Amicus Curiae Brief — Pena-Rodriguez v. Colorado, 136 S. Ct. 1513 (2016) (No. 15-606)

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Supreme Court of the Unite

MIGUEL ANGEL PENA RODRIGUEZ,

Petitioner,

STATE OF COLORADO,

Respondent.

On Writ or CERTIORARI TO THE COLORADO SUPREME CouRT

AMICUS CURIAE BRIEF OF

CENTER ON THE ADMINISTRATION

OF CRIMINAL LAW

IN SUPPORT OF PETITIONER

—

DEBORAH UH“ GRAMICCIONI Davip A. BARRETT

Executive Director Counsel of Record

CENTER ON THE ADMINISTRATION JOSHUA J. LIBLING

OF CRIMINAL LAN VorAM BaRKAI

139 MacDougal Street Boies, SCHILLER

New York, NY 10011 & FLExNER LLP

(212) 998-6612 575 Lexington Avenue

New York, NY 10022

(212) 446-2300

dbarrett@bsfilp.com

Attorneys for Amicus Curiae

June 30, 2016

266157 —

COUNSEL PRESS

(ROO) 274-2271 © (ROO) 89.8889

QUESTION PRESENTED

Federal and state courts often inquire into the

validity of jury verdicts—including inquiries into the

possibility of juror misconduct—to ensure compliance

with the Sixth Amendment right to trial by an im-

partial jury. However, most states and the federal

system have a rule of evidence that generally prohib-

its the introduction of juror testimony regarding

statements made during deliberations. These prin-

ciples are known as “no-impeachment rules.” No-

impeachment rules are codified as Federal Rule of

Evidence 606(b) and its state analogues; in some

states, such rules exist as common-law principles.

In Amicus’s view, the question presented is

whether an exception to no-impeachment rules

should exist for those narrow circumstances where a

defendant offers evidence of racial bias to prove a vi-

olation of the Sixth Amendment right to an impartial

jury.

