jury system

requires.’ Such stereotyping has no place in jury deliberations.” Fleshner v. Pepose

Vision Inst., P.C., 304 S.W.3d 81, 90 (Mo. 2010) (quoting United States v. Heller,

785 F.2d 1524, 1527 (11th Cir. 1986)). The Florida Supreme Court also relied on

Heller, quoting the opinion at length before concluding: “We can hardly improve on

this commentary.” Powell v. Allstate Ins. Co., 652 So.2d 354, 358 (Fla. 1995).

Each of these courts explicitly recognized that the federal Constitution

controlled their opinions. Santiago, 715 A.2d at 19 (“[A]n allegation that a juror is

racially biased strikes at the heart of the defendant’s [federal] right to a trial by an

impartial jury and the right to equal protection.”); Fleshner, 304 S.W.3d at 87 (“It is

axiomatic that a fair trial in a fair tribunal is a basic requirement of [federal] due

process.”); Hunter, 463 S.E.2d at 316 (“We find allegations of racial prejudice

involve [federal] principles of fundamental fairness.”); After Hour Welding, 324

N.W.2d at 690 (“For even if only one member of a jury harbors a material prejudice,

the [federal] right to a trial by an impartial jury is impaired.”); Powell, 652 So.2d at

358 (“The founding principle upon which this nation was established is that all

persons were initially created equal and are entitled to have their individual human

dignity respected.”).

In Berhe, the Washington Supreme Court considered whether “the trial court

abused its discretion by failing . . . to conduct a sufficient inquiry before denying

Berhe’s motion for a new trial without an evidentiary hearing.” State v. Berhe, 444

9

P.3d 1172, 1177–1178 (Wash. 2019). The State asserts that “Berhe rooted its

holding in state law.” BIO 10 n.4. Again, the State is wrong.

The court in Berhe noted that this Court “has not yet addressed ‘what

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

based on juror testimony of racial bias’ or ‘the appropriate standard for determining

when evidence of racial bias is sufficient to require that the verdict be set aside and

a new trial be granted.’” Id. at 1179 (quoting Peña-Rodriguez, 137 S.Ct. at 870).

“However,” the court explained, “Washington courts have done so, and we do so

again in this case.” Id.3 Given the Berhe court’s explicit reference to Peña-

Rodriguez, the court plainly believed its decision addressed an issue of federal law.

Even the courts that do not mandate further factual development recognize

that the federal Constitution controls. Kittle, 65 A.3d at 1153 (“[T]he Constitution

and federal and state laws unequivocally establish that state-sanctioned

discrimination is unlawful and must be eradicated.”); Spencer v. State, 398 S.E.2d

179, 184 (Ga. 1990) (citing McCleskey v. Kemp, 481 U.S. 279 (1987)).

Still, even assuming the state courts had only addressed state law, that fact

would not demonstrate the absence of a split requiring this Court’s attention. The

federal Constitution protects a defendant’s right to a fair trial by an impartial jury.

U.S. Const. amends. VI, XIV.

Whatever the state courts’ reasons for allowing disparate levels of factual

3

The court held that “as soon as a court becomes aware of allegations that

racial bias may have been a factor in the verdict, the court shall take affirmative

steps to oversee further inquiry into the matter . . . .” Berhe, 444 P.3d at 1180.

10

investigation into claims of racial bias, the fact remains that the procedures are

varied. Given the unique evil created by racial bias in jury deliberations, the level

of discord in the state courts frustrates due process. And just as state rules that

barred considering the mental processes of jurors could not stand in Peña-

Rodriguez, state rules that deny further factual development in the face of credible

allegations of juror bias should not be allowed to survive here.

B.

The Federal Courts Are Split Regarding the Scope of Necessary FactFinding in the Face of Credible Allegations of Racial Bias in the Jury.

The State argues that petitioner “fails to cite any federal appellate decisions

rejecting a constitutional entitlement to an evidentiary hearing on evidence of juror

racial bias.” BIO 11. The State’s argument distorts the question presented.

