Amicus Curiae Brief — Jessie D. Hoffman, Jr., Petitioner v. Louisiana
Supreme Court briefApr 15, 2022
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No. 21-7381
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------JESSIE D. HOFFMAN, JR.,
Petitioner,
v.
LOUISIANA,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The Supreme Court Of Louisiana
---------------------------------♦--------------------------------AMICUS BRIEF OF THE LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS UNDER LAW
IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------DENNIS LANE
ANDREW W. DAVIS
CLAIRE M. WILLIAMS
Counsel of Record
NATHANIEL C. DONOGHUE
STINSON LLP
STINSON LLP
1775 Pennsylvania Ave., NW,
50 South Sixth Street,
Suite 800
Suite 2600
Washington, D.C. 20006
Minneapolis, MN 55402
(202) 785-9100
(612) 335-1500
dennis.lane@stinson.com
andrew.davis@stinson.com
claire.williams@stinson.com
nathaniel.donoghue@stinson.com
DAMON T. HEWITT*
JON GREENBAUM
ARTHUR AGO
ALEXANDER BROOKS
BENJAMIN F. AIKEN
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW
1500 K Street, NW, Suite 900
Washington, DC 20005
(202) 662-8600
*Admitted in Pennsylvania only.
Practice limited to matters
before federal courts.
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i
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE ......................
1
INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................
1
ARGUMENT ........................................................
4
I.
THE JUROR’S STATEMENTS WERE
OVERTLY RACIST ....................................
4
A. The Juror’s Statements Exhibit Overt
Racial Bias on Their Face ....................
4
B. The Context in which the Juror’s
Statements Were Made Compounds
the Presence of Racial Bias ................. 11
1. An All-White Jury in a MajorityWhite Parish Heightens the Risk of
Racial Bias ...................................... 11
2. The Rape of a White Woman by a
Black Man Taps into Deeply Rooted
Cultural Fears and Racial Bias in
White Juries ................................... 13
II.
THE JUROR’S STATEMENTS, CONSIDERED IN CONTEXT, “TEND TO SHOW”
THAT RACIAL ANIMUS WAS A SIGNIFICANT MOTIVATING FACTOR IN THE
JUROR’S DEATH SENTENCE .................. 16
A. Racial Stereotypes Affect Jury DecisionMaking, Particularly in Cases Involving
the Death Penalty ................................ 16
ii
TABLE OF CONTENTS—Continued
Page
B. State Court Decisions Cited in Peña-Rodriguez Found Analogous Statements
Sufficient to Satisfy the Exception to
the No-Impeachment Rule .................... 20
CONCLUSION..................................................... 26
iii
TABLE OF AUTHORITIES
Page
CASES
After Hour Welding, Inc. v. Laneil Mgmt. Co.,
324 N.W.2d 686 (Wis. 1982) .......................... 4, 22, 24
Fisher v. State,
690 A.2d 917 (Del. 1996) .........................................21
Fleshner v. Pepose Vision Inst., P.C.,
304 S.W.3d 81 (Mo. 2010) ............................ 10, 21, 22
Harden v. Hillman,
993 F.3d 465 (6th Cir. 2021) ................................ 7, 24
Peña-Rodriguez v. Colorado,
137 S. Ct. 855 (2017) ....................................... passim
People v. Rukaj,
123 A.D. 2d 277 (N.Y. Sup. Ct. 1986) ......................23
Powell v. Allstate Ins. Co.,
652 So. 2d 354 (Fla. 1995) .......................................23
State v. Levitt,
176 A.2d 465 (N.J. 1961) .........................................23
Strauder v. West Virginia,
100 U.S. 303 (1880) ...................................................4
United States v. Smith,
No. CR 12-183 (SRN), 2018 WL 1924454
(D. Minn. Apr. 24, 2018) ..........................................24
iv
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
Ann C. McGinley, Policing and the Clash of Masculinities, 59 How. L.J. 221 (2015) ............................5
Barbara Holden-Smith, Lynching, Federalism,
and the Intersection of Race and Gender in the
Progressive Era, 8 Yale J. of L. & Feminism 31
(1996) .......................................................................14
Cass R. Sunstein, Group Judgments: Statistical
Means, Deliberation, and Information Markets,
80 N.Y.U. L. Rev. 962 (2005) ......................................8
D. Marvin Jones, “He’s A Black Male . . . Something Is Wrong with Him!” the Role of Race in
the Stand Your Ground Debate, 68 U. Miami
L. Rev. 1025 (2014) ....................................................7
Dorothy E. Roberts, Crime, Race, and Reproduction, 67 Tul. L. Rev. 1945 (1993) ...............................5
G. Ben Cohen & Robert J. Smith, The Racial Geography of the Federal Death Penalty, 85
Wash. L. Rev. 425 (2010) .........................................12
Harper Lee, To Kill a Mockingbird (1960) .................14
Hiroshi Fukurai & Edgar W. Butler, Sources of
Racial Disenfranchisement in the Jury and
Jury Selection System, 13 Nat’l Black L.J. 238
(1994) .......................................................................15
J.C. Hill, Misperceptions, Fear Increase Racial
Hostility, Times Picayune, nola.com (Nov. 18,
1993) ........................................................................13
v
TABLE OF AUTHORITIES—Continued
Page
Jamelle Bouie, The Deadly History of “They’re
Raping Our Women,” Slate, June 18, 2015 2:22
P.M., https://slate.com/news-and-politics/2015/
06/the-deadly-history-of-theyre-raping-ourwomen-racists-have-long-defended-their-worstcrimes-in-the-name-of-defending-white-womenshonor.html ...............................................................14
James D. Unnever and Francis T. Cullen, White
Perceptions of Whether African Americans and
Hispanics are Prone to Violence and Support
for the Death Penalty, 49 J. Rsch. Crime and
Delinq. 519 (2012) .....................................................5
James Forman, Jr., Juries and Race in the Nineteenth Century, 113 Yale L.J. 895 (2004) ................17
James S. Liebman & Peter Clarke, David H.