TABLE OF CONTENTS

QUESTION PRESENTED

re ii

TABLE OF AUTHORMTIE S iv

INTEREST OF AMICUS CURIAE.. ........0.:.c+:cces0ee000e 1

SUMMARY OF ARGUMENT... 2

rr (( ( ( ( ( 5

I. THE SIXTH AMENDMENT REQUIRES

AN EXCEPTION TO NO-IMPEACHMENT

RULES FOR RACIAL BIAS TO ENSURE

THE FAIR, CONSISTENT AND EFFEC-

TIVE ADMINISTRATION OF CRIMINAL

— —A—— ͤ———— — 5

A. The Right to an Impartial Jury, Free

of Racial Bias, Is Fundamental to

the Fair Administration of Criminal

B. Because Racial Bias Uniquely Har-

ms the Integrity of Jury Verdicts, It

Must Be Eradicated at Every Stage

E sicdetinrcinccccciancnseensannnniunes 7

Il. AN EXCEPTION TO NO-IMPEACHMENT

RULES FOR RACIAL BIAS WILL NOT

IMPAIR THE ADMINISTRATION OF CR-

. 11

A. Federal and State Courts Already

Routinely Inquire into Jury Deliber-

ations, Including for Juror Miscon-

B. Rule 606(b) Has Exceptions for Less

Odious Juror Influences than Expr-

I eistdeetetcrindsntanntioningtininn 16

. In Jurisdictions that Consider Racial

Bias, Such Inquiries Are Infrequent,

But Often Lead to Reversal 22

D. Courts Are Well-Equipped to Make

Judgments Concerning Alleged Rac-

ial Bias in Jury Deliberations ............. 27

e . We eon Me 39

, e . la

Appendix A: Jurisdictions with Sixth Amendment

Exceptions to No-Impeachment Rules for

r 2a

Appendix B: Jurisdictions with Exceptions to No-

Impeachment Rules for Racial or Ethnic

Bias Based on State Statute or Common

ill

TABLE OF AUTHORITIES

Cases

Aldridge v. United States,

I ld ee eal 10, 11

Arlington Heights v. Metro. Hous. Dev. Corp.,

I a saeeuamenliaoniion 30

Batson v. Kentucky,

I 8, 27, 28

Castaneda v. Partida,

!! . 8

Duncan v. Louisiana,

e, . ¶̃ a 6

Edmonson v. Leesville Concrete Co.,

,,, . 8

Evans v. Galbraith-Foxworth Lumber Co.,

31 S.W.2d 496 (Tex. Civ. App. 19299) 9“zU!' 2a

Farese v. United States,

428 F.2d 178 (5th Cir. 1970) ............ LRP EOS 21

Foster v. Chatman,

D 9, 28, 30

Georgia v. McCollum,

, e 8, 11

Gov't of Virgin Islands v. Joseph,

686 F.2d 867 (Sd Cir. 1980 21

Ham v. South Carolina,

re 8, 28

Haugh v. Jones & Laughlin Steel Corp.,

949 F. ad 914 (7th Cir. 1991) 32

Irvin v. Dowd,

nx X.