Petitioner is not arguing that the courts are split regarding whether an

evidentiary hearing is ever available to investigate an allegation of racial bias. He

argues that the courts are split regarding the threshold level of evidence required to

trigger further factual development. Pet. 10–11.

The State argues that petitioner’s “claim that the Ninth Circuit requires

evidentiary hearings on any colorable claim of juror bias relies on broad language

from” Dyer v. Calderon. BIO 11 (citing Pet. 10). The State argues that “the Ninth

Circuit has on numerous occasions denied an evidentiary hearing while citing Dyer

itself.” Id. (citing Sims v. Rowland, 414 F.3d 1148, 1155–1156 (9th Cir. 2005);

Tracey v. Palmateer, 341 F.3d 1037, 1044 n.4 (9th Cir. 2003); and United States v.

Smith, 424 F.3d 992, 1011 (9th Cir. 2005)). The State’s citations fail to show that

the Ninth Circuit is in accord with the Fourth and Sixth Circuits.

11

Sims and Tracey are both habeas corpus cases subject to the highly

deferential standard of 28 U.S.C. §2254(d) (AEDPA). They held only that Dyer’s

standard for granting a hearing did not constitute “clearly established [law] as

required by AEDPA.” Sims, 414 F.3d at 1156; accord Tracey, 341 F.3d at 1043 n.4.

Although the courts in Sims and Tracey read Dyer less broadly than

petitioner, those interpretations were only dicta in light of their holdings under

AEDPA.4 In any event, application of Sims, Tracey, or Smith would still result in

greater fact-finding procedures than were provided here or in the Fourth or Sixth

Circuits. The court in Tracey held that courts must, “consider the content of the

allegations, the seriousness of the alleged misconduct or bias, and the credibility of

the source” in determining whether to hold a hearing. Tracey, 341 F.3d at 1044;

accord Sims, 414 F.3d at 1155; and Smith, 424 F.3d at 1011.

Here, the application of that test would have mandated an evidentiary

hearing. The content of the allegation is straightforward. According to Juror No. 4,

the offending juror stated that she believed petitioner was “more guilty” because “he

was from El Salvador . . . .” App. D-52. The seriousness of the allegation—racial

bias—could not be higher.5 See, e.g., Rose v. Mitchell, 443 U.S. 545, 555 (1979)

(“Discrimination on the basis of race, odious in all aspects, is especially pernicious

4

Even under AEDPA, Judge Cheryl Lay found that “the majority’s refusal to

require the trial judge to hold a hearing as to the expressed colorable bias of two

jurors . . . . is directly contrary to United States Supreme Court precedent.” Tracey,

341 F.3d at 1045 (Lay, J., dissenting).

5

None of Smith, Tracey, or Sims involved an allegation of racial bias.

12

in the administration of justice.”). No party has questioned Juror No. 4’s credibility.

In contrast, the Fourth and Sixth Circuits have provided far less in response to

allegations of racial bias. United States v. Birchette, 908 F.3d 50, 55 (4th Cir.

2018); United States v. Robinson, 872 F.3d 760, 771 (6th Cir. 2017).

The State argues that the court in Birchette “did not reach the question of

what procedures are required” when credible allegations of racial bias are raised.

BIO 11–12. The State is wrong. The court in Birchette explicitly reviewed “the

district court’s denials of Birchette’s request to interview jurors.” Birchette, 908

F.3d at 55. This review is directly relevant to the question presented here. And

under the Ninth Circuit test, a different result would have been reached.

The State acknowledges that “the dissenting judge in Robinson would have

allowed the evidence of juror bias and remanded the case to the district court for, at

a minimum, an evidentiary hearing.” BIO 12 n.5. Yet the State urges this Court to

disregard Robinson because the dissenting Judge “did not explain whether she

would have ordered the evidentiary hearing as a constitutionally required remedy

or instead as a supervisory rule of procedure.” Id. The State is wrong.

The dissent in Robinson is based on federal Constitutional principles. Judge

Donald opened by observing that the “highly deferential nature” of review for abuse

of discretion “does not discharge [the court’s] responsibility to rectify constitutional

errors.” Robinson, 827 F.3d at 786. “The answer [to a violation of procedural rules]

cannot be to disregard Defendants’ fundamental constitutional right.” Id. at 788.