Bodiker Lecture on Criminal Justice: Minority Practice, Majority’s Burden: The Death
Penalty Today, 9 Ohio St. J. Crim. L. 255
(2012) .......................................................................12
Justin D. Levinson, Forgotten Racial Equality:
Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007) ................................8
Justin D. Levinson & Danielle Young, Different
Shades of Bias: Skin Tone, Implicit Racial
Bias, and Judgments of Ambiguous Evidence,
112 W. Va. L. Rev. 307 (2010) ....................................9
vi
TABLE OF AUTHORITIES—Continued
Page
Justin D. Levinson, Robert J. Smith, & Danielle
M. Young, Devaluing Death: An Empirical
Study of Implicit Racial Bias on Jury–Eligible
Citizens in Six Death Penalty States, 89 N.Y.U.
L. Rev. 513 (2014) ........................................ 12, 17, 19
Kelly Welch, Black Criminal Stereotypes and
Racial Profiling, 23 J. Contemp. Crim. Just.
276 (2007) ..................................................................5
Lisa Cardyn, Sexualized Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, 100 Mich. L. Rev. 675 (2002) ........14
Matthew A. Gasperetti, Crime and Punishment:
An Empirical Study of the Effects of Racial
Bias on Capital Sentencing Decisions, 76 U.
Miami L. Rev. 525 (2022) .................................. 15, 18
Phyllis L. Crocker, Crossing the Line: Rape-Murder and the Death Penalty, 26 Ohio N.U. L.
Rev. 689 (2000) ........................................................15
Rachel Wetts, et al., Who Is Called by the Dog
Whistle? Experimental Evidence That Racial
Resentment and Political Ideology Condition
Responses to Racially Encoded Messages, 5
Socius 1 (2019) ........................................................19
Robert J. Cottrol, Through A Glass Diversely:
The O.J. Simpson Trial as Racial Rorschach
Test, 67 U. Colo. L. Rev. 909 (1996) ...........................9
vii
TABLE OF AUTHORITIES—Continued
Page
Samuel R. Gross & Robert Mauro, Patterns of
Death: An Analysis of Racial Disparities in
Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27 (1984) ...............................15
Tara Mitchell, et al., Racial Bias in Mock Juror
Decision-Making: A Meta-Analytic Review of
Defendant Treatment, 29 Law & Hum. Behav.
621 (2005) .......................................................... 17, 18
Travis A. Taniguchi, Joshua A. Hendrix, Alison
Levin-Rector, Brian P. Aagaard, Kevin J.
Strom & Stephanie A. Zimmer, Extending the
Veil of Darkness Approach: An Examination of
Racial Disproportionality in Traffic Stops in
Durham, NC, 20 POLICE Q. 426 (2017) ..................7
William J. Bowers, et al., Death Sentencing in
Black and White: An Empirical Study of the
Role of Jurors’ Race and Jury Racial Composition, 3 U. Pa. J. Const. L. 171 (2001) ......................9
1
INTEREST OF AMICUS CURIAE1
The Lawyers’ Committee for Civil Rights Under
Law (“Lawyers’ Committee”) is a nonpartisan, nonprofit organization, formed in 1963 at the request of
President John F. Kennedy to enlist the private bar’s
leadership and resources in combating racial discrimination and the resulting inequality of opportunity—
work that continues to be vital today. Much of the Lawyers’ Committee’s work involves combatting racial inequities in the criminal justice system through
litigation, public policy advocacy, and serving as amicus curiae.
---------------------------------♦---------------------------------
INTRODUCTION AND
SUMMARY OF ARGUMENT
This case presents an all-too-familiar story. A
prosecutor sought out a friendly venue, struck the only
Black jurors, and secured a death sentence from an allWhite jury that relied on unsupported and untruthful
racial tropes about the defendant. But this is not early
20th century Jim Crow. This happened in 1990s Louisiana, and now the State is prepared to execute petitioner Jessie Hoffman despite undisputed evidence
from a juror that Mr. Hoffman’s race played a role in
1
No counsel for a party authored the brief in whole or in
part. No party, counsel for a party, or any person other than amicus curiae and their counsel made a monetary contribution intended to fund the preparation or submission of the brief. The
parties were timely notified and have consented to the filing of
this brief.
2
his sentence. Both the Constitution and this Court’s
precedent demand a different result.
Certiorari is warranted because the Louisiana Supreme Court decided an important federal question in
a way that conflicts with relevant decisions of this
Court. Years after the verdict, a juror voluntarily admitted that the jury had convicted and sentenced Mr.
Hoffman based on classic racial tropes that had zero
basis in the record. Under Peña-Rodriguez v. Colorado,
137 S. Ct. 855 (2017), that should have been sufficient
to pierce the no-impeachment rule and entitle Hoffman to a hearing where he could present evidence and
prove that his sentence was impermissibly based on
his race. Yet the Louisiana Supreme Court refused to
grant Mr. Hoffman a hearing even in the face of credible evidence that a jury was tainted with racial bias
during deliberations.