King v. United States,

4 ES CUED ccdcccvcnsscntocscccocnscussctonnnts 31

Kittle v. United States,

ee Fe ee le . 26

Little v. United States,

yn BA Foy Lk | 20

Mattox v. United States,

IIe 19

Miller-El u. Dretke,

e 9

Neal v. Delaware,

Zee 8

Parker v. Gladden,

, Cees ane eterno 19

Powell v. Allstate Insurance Co.,

. CE, BED tbcccccicescocccescvesccsoceseseseoss 35

Powers v. Ohio,

IE, MII oc. cssensiateatnaeedssnneddesarpenssasoniel 7,8

Reece u. Georgia,

SI RE eA ED Ma eR Nr 8

Remmer v. United States,

e haa ciceneetamiesionponne 19

Reynolds v. United States,

r . cubbbieisintinioebads 7

NRosales- Lopez u. United States,

, .. 28, 29

Rose v. Mitchell,

e os ccieincdebiebicidouinenounioiel passim

Shillcutt v. Gagnon,

827 F.2d 1155 (7th Cir. 1987) 33, 34

Smith v. Brewer,

444 F. Supp. 482 (S. D. Io Wa 2a

Smith v. Phillips,

e Eager Ee 13

Smith v. Texas,

,,, d 8

Snyder v. Louisiana,

, e Rn em 8, 28

Spencer v. State,

S06 S.B.2d 179 (Ga. 1980) . . eve e 34

State v. Brown,

ee tots MIE cscccaccecccccocctcctccsscesaneveccesous 33

State v. Brown,

GD ADS een, 14

State v. Hidanovic,

747 N.W.2d 463 (N. D. 2008) . . 34, 37

State v. Hunter,

eee 34

State v. Johnson,

e ̃᷑ . rT— 30

State v. Levitt,

ee 38

State v. Phillips,

927 A. 2d 931 (Conn. App. Ct. 2007). 30

State v. Santiago,

fo Ag ee 3, 35, 36

State v. Shillcutt,

ee ee eee eee 6666 36

Stimack v. Texas,

EE BEIGE vcctcccescsccccvvecssccccssocense 19

Tanner v. United States,

4 e 12, 14, 17

Tobias v. Smith,

468 F Supp. 1287 (W. D. N. V. 1979) .. 2a

Turner v. Louisiana,

„ I i ciicvintvndssntueudéiedetiensanbnedpemeiaie 20

vii

Turner v. Murray,

, è td 8, 11

United States ex rel. Owen v. McMann,

436 P. a G13 (2d Cir. 1970) ..........ccccccccccccccccccccscees. 18

United States v. Angulo,

United States v. Caldwell,

776 F.2d 989 (11th Cir. 1985)))0)0)0)⸗ cece eee eee 31

United States v. Caldwell,

ne 20

United States v. Hayat,

710 F.3d 875 (9th Cir. 2013) cee 23, la

United States v. Heller,

785 F.2d 1524 (11th Cir. 1986) 9

United States v. Henley,

238 F.3d 1111 (9th Cir. 2001) 23, la

United States v. Howard,

506 F.2d 865 (5th Cir. 1975) 17, 18

United States v. Lakhani,

450 FOG 171 (3a Car. 9007) ......ccccccccccccccccccccccosccess 32

United States v. McClinton,

135 F.3d 1178 (7th Cir. 1999) i)

United States v. Moses,

15 F.3d 774 (8th Cir. 1994) ccc ce eeceeeeee =

viii

United States v. Ortiz-Arrigoitia,

906 F.2d 436 (lst Cir. 19038) ..................cc.ccccseccceees 14

United States v. Rutherford,

371 F.3d 634 (9th Cir. 2004)) 20

United States v. Vasquez,

22 I BOO beiicnccecesecnnssecsscsncsonnets 21

United States v. Villar,

586 F. zd 76 (ist Cir. 2009).......................... 3, 32, 33

Wright v. United States,

559 F. Supp. 1139 (E.D.N.Y. 1983) .. . . la

C tituti | Provisi

e .. passim

Rules

, as cnstateladoeniebpnmieilonmane 13

F, EE RE ces erioneeeD 12, 13

, - passim

Other Authorities

Jane Kirtley, Keeping Jurors’ Lips Sealed,

AM. JOURNALISM REV., Jan.-Feb. 1998,

http://ajrarchive.org/Article.asp?id=1767 ............. 15

LEONARD B. SAND ET AL., MODERN FEDERAL

J GI ocncccccccceccctcccccccscccccesssess 15

Marcy Zora, The Real Social Network: How

Jurors’ Use of Social Media and Smart

Phones Affects A Defendant’s Sixth

Amendment Rights,

2012 U. ILL. L. Rev. 677 (20192) ............................. 16

MARK A. ROTHSTEIN ET AL.,

EMPLOYMENT LAW § 2.7 (5th ed. 2014) ................. 29

N.Y. STATE BAR ASS’N, SOCIAL MEDIA JURY

INSTRUCTIONS REPORT (2015) 16

THE DECLARATION OF INDEPENDENCE

RSE RTA .. .. 6

The Center on the Administration of Criminal

Law (the “Center”) respectfully submits this amicus

curiae brief in support of Petitioner in this case.!

INTEREST OF AMICUS CURIAE

The Center, based at New York University

School of Law,? is dedicated to defining and promot-

ing good government practices in the criminal-justice

system through academic research, litigation, and

formulating public policy. One of the Center’s guid-

ing principles in selecting cases to litigate is identify-

ing cases that raise substantial legal issues regard-

ing interpreting the Constitution, statutes, regula-

tions, or policies. The Center supports challenges to

practices that raise fundamental questions of de-

fendants’ rights or that the Center believes consti-

tute a misuse of government resources in view of

law-enforcement priorities. The Center also defends

criminal-justice practices where discretionary deci-

sions align with applicable law and standard practic-

Counsel for all parties have consented to the filing of this ami-

cus curiae brief. No counsel to any party authored this brief in

whole or in part, and no person or entity other than Amicus and

its counsel made a monetary contribution intended to fund the

preparation or submission of this brief.

2 No part of this brief purports to represent the views of New

York University School of Law, or of New York University, if

any.

es and are consistent with law-enforcement priori-

ties.

The Center’s appearance as amicus curiae in

this case is prompted by its belief that the Sixth

Amendment right to trial by an impartial jury re-

quires that an exception be made to no-impeachment

rules for cases in which defendants offer evidence of

racial bias during jury deliberations. The Center be-

lieves that protecting defendants’ Sixth Amendment

rights is necessary for the fair and effective admin-

istration of criminal justice. This case, therefore, is

important to the Center’s mission.

SUMMARY OF ARGUMENT

A rule permitting the impeachment of jury

verdicts where racial bias is expressed during delib-

erations would substantially enhance the admin-

istration of criminal justice. This amicus brief

demonstrates that rooting out racial bias in jury de-

liberations would not impose significant practical

burdens on the courts. To the extent that such a

burden may exist, it is greatly outweighed by the im-

portance both of eradicating racial bias from the jus-

tice system and of enhancing the appearance of jus-

tice in this critical respect.

In order to ensure compliance with the Sixth

Amendment’s requirement of trial by an impartial

jury, federal and state courts already inquire into the

validity of jury verdicts and deliberations on multiple

grounds. There is no practical reason why considera-

tion of racial bias should not be included among the

issues affecting impartiality that courts already ad-

dress—issues that are less pernicious than racial bi-

as.