Immediately prior to holding that she would require an evidentiary hearing,

13

Judge Donald quoted Justice Kennedy for the proposition that a “‘juror who allows

racial . . . bias to influence assessment of the case breaches the compact [underlying

the jury system] and renounces his or her oath.’” Robinson, 827 F.3d at 789 (quoting

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 153 (1994) (Kennedy, J., concurring)).

Judge Donald plainly believed that federal constitutional principles required

further factual development of Robinson’s allegation of racial bias. Her dissenting

opinion underscores the divide below with respect to the proper fact-finding

procedures that must be applied in the face of a threshold allegation of racial bias.

C.

This Court Should Settle the Important Federal Question of What

Level of Fact-Finding Procedures Must Be Provided in Response to a

Credible Allegation of Racial Bias.

Underlying much of the opposition brief is an assumption that the current

procedures in place are sufficient to safeguard defendants from racial bias in the

jury. For example, the State argues that “California law confers on trial courts the

power to order an evidentiary hearing to explore the truth of juror misconduct

allegations.”6 (citing People v. Hedgecock, 51 Cal. 3d 395, 415 (1990)). The State’s

Elsewhere, the State argues that “[c]onsistent with [Peña-Rodriguez],

California law permits trial courts to consider evidence of statements that

constitute juror misconduct, including statements of the juror’s racial or ethnic

biases.” BIO 6 (citing Cal. Evid. Code §1150(a)). Not so.

6

Petitioner is not arguing that the offending juror’s statement constituted

misconduct itself. He is arguing that the statement evinces an underlying bias, any

reliance on which in reaching a verdict would constitute misconduct. As the State

acknowledges, section 1150 expressly forbids a court from considering that

question—whether a juror actually relied on a statement of racial bias in reaching a

verdict. BIO 6. The State nevertheless argues that “trial courts may consider

evidence of jurors’ subjective mental processes when addressing claims that a

juror’s preexisting bias was concealed on voir dire.” Id. The State misses the mark.

14

argument does not undermine the need for certiorari.

Petitioner does not argue that state and federal courts lack mechanisms that

could allow for inquiry into allegations of racial bias in the jury. Petitioner argues

that this Court needs to establish when the federal Constitution requires states to

provide access to those mechanisms. As the law stands, state and federal courts are

applying variable tests that result in vastly different levels of protection from racial

bias. To ensure that all defendants are secure in their right to a fair trial by an

impartial jury, this Court must settle what minimum fact-finding procedures are

constitutionally required in the face of credible allegations of racial bias.

Here, the absence of guidance from the Court led to petitioner’s conviction by

a juror who professed that he was “more guilty” based on his county of birth. The

absence of guidance has prevented petitioner from interviewing the offending juror,

let alone obtaining her sworn testimony. “Relying on race to impose a criminal

sanction ‘poisons public confidence’ in the judicial process.” Buck, 137 S. Ct. at 778

(quoting Davis v. Ayala, 576 U.S. ___, 135 S.Ct. 2187, 2208 (2015)). What faith can

the public have in a process that sits on its hands in the face of credible evidence

that a juror voted for guilt based on the defendant’s country of origin?

CONCLUSION

Petitioner respectfully requests that the Petition be granted.

Petitioner has not argued that the offending juror concealed her preexisting

bias during voir dire. That question is irrelevant to this petition. The question

presented asks only what fact-finding procedures are required when a defendant

makes a threshold showing that a juror relied on racial stereotypes in reaching her

verdict. And more is required than petitioner received.

15

DATED: October 31, 2019

Respectfully submitted,

JAMES S. THOMSON

Attorney for Petitioner

ALEJANDRO HERNANDEZ-DELGADO

Counsel of Record

CERTIFICATE OF COMPLIANCE

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

Case No. 18 - 9665

I certify that the foregoing reply is proportionally spaced, has a typeface of

12 points, is in Century font, is double-spaced, and is 15 pages long.

_____________________

JAMES S. THOMSON