As the petition ably demonstrates, the decision below erred in two key respects. First, although the Louisiana Supreme Court recognized that the jury’s
decision relied on racial stereotypes, it nonetheless
wrongly concluded that the statements were not “egregious and unmistakable” enough to trigger Peña-Rodriguez. App. for Pet. for Writ of Cert. (“App.”),
Hoffman v. Hooper, A 7-8. Second, the court erroneously heightened the burden that this Court requires
of a defendant in Mr. Hoffman’s position. Rather than
following Peña-Rodriguez’s standard that a defendant
must produce evidence that “tend[s] to show” his sentence resulted from racial bias at this threshold stage,
the Louisiana Supreme Court held that he must
3
“prove” this bias resulted in the sentence, App. A 9. But
that is the question for the next stage, to be addressed
after the Peña-Rodriguez threshold is met, when Mr.
Hoffman can present evidence to offer that proof.
The Lawyers’ Committee, as amicus, offers additional context that bolsters both of Mr. Hoffman’s arguments. First, the juror’s statements in this case
unquestionably exhibited overt racial bias toward Mr.
Hoffman, particularly in light of the larger historical,
cultural, and geographic context in which they were
made. Second, the statements of overt racial bias at issue here easily satisfy the Court’s “tend to show” evidentiary threshold. Both the social science literature,
as well as caselaw applying the no-impeachment rule
and relied upon in Peña-Rodriguez, demonstrate that
such overt statements of racial animus are likely to affect juror decision-making, particularly in death sentence deliberations, involving a Black defendant,
White victim, and an all-White jury, as was the case
here. Thus, the statements at issue satisfy the “tend to
show” standard, and it was reversible error for the
Louisiana Supreme Court to require, at this stage,
“proof ” that a juror’s sentencing decision was motivated by racial animus.
Because the juror statements exhibited overt racial bias, and tend to show that this bias motivated the
jury’s death sentence, this Court should grant Mr. Hoffman’s petition to ensure that lower courts faithfully
follow the Peña-Rodriguez standard in these matters
of utmost importance. Granting the petition would allow this Court to address and correct the Louisiana
4
Supreme Court’s ruling, which directly conflicts with
the “tend to show” standard that this Court has held
should apply in cases that involve this important federal question.
---------------------------------♦---------------------------------
ARGUMENT
I.
THE JUROR’S STATEMENTS
OVERTLY RACIST
WERE
A. The Juror’s Statements Exhibit Overt
Racial Bias on Their Face.
It has long been recognized—with Peña-Rodriguez
being only one of the latest decisions from this and
other Courts—that insidious racist ideas have no place
in the American justice system. See, e.g., Strauder v.
West Virginia, 100 U.S. 303, 305–309, (1880) (prohibiting the exclusion of jurors on the basis of race); After
Hour Welding, Inc. v. Laneil Mgmt. Co., 324 N.W.2d
686, 690 (Wis. 1982) (“The form of stereotyping as evidenced by the juror Stokes’ affidavit has no place in our
system of justice.”). Here, the juror M.L.’s Affidavit
(“Affidavit”) (see App. at C1-C5) is infused with racial
stereotyping and animus that has no place in our system of justice. The Affidavit facially exhibits an overt
racial bias that casts substantial doubt on the fairness
and impartiality of the jury’s sentencing deliberations.
To take just one example, the jury held the stereotypical view that a Black person with no prior criminal
record must, nonetheless, have engaged in some type
of nefarious behavior. The Affidavit says:
5
During the penalty phase deliberations we
wanted to know whether the defendant had a
juvenile record. We thought that given his
background he may have a history of drugs
and things like that. We wondered if he was in
a gang. The judge told us we were not allowed
to have that information.
App. at C4. This statement is littered with thinly veiled
nods to Mr. Hoffman’s race—the non-existent juvenile
record, the fabricated history of drugs and gang membership, and a “background” that evinced nothing of
the sort.
The stereotypes that Black men are presumed to
be criminals and violent is a pervasive racial bias in
this country. See, e.g., Kelly Welch, Black Criminal Stereotypes and Racial Profiling, 23 J. Contemp. Crim.
Just. 276, 278 (2007) (noting the pervasive stereotyping of young Black men as criminals, and surveying
studies which offer empirical evidence that Black people are improperly stereotyped as having a propensity
for criminality and violence); Dorothy E. Roberts,
Crime, Race, and Reprod., 67 Tul. L. Rev. 1945, 195354 (1993) (“The unconscious association between
blacks and crime is so powerful that it supersedes reality: it predisposes whites to literally see black people
as criminals.”); see also Ann C. McGinley, Policing and
the Clash of Masculinities, 59 How. L.J. 221, 253 (2015)
(“Seeing all black men as presumptive criminals is reinforced by widespread stereotypes about black men
and black masculinity.”); James D. Unnever and Francis T. Cullen, White Perceptions of Whether African
6
Americans and Hispanics are Prone to Violence and
Support for the Death Penalty, 49 J. Rsch. Crime and
Delinquency 519, 519-22 (2012) (examining White
Americans’ perception of Black Americans as “crime
prone” and that “pejorative depictions” of Black Americans significantly predicts support for capital punishment). It is clear from the Affidavit that the jury
considered, discussed, and presumed these racial stereotypes and biases—all contrary to evidence at the
trial—while deliberating on Mr. Hoffman’s sentence.
Despite hearing testimony at trial that Mr. Hoffman had no legal history and no prior experience with
criminal behavior (see, e.g., Pet. for Writ of Cert., Hoffman v. Hooper, (“Pet.”) at 8-9, n.8, n.10), the Affidavit
shows that during deliberations, the all-White jury
presumed that Mr. Hoffman, a Black man from “the
projects,” may have had a juvenile record that was being kept from them. App. at C3-C4. Instead of accepting the actual testimony at trial that Mr. Hoffman had
no prior criminal record, the jury introduced their own
unfounded racial stereotypes about Black men’s criminality and propensity for violence in their deliberations.