Indeed, some 20 jurisdictions throughout the

country expressly provide for an exception’ to the no-

impeachment rules codified in Federal Rule of Evi-

dence 606(b) and in state analogues.‘ This fact alone

Some jurisdictions base the exception on the Sixth Amend-

ment. See, e.g., United States v. Villar, 586 F.3d 76 (Ist Cir.

2009) (“While we agree with the trial court that Rule 606(b)

precludes inquiry into juror prejudice, we hold that the court

has the discretion to conduct such an inquiry under the Sixth

Amendment and the Due Process Clause ). Others apply

principles of state law. See, e.g., State v. Santiago, 716 A.2d 1,

22 (Conn. 1998) (mandating consideration of racial bias “in the

exercise of our inherent supervisory authority over the admin-

istration of justice”).

Rule 606(b) of the Federal Rules of Evidence provides:

During an Inquiry Into the Validity of a Verdict or Indict-

ment.

(1) Prohibited Testimony or Other Evidence. During

an inquiry into the validity of a verdict or indict-

ment, a juror may not testify about any statement

made or incident that occurred during the jury’s de-

liberations; the effect of anything on that juror’s or

another juror’s vote; or any juror’s mental processes

concerning the verdict or indictment. The court

may not receive a juror’s affidavit or evidence of a

juror's statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was im-

properly brought to the jury's attention;

demonstrates the practicality of an exception. In

those 20 jurisdictions, furthermore, courts have de-

eloped protocols to ensure the sound administration

of trials and to limit slippery-slope problems that

might ensue from inquiry into jury deliberations.

Experience in other areas of the law further confirms

that courts are well-equipped to address and decide

issues of alleged racial bias.

Not only does an exception for racial bias fit

easily into the already-routine regime of post-verdict

inquiries into pernicious or improper juror influ-

ences, but a review of the case law in jurisdictions

where the inquiry is permitted shows that racial bias

arises infrequently—some 42 times over several dec-

ades. See infra Point II.C and Appendix A. At the

same time, however, courts that have addressed al

legations of racial bias have called the jury verdict

into question over half the time—a fact that demon-

strates the importance of recognizing an exception in

order to expunge racial bias that would have gone

unremedied were it not for the exveption.

The practicality of an exception for racial bias

should be dispositive. It is axiomatic that racial bias

has no place within the criminal-justice system. For

(B) an outside influence was improperly

brought to bear on any juror; or

on the verdict form.

FED. R. EViD. 606(b). Most states have analogous rules, either

codified or common-law.

that reason, the courts, including this Court, have

crafted rules and doctrines to protect defendants

from racial bias. Here, where a no-impeachment ex-

ception does not pose significant practical difficulties

to the justice system, the pernicious influence of ra-

cial bias compels the adoption of such an exception.

ARGUMENT

I. THE SIXTH AMENDMENT REQUIRES

AN EXCEPTION TO NO-IMPEACHMENT

RULES FOR RACIAL BIAS TO ENSURE

THE FAIR, CONSISTENT AND EFFEC-

TIVE ADMINISTRATION OF CRIMINAL

JUSTICE

The Sixth Amendment compels adoption of an

exception to no-impeachment rules in order to ensure

that racial discrimination plays no role in the jury

process from beginning to end in criminal cases. As

the Court has long recognized, racial bias affecting

the impartiality of a jury is especially harmful to the

integrity of the justice system. As a consequence, the

Court has crafted mechanisms to extirpate racial

considerations from almost every stage of the crimi-

nal process. The exception is jury deliberations,

where, in many jurisdictions, no-impeachment rules

preclude even considering whether racial bias affect-

ed the impartiality of jury deliberations.

Yet courts regularly inquire into jury delibera-

tions for other reasons. Indeed, the Court has per-

mitted post-trial inquiry and reversed jury verdicts

to ensure that the jury was not influenced by evils

far less pernicious than racial bias. Given the Sixth

Amendment's command of impartiality, this fact

highlights the incongruity of courts rooting out racial

bias from every stage of the criminal process, yet do-

ing nothing when racial bias may have infected the

jury deliberations—arguably the most crucial stage.