Similarly, the Affidavit’s baseless speculation that
Mr. Hoffman must be involved with drugs and gangs
exhibits overt racial biases. There is a persistent, false
belief in our country that Black men are involved with
drugs and gangs, reflecting pervasive racial stereotypes and bias. Our judicial system is well aware of the
racial bias that associates Black men with drugs and
has taken several measures, such as piercing the jury
7
shield, to guard against such bias. “Little needs to be
said about the pervasive and harmful racial stereotypes regarding African Americans and drugs.” Harden
v. Hillman, 993 F.3d 465, 482 (6th Cir. 2021) (piercing
jury shield based on juror statement that Black defendant was a “crack addict”); see also Travis A.
Taniguchi, Joshua A. Hendrix, Alison Levin-Rector,
Brian P. Aagaard, Kevin J. Strom & Stephanie A. Zimmer, Extending the Veil of Darkness Approach: An Examination of Racial Disproportionality in Traffic Stops
in Durham, NC, 20 POLICE Q. 426 (2017) (citing studies which show that “African Americans . . . are more
likely than any other group to be described as violent,
drug abusers, and criminals”). The same is true of the
stereotypes about Blackness and gangs. See D. Marvin
Jones, “He’s A Black Male . . . Something Is Wrong with
Him!” the Role of Race in the Stand Your Ground Debate, 68 U. Miami L. Rev. 1025, 1034-35 (2014) (discussing the false but popular association between
Blackness and drugs, gangs, and thugs).
Tragically, the Affidavit shows that the jury presumed these racial stereotypes during its deliberations, despite a complete lack of any evidence or
testimony that supported their views. In so doing, the
jury ignored their role to decide on the facts before
them, and, instead, relied on classic racial tropes about
Black men. At trial, multiple mitigation witnesses testified to Mr. Hoffman’s good character, history, temperament, and habits. See, e.g., Pet. at 8-9, n.8. Indeed, the
prosecution called two managers from Mr. Hoffman’s
place of employment, who testified that Mr. Hoffman
8
had no criminal record and that his drug screens were
clean. Id. at n.10. Yet, despite all evidence and testimony to the contrary, the jury presumed Mr. Hoffman
likely had a juvenile record, a history of drugs, and possible gang affiliations—simply because he is Black.
Social science shows that racial bias is likely to
prejudice Black people in this way. Studies show that
mock jurors misremember case facts in racially biased
ways and even subconsciously manufacture evidence
against Black defendants that did not exist. See Justin
D. Levinson, Forgotten Racial Equality: Implicit Bias,
Decisionmaking, and Misremembering, 57 Duke L.J.
345, 381 (2007). Troublingly, the prejudice created by
one juror’s false recollection or fabrication of evidence
is not mitigated by jury deliberation and, in some
cases, prejudice may actually be exacerbated by deliberation. See Cass R. Sunstein, Group Judgments: Statistical Means, Deliberation, and Information Markets,
80 N.Y.U. L. Rev. 962, 993 (2005) (“[G]roups generally
can be expected to amplify rather than correct individual bias.”).
The racial animus is reinforced by the Affidavit’s
indication that the jury made the presumptions about
criminal history, drug usage, and gang affiliations
“given his background.” App. at C4 (emphasis added).
As the Affidavit clarifies, the jury thought the defense
used Mr. Hoffman’s background—growing up in a
Black New Orleans neighborhood—to make them “feel
sorry for [Mr. Hoffman] being a poor black man from
the projects.” Id. at C3. Given that the trial was held in
the predominantly White suburb of St. Tammany
9
Parish before an all-White jury, it is hardly surprising
that the jury would assume that growing up in a Black
New Orleans neighborhood would mean Mr. Hoffman
had been involved in prior criminal activity. See Pet. at
4-5.
The Affidavit is replete with other language showing overt racial bias. For instance, the jury could allegedly tell just by “[l]ooking at him,” that Hoffman—who
had no criminal background and had just reached the
age of majority—was “cold-blooded.” App. C2. That
baseless observation reflects the known phenomenon
that White jurors are likelier to associate Black people
with guilt. See, e.g., William J. Bowers, et al., Death
Sentencing in Black and White: An Empirical Study of
the Role of Jurors’ Race and Jury Racial Composition,
3 U. Pa. J. Const. L. 171, 215-216 (2001); Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin
Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307, 337 (2010). Elsewhere, the Affidavit speculates about a defense
strategy to “play the race card and get [Hoffman]
off. . . . Like O.J. Simpson using it to get off.” App. at
C3. These are unmistakably statements of racial bias
in the jury’s deliberations. See, e.g., Robert J. Cottrol,
Through A Glass Diversely: The O.J. Simpson Trial as
Racial Rorschach Test, 67 U. Colo. L. Rev. 909, 916
(1996) (noting significant majorities of White people
believed O.J. Simpson was guilty, and significant majorities of Black people believed he was innocent).
These references in the Affidavit show that an overt
10
and impermissible racial bias was present during jury
deliberations.