A. The Right to an Impartial Jury,

Free of Racial Bias, Is Fundamental

to the Fair Administration of Crim-

inal Justice

The Sixth Amendment right to trial by jury is

“the most priceless” of safeguards for the preserva-

tion of individual liberty and dignity in the American

criminal-justice system. Irvin v. Dowd, 366 U.S. 717,

721 (1961). In 1765, the First Congress of the Amer-

ican Colonies described trial by jury as an “inherent

and invaluable right,” Duncan v. Louisiana, 391 U.S.

145, 152 (1968); in 1774, the First Continental Con-

gress called it a “great and inestimable privilege,”

id.; and in 1776, the Declaration of Independence

bemoaned that King George III had “deprivied] us in

many cases, of the benefits of Trial by Jury,” THE

DECLARATION OF INDEPENDENCE para. 20 (U.S. 1776).

The right guaranteed by the Sixth Amend-

ment is the right to “a fair trial by a panel of impar-

tial, ‘indifferent’ jurors.” Irvin, 366 U.S. at 722. The

failure to accord this right to a defendant “violates

even the minimal standards of due process.” Id. As

Chief Justice Marshall recognized in 1807, “those

strong and deep impressions which close the mind

against the testimony that may be offered in opposi-

tion to them, which will combat that testimony and

resist its force, do constitute a sufficient objection” to

a juror. Reynolds v. United States, 98 U.S. 145, 155

(1878) (quoting 1 Burr’s Trial, 416 (1807)).

Biased jurors undermine a central purpose of

the jury system: “to impress upon the criminal de-

fendant and the community as a whole that a verdict

of conviction or acquittal is given in accordance with

the law by persons who are fair.” Powers v. Ohio,

499 U.S. 400, 413 (1991) (all criminal defendants

may object to race-based peremptory challenges, re-

gardless of the race of the defendant or excluded ju-

ror).

B. Because Racial Bias Uniquely

Harms the Integrity of Jury Ver-

dicts, It Must Be Eradicated at Eve-

ry Stage of Criminal Trials

Racial bias impairs both the integrity and re-

liability of the jury system, in violation of the Sixth

Amendment. Accordingly, the Court has implement-

ed mechanisms designed to expunge racial bias from

‘virtually every aspect of the criminal-justice system.

For example, racially discriminatory selection

of grand jurors violates the Constitution. See Cas-

taneda v. Partida, 430 U.S. 482, 501 (1977); Reece v.

Georgia, 350 U.S. 85, 87 (1955); Smith v. Texas, 311

U.S. 128, 130 (1940); Neal v. Delaware, 103 U.S. 370,

394 (1880). Selection of a grand-jury foreperson

based on race is unconstitutional. Rose v. Mitchell,

443 U.S. 545, 564-65 (1979). Similarly, during voir

dire, a trial court may properly inquire into possible

racial bias of prospective jurors before seating them.

See Turner v. Murray, 476 U.S. 28, 33 (1986); Ham v.

South Carolina, 409 U.S. 524, 529 (1973).

In selecting a petit jury, the Constitution pro-

hibits the racially discriminatory use of peremptory

challenges by prosecutors. Powers v. Ohio, 499 U.S.

400, 416 (1991); Batson v. Kentucky, 476 U.S. 79, 96

(1986). The same rule applies to peremptory chal-

lenges in civil trials, Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 631 (1991), and to peremptory

challenges exercised by criminal defendants, Georgia

v. McCollum, 505 U.S. 42, 59 (1992).

In recent years, the Court has repeatedly reaf-

firmed the importance of eliminating racial bias from

the criminal-justice system, especially through the

Batson framework. See, e.g., Snyder v. Louisiana,

552 U.S. 472, 482-83 (2008) (prosecutor's proffered

reasons for striking an African-American juror were

implausible); accord Miller-El v. Dretke, 545 U.S.

231, 266 (2005). Just last term, the Court reversed a

decades-old conviction on a finding that “prosecutors

were motivated in substantial part by race when

they struck [two jurors] from the jury 30 years ago.

Two peremptory strikes on the basis of race are two

more than the Constitution allows.” Foster v. Chat-

man, 136 S. Ct. 1737, 1755 (2016).