The Affidavit’s speculation and stereotypes about
Mr. Hoffman as a Black man from the inner city is the
type of showing that has been found to demonstrate a
bias that unconstitutionally permeates the deliberation. “When a juror makes statements evincing ethnic
or religious bias or prejudice during deliberations, the
juror exposes [her] mental processes and innermost
thoughts. . . . The juror has revealed that [she] is not
fair and impartial.” Fleshner v. Pepose Vision Inst., P.C.,
304 S.W.3d 81, 89 (Mo. 2010) (cited in Peña-Rodriguez
as one of the “Judicially Recognized Exceptions for Evidence of Racial Bias”). The Affidavit specifies that
these speculations were raised “[d]uring the penalty
phase deliberations,” and shows that Hoffman’s sentencing was infected with racial bias. App. at C4 (emphasis added). The jury was instructed by the trial
judge to consider mitigating factors in Mr. Hoffman’s
sentencing, including his character and his lack of
criminal history. Pet. at 9. Rather than consider the evidence and testimony presented at trial—which
weighed strongly in favor of mitigation as Mr. Hoffman
was a first-time offender—the Affidavit makes clear
that racial stereotypes and speculation led the jury to
impose the ultimate and most final punishment.
11
B. The Context in which the Juror’s Statements Were Made Compounds the Presence of Racial Bias.
Not only did the juror’s statements exhibit racial
bias on their face, but they also occurred in circumstances that significantly compounded the risk of racial bias. First, the trial took place in a majority-White
parish rife with racial tension and with an all-White
jury, which research has shown increases the risk of
racial bias. Second, the facts of the case, involving the
rape and murder of a White woman by a Black man,
tap into deep and longstanding cultural stereotypes
about Black men and sexual violence. Both factors
bring race and racial bias to the forefront.
1. An All-White Jury in a MajorityWhite Parish Heightens the Risk of
Racial Bias.
The racial makeup of both the jury and the parish
contributed to the likelihood that racial bias would infect the trial. While there were two qualified potential
Black jurors in the jury pool, they were peremptorily
excused by the prosecution, and the jury that sentenced Mr. Hoffman was entirely White. Pet. at 6. The
trial could have occurred in the majority-Black parish
of Orleans, where the crime occurred, but the prosecutors chose to bring the case in the majority-White parish of St. Tammany and connected their decision to
seek the death penalty to “issu[ing] a strong statement
to the criminal element of New Orleans . . . we will not
12
tolerate this kind of victimization of our citizens in
St. Tammany Parish.” Id. at 4-5, n.4.
Social science research has demonstrated that allWhite juries and White jurors are often susceptible to
racial stereotypes. See, e.g., Justin D. Levinson, Robert
J. Smith, & Danielle M. Young, Devaluing Death: An
Empirical Study of Implicit Racial Bias on Jury–Eligible Citizens in Six Death Penalty States, 89 N.Y.U. L.
Rev. 513, 553, 557-58 (2014) (study of jury-eligible citizens in six states found White citizens more likely to
exhibit racial bias). The geographical context of the
case—in a majority-White parish adjacent to a majority-Black parish—also increased the potential for racial bias in sentencing. A 2014 study of jurisdictions
that impose death sentences found that areas that
have majority-White counties surrounding a majorityBlack county are more likely to impose the death penalty. Levinson, et al., Devaluing Death, supra, at 513;
see also James S. Liebman & Peter Clarke, David H.
Bodiker, Lecture on Criminal Justice: Minority Practice, Majority’s Burden: The Death Penalty Today, 9
Ohio St. J. Crim. L. 255, 272 (2012) (discussing the
death penalty in Baltimore); G. Ben Cohen & Robert J.
Smith, The Racial Geography of the Federal Death Penalty, 85 Wash. L. Rev. 425, 437 (2010) (documenting an
increase in death sentences where there is a majority
Black county surrounded by majority White federal
districts).
Orleans and St. Tammany parishes were among
the worst environments for this dynamic during Mr.
Hoffman’s trial. Newspapers described White residents
13
of the area harboring “terror of Black crime and a distrust of young African-American men” and a “perception that African-Americans are predators.” J.C. Hill,
Misperceptions, Fear Increase Racial Hostility, Times
Picayune, nola.com (Nov. 18, 1993). A sociologist observed that this perception exacerbated tensions “between urban, Black New Orleans and the suburban
White metro area,” such as St. Tammany Parish. Id.2
No case occurs in a vacuum. Mr. Hoffman’s case occurred in a context literally surrounded by racial
tension, which research shows almost inevitably prejudiced him at trial.
2. The Rape of a White Woman by a
Black Man Taps into Deeply Rooted
Cultural Fears and Racial Bias in
White Juries.
The facts of this case, involving the rape and murder of a White woman by a Black man, also significantly raise the risk that racial stereotypes and bias
infected jury deliberations. The crime of rape has been
particularly fraught with racist implications when it
involves a White victim and a Black defendant because
fears about Black men and sexual violence have long
been used to inflame racial bias, as evidenced by multiple famous and foundational stories about race in
the United States. See, e.g., Lisa Cardyn, Sexualized
2
One sociologist described the area as “fertile ground in
white America’s historic dread of African-American violence,” associated with “old rape stories” about Black men and White
women. Id.
14
Racism/Gendered Violence: Outraging the Body Politic
in the Reconstruction South, 100 Mich. L. Rev. 675, 807
(2002) (discussing the Birth of A Nation and the Ku
Klux Klan’s weaponization of widespread fear of miscegenation to spread in the Reconstruction South);
Harper Lee, To Kill a Mockingbird (1960).
The underlying racial bias engendered by these
circumstances is found not only in American literature,
but also in, for example, horrific violence by White people against Black communities, as well as opposition to
past anti-lynching legislation. See, e.g., Jamelle Bouie,
The Deadly History of “They’re Raping Our Women,”
Slate, June 18, 2015 2:22 P.M., https://slate.com/newsand-politics/2015/06/the-deadly-history-of-theyre-rapingour-women-racists-have-long-defended-their-worst-crimesin-the-name-of-defending-white-womens-honor.html
(reporting that when Dylann Storm Roof murdered
nine black church goers, he said that he wanted to kill
them because “you rape our women”); Barbara HoldenSmith, Lynching, Federalism, and the Intersection of
Race and Gender in the Progressive Era, 8 Yale J. of
L. & Feminism 31, 55 (1996) (quoting Senator James
Buchanan’s statement that removing the threat of
lynching would excite the “criminal sensualities of the
criminal element of the Negro race and directly incite[ ]
the diabolical crime of rape upon the white women.”).
Sadly, those same deeply rooted cultural fears are
reflected in the tendency of juries to exhibit racial bias
in sentencing decisions. Simulated jury studies from
the 1970s and 1980s found disparate and harsher penalties for Black men who were accused of raping White
15
women. Hiroshi Fukurai & Edgar W. Butler, Sources of
Racial Disenfranchisement in the Jury and Jury Selection System, 13 Nat’l Black L.J. 238, 271 (1994). A
study of defendants sentenced to death in the 1980s
and 1990s found harsher punishments for Black men
raping White women than any other combination of
defendant and victim. Phyllis L. Crocker, Crossing the
Line: Rape-Murder and the Death Penalty, 26 Ohio
N.U. L. Rev. 689, 703 (2000).
Studies of crimes other than rape have similarly
found higher rates of death sentences when the defendant is Black and the victim is White. Samuel R.
Gross & Robert Mauro, Patterns of Death: An Analysis
of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 105-06 (1984)
(studying death penalties in eight states); Matthew A.
Gasperetti, Crime and Punishment: An Empirical
Study of the Effects of Racial Bias on Capital Sentencing Decisions, 76 U. Miami L. Rev. 525, 549 (2022) (finding that Black defendants are eleven times more likely
to be executed for killing a White victim than a Black
victim).
The social science research of juries and race
demonstrates that the circumstances of this case were
rife with the potential for racial bias, and in this instance, there is evidence in the Affidavit that racial
bias infected Hoffman’s sentencing. Peña-Rodriguez
makes clear that courts should address exactly these
types of situations so that insidious racial ideas do not
remain part of the American justice system.
16
II.
THE JUROR’S STATEMENTS, CONSIDERED IN CONTEXT, “TEND TO SHOW”
THAT RACIAL ANIMUS WAS A SIGNIFICANT MOTIVATING FACTOR IN THE JUROR’S DEATH SENTENCE.
The Affidavit, particularly when taken in historical, cultural, and geographic context, demonstrates the
jury’s overt racial bias toward Mr. Hoffman. This Court
should grant certiorari review to clarify that, at the
threshold stage, proof of a direct causal link between
racial animus and the juror’s decision-making, as the
Louisiana Supreme Court erroneously ruled, is not
the proper standard. Rather, courts must evaluate
whether racist statements “tend to show” that racial
animus was a significant motivating factor in the juror’s decision to impose a death sentence, consistent
with Peña-Rodriguez, 137 S. Ct. at 869. For several reasons, the Court should grant certiorari to clarify the
appropriate standard to be used in these important
cases.
A. Racial Stereotypes Affect Jury DecisionMaking, Particularly in Cases Involving
the Death Penalty.
Historical and empirical evidence demonstrates
that juror decision-making is affected by racial stereotypes, such that racist statements of the sort explicitly
exhibited here tend to show racial animus is a significant motivating factor in that juror’s decision.
17
Shortly after the Civil War, it became clear that
racial biases were infecting jury deliberations with
“[a]ll-white juries punish[ing] black defendants particularly harshly, while simultaneously refusing to
punish violence by whites . . . against blacks and Republicans.” James Forman, Jr., Juries and Race in the
Nineteenth Century, 113 Yale L.J. 895, 909-10 (2004).
This was the context that necessitated the Fourteenth
Amendment. Yet the impermissible effect of racism on
jury decision-making persists into modern times. As
discussed above, studies have long shown the presence
of racial bias in jury decision-making. See Tara Mitchell, et al., Racial Bias in Mock Juror Decision-Making:
A Meta-Analytic Review of Defendant Treatment, 29
Law & Hum. Behav. 621, 628-29 (2005) (discussing
studies).
This racial disparity is even more pronounced
when it comes to the death penalty. For example, the
use of abstract mitigating evidence during the sentencing phase creates opportunities for racial bias to influence decision-making, since “jurors can have difficulty
giving adequate mitigating value to evidence introduced by Black defendants.” Levinson, et al., Devaluing Death, supra, at 539 (“The racial disparities that
we found in sentencing outcomes were likely the result
of the jurors’ inability or unwillingness to empathize
with a defendant of a different race—that is White jurors who simply could not or would not cross the ‘empathic divide’ to fully appreciate the life struggles of a
Black capital defendant and take those struggles into
account in deciding on his sentence.”) (quoting Mona
18
Lynch, et al., Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, 2011
Mich. L. Rev. 573, 584 (2011)); see also Mitchell, et al.,
supra, at 629 (noting that racial bias in juror verdicts
is more pronounced when non-dichotomous evidence,
such as evidence unrelated to guilt versus non-guilt, is
at issue).
Juror decision-making in capital cases is thus subject to higher incidents of racial stereotypes, even in
the absence of overt racist statements. It follows that
where such statements have been made, discussed,
and repeated—as was the case here—they tend to
show the presence of racial bias as a significant motivating factor in that juror’s decision-making.
Indeed, empirical studies show racial bias increases
the likelihood of both guilt and a death sentence. See
Gasperetti, supra, at 554. “Respondents who failed the
voir dire questions screening for racial bias were 18.3%
to 18.4% more likely to sentence a Black defendant to
death than a White defendant ceteris paribus.” Id. In
other words, where a juror voices his or her racial animus, the likelihood that race plays a significant role in
that juror’s decision-making is substantial. Thus,
[e]ven though the days of rampant and overt
racism are mostly gone, our study shows that
it is still valuable to monitor explicit racial
bias, at least in capital cases. If higher selfreported bias indeed leads, as we found, to
more death sentences for the killers of White
victims, then courts should devote energy to
19
rooting out those jurors who will acknowledge
their own biases.
Levinson, et al., Devaluing Death, supra, at 564-65.
To be sure, subtle or implicit appeals to racism—
so called “dog whistles”—have been shown to be even
more effective than overtly racist statements, in terms
of harnessing prejudice among others. Rachel Wetts, et
al., Who Is Called by the Dog Whistle? Experimental
Evidence That Racial Resentment and Political Ideology Condition Responses to Racially Encoded Messages, 5 Socius 1, 2 (2019). According to these studies,
statements that are overtly racist risk being recognized and rejected as such by others, whereas subtle or
implicit cues can more effectively harness “underlying
racial dispositions” when “the racial content of the
message remains outside conscious awareness.” Id.
While Peña-Rodriguez establishes that one overtly
racist juror statement alone is enough to violate a defendant’s constitutional rights, veiled racist remarks
among jury members can be more insidious than overt
racist statements. See generally, id. This reality informs the application of the Court’s “tend to show”
standard, confirming that Peña-Rodriguez sets a lower
evidentiary threshold than actual “proof,” as the Louisiana Supreme Court required. Louisiana’s version of
the no-impeachment exception would capture only the
most obvious racist remarks, and miss the more insidious forms of racism that traffic in stereotypes and constitute a significant motivating factor during
deliberations.
20
In short, empirical data as reported in the social
science literature demonstrates that the salient fact in
determining the impact of racial bias, is that an explicit or implicit racially charged remark is made during jury deliberations. Racist statements give voice to
an undercurrent of racial animus in juror decisionmaking, particularly in the context of capital cases involving a Black defendant. Such statements “tend to
show” that racial animus is a significant motivating
factor in the decision to impose death, even if the statements do not causally link a finding of guilt or a death
sentence to racial motivation.
B. State Court Decisions Cited in PeñaRodriguez Found Analogous Statements
Sufficient to Satisfy the Exception to the
No-Impeachment Rule.
State court decisions confirm that the “tend to
show” standard sets a lower evidentiary threshold for
piercing the no-impeachment rule than the proof required by the Louisiana Supreme Court, and that the
threshold is satisfied when racist statements are
made. The Court in Peña-Rodriguez noted that “at
least 16 jurisdictions, 11 of which follow the Federal
Rule [606(b)], have recognized an exception to the noimpeachment bar under the circumstances the Court
faces here: juror testimony that racial bias played a
part in deliberations.” 137 S. Ct. at 865 & Appx. (collecting state court decisions).
21
A review of those state court decisions confirms
that statements exhibiting racial bias, such as those at
issue in this case, are sufficient to show that racial bias
was a “significant motivating factor” in that juror’s decision, satisfying the “tend to show” threshold standard
of Peña-Rodriguez without the need to demonstrate a
causal link to the juror’s verdict. 137 S. Ct. at 869. Rather, the question of a causal link is ultimately a factbound issue for the trial court at a later hearing, once
the exception to the no-impeachment rule has been established through the threshold showing.
For example, in Fisher v. State, the following statement was sufficient to warrant an evidentiary hearing
on whether juror bias improperly affected the verdict
(i.e., would be sufficient to satisfy the Peña-Rodriguez
“tend to show” standard): “this defendant does not have
a chance with this jury look there are no Blacks on it.”
690 A.2d 917, 919 (Del. 1996). This statement was sufficient to trigger a remand hearing (and, thus, satisfy
the “tend to show” standard under Peña-Rodriguez).
The remand hearing ultimately resulted in a finding
that racial bias actually played a role in the jury’s deliberations after jurors testified in camera to additional racially biased details and statements. Id. at
920. The Louisiana Supreme Court erred in jumping to
this second “proof ” step as the required threshold
showing, rather than following Peña-Rodriguez’s requirement that a statement tending to show bias is
sufficient to pierce the no-impeachment rule.
In Fleshner v. Pepose Vision Institute, P.C., the Missouri Supreme Court addressed juror statements
22
made during deliberations, including “She is a Jewish
bitch,” “She is a penny-pinching Jew,” and “She is such
a cheap Jew that she did not want to pay Plaintiff unemployment compensation.” 304 S.W.3d 81, 88 (Mo.
2010). Reversing the trial court, the Missouri Supreme
Court held that these statements were sufficient to
pierce the no-impeachment rule and require an evidentiary hearing. Id. at 89-90. The Court reached its holding even though the statements at issue did not
themselves show that the juror reached his verdict because of religious animus. See id. Indeed, examining
such statements and their relationship to the verdict
was the very purpose of the subsequent evidentiary
hearing after the no-impeachment rule has been
pierced. See id. (“The trial court abused its discretion
in failing to hold an evidentiary hearing to determine
whether the alleged juror misconduct occurred.”).
And in After Hour Welding, Inc. v. Laneil Management Co., 324 N.W.2d 686, 689-90 (Wis. 1982), an affidavit showed that a juror had referred to an officer of
the corporate defendant as “a cheap jew.” The trial
court refused to hold an evidentiary hearing, on
grounds that “there is no proof that it affected their
judgment.” Id. (emphasis added). The Wisconsin Supreme Court held that the juror’s statement itself was
sufficient to trigger an evidentiary hearing in the trial
court. Id. at 691. The mere fact that an overt racist
statement was made was sufficient to pierce the noimpeachment rule and satisfy the “tend to show”
standard under Peña-Rodriguez, with the ultimate
23
question of whether the verdict was motivated by racial animus to be later determined by the trial court.
Other state court decisions cited in Peña-Rodriguez
have similarly held that juror statements that specifically reference race or religion are sufficient to trigger
the no-impeachment rule and require a subsequent evidentiary hearing, even if such statements do not
themselves draw a direct line between the juror’s bias
or animus and the verdict. See, e.g., State v. Levitt, 176
A.2d 465 (N.J. 1961) (juror statement “[d]id you notice most of them were Jews and even one of them
was from the Synagogue,” was sufficient to pierce noimpeachment rule and trigger evidentiary hearing);
Powell v. Allstate Ins. Co., 652 So. 2d 354, 356 n.2 (Fla.
1995) (finding in a civil case that juror statement that
defendants’ children were “probably drug dealers” constituted overt act of racial bias and granting a new
trial); People v. Rukaj, 123 A.D. 2d 277, 279-80 (N.Y.
Sup. Ct. 1986) (jury’s note sent to trial judge during
proceedings that it could not reach a verdict “because
of speculations and biased feelings,” was sufficient to
require an evidentiary hearing). As the New York court
stated in Rukaj, “when the spectre of an outside influence of the jury affecting the defendant’s fundamental
right to a fair trial is raised, it is vital that a hearing
or other appropriate inquiry be held to ascertain what
actually transpired.” Rukaj, 123 A.D.2d at 280 (emphasis added).
These state court decisions were relied upon by
Peña-Rodriguez in its formulation of this exception to
the no-impeachment rule. 137 S. Ct. at 870. They
24
further demonstrate that the Louisiana Supreme
Court’s requirement that Mr. Hoffman produce “proof ”
that the juror’s verdict was motivated by racial animus
erected an impermissibly high evidentiary bar at the
threshold stage. See After Hour Welding, Inc., 324
N.W.2d at 738 (trial court erred by requiring “proof
that it [juror’s racist remark] affected their judgment”)
(emphasis added).
Courts applying Peña-Rodriguez have also found
that impermissible racial bias required the jury shield
to be pierced in similar contexts. The Sixth Circuit
found that a jury’s unsupported belief that a Black
male petitioner was a “hard drug user” “demonstrate[d]
overt racial bias” and sustained a Peña-Rodriguez
claim. Harden, 993 F.3d at 482-85. Similarly, in United
States v. Smith, a court applying Peña-Rodriguez found
that, even though it did “not explicitly invoke race,” a
juror’s statement that a Black man was a “banger from
the hood” indicated racial bias and tended to show that
racial animus was a motivating factor in the juror’s
vote to convict. United States v. Smith, No. CR 12-183
(SRN), 2018 WL 1924454, at *4, 9-11 (D. Minn. Apr. 24,
2018). Here, Mr. Hoffman’s jurors assumed he was involved with drugs and gangs, with no basis other than
racial bias to generate their assumption and sentence
him to death.
These decisions also demonstrate that an inquiry
into juror motivation, and whether racial bias or animus was a significant part of those motivations, is a
fact intensive question that the trial court must answer once the exception to the no-impeachment rule
25
has been established by a threshold “tend to show”
finding. To require “proof ” that racial animus was a
significant motivating factor in a juror’s decision, at
the threshold level under Peña-Rodriguez, would turn
the post-conviction discovery process on its head, requiring ultimate proof of a claim before determining
whether a litigant can even bring it.
That, in turn, would deprive defendants of their
constitutional right to a fair trial, which is unacceptable. As the Court has stated, “racial bias [is] a familiar
and recurring evil that, if left unaddressed, would risk
systemic injury to the administration of justice.” PeñaRodriguez, 137 S. Ct. at 868. Mr. Hoffman’s case presents exactly the kind of racial bias this Court has determined cannot be left unaddressed. By enforcing the
proper Peña-Rodriguez standards at the threshold
stage, the Court has the opportunity to prevent both
systemic injury to the administration of justice and the
execution of Mr. Hoffman without a required evidentiary hearing.
---------------------------------♦---------------------------------
26
CONCLUSION
For all of these reasons, the Lawyers Committee
respectfully requests that the Court grant the petition,
reverse the Louisiana Supreme Court’s application of
Peña-Rodriguez, and order that court to remand for a
hearing on Mr. Hoffman’s claim of racial bias.
Respectfully submitted,
DENNIS LANE
ANDREW W. DAVIS
CLAIRE M. WILLIAMS
Counsel of Record
STINSON LLP
NATHANIEL C. DONOGHUE
STINSON LLP
1775 Pennsylvania Ave., NW,
50 South Sixth Street,
Suite 800
Suite 2600
Washington, D.C. 20006
Minneapolis, MN 55402
(202) 785-9100
(612) 335-1500
dennis.lane@stinson.com
andrew.davis@stinson.com
claire.williams@stinson.com
nathaniel.donoghue@stinson.com
DAMON T. HEWITT*
JON GREENBAUM
ARTHUR AGO
ALEXANDER BROOKS
BENJAMIN F. AIKEN
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW
1500 K Street, NW, Suite 900
Washington, DC 20005
(202) 662-8600
*Admitted in Pennsylvania only.
Practice limited to matters
before federal courts.
Counsel for Amicus Curiae
April 15, 2022
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