In light of the Court’s consistent reprobation of

bias in the criminal process, some lower courts have

implemented additional prophylactic rules to excise

racial and ethnic bias. For example, the Eleventh

Circuit has held that jury misconduct in the form of

racial and anti-Semitic slurs, brought to the atten-

tion of the court before the jury renders a verdict,

may warrant the declaration of a mistrial. United

States v. Heller, 785 F.2d 1524, 1528-29 (11th Cir.

1986); see United States v. McClinton, 135 F.3d 1178,

1187 (7th Cir. 1998).

Using rules such as these, courts strive to

eliminate racial and other forms of discrimination

from the arrest, indictment and juror-selection stag-

es of criminal trials—and even, in some cases, from

jury deliberations before the jury renders a verdict.

Anomalously, however, no-impeachment rules pre-

clude post-verdict inquiry into racial bias during jury

deliberations, which are arguably the most im-

portant stage of trial by jury An exception to no-

impeachment rules is necessary to ensure the uni-

form eradication of racial bias from the entire crimi-

nal-justice process.

“Discrimination on the basis of race, odious in

all aspects, is especially pernicious in the admin-

istration of justice.” Rose, 443 U.S. at 555. In fact,

“(njo surer way could be devised to bring the process-

es of justice into disrepute” than to “permit it to be

thought that persons entertaining a disqualifying

prejudice were allowed to serve as jurors.” Aldridge

v. United States, 283 U.S. 308, 315 (1931).

Racial discrimination undermines the institu-

tion of the jury by undercutting the democratic ideals

that the jury represents:

“(Sjuch discrimination ‘not only violates

our Constitution and the laws enacted

under it but is at war with our basic

concepts of a democratic society and a

representative government.’ The harm

is not only to the accused. It is to

society as a whole. ‘The injury is not

limited to the defendant—there is inju-

ry to the jury system, to the law as an

institution, to the community at large,

and to the democratic ideal reflected in

the processes of our courts.”

Rose, 443 U.S. at 556 (citations omitted).

Racial discrimination also impairs the accura-

cy of jury verdicts. “It is by now clear that conscious

and unconscious racism can affect the way white ju-

rors perceive minority defendants and the facts pre-

sented at their trials, perhaps determining the ver-

dict of guilt or innocence.” McCollum, 505 U.S. at 68

(O’Connor, J., dissenting).

The “pernicious” effect of racial bias among ju-

rors, Rose, 443 U.S. at 555, in conjunction with the

Sixth Amendment, requires that courts root out such

bias no matter when or where they discover it,

whether at the stage of jury selection—see, e.g.,

Turner, 476 U.S. at 33; Rose, 443 U.S. at 555-56; Al-

dridge, 283 U.S. at 314-15—or at the stage of jury

deliberations. An exception to no-impeachment rules

will ensure that racial and ethnic bias is extirpated

from the entire criminal-justice process, from arrest

through jury decision-making.

Il. AN EXCEPTION TO NO-IMPEACHMENT

RULES FOR RACIAL BIAS WILL NOT

IMPAIR THE ADMINISTRATION OF

CRIMINAL JUSTICE

The majority of federal appellate courts and

state courts of last resort that have considered the

interplay between no-impeachment rules and the

right to an impartial jury have held that courts may

inquire into alleged racial bias in jury deliberations.

The experience of these jurisdictions, especially when

considered in light of the inquiries into jury delibera-

tions that regularly occur already, shows that in-

quiry as to racial bias is entirely feasible.

A. Federal and State Courts Already

Routinely Inquire into Jury Delib-

erations, Including for Juror Mis-

conduct

The Colorado Supreme Court expressed con-

cern that “authorizing post-verdict investigations of

jurors” would “seriously disrupt the finality of the

process,” and that “the very potential for such inves-

tigations would shatter public confidence in the fun-

damental notion of trial by jury.” Pet. App. 13a

(quoting Tanner v. United States, 483 U.S. 107, 120

(1987)). Such fears are unfounded.

Federal and state courts already inquire into

the possibility of juror misconduct in order to ensure

compliance with the Sixth Amendment. As a conse-

quence, a Sixth Amendment exception to no-

impeachment rules that is targeted at racial bias

would not open up broad new avenues for inquiry.

Rather, all that is necessary is a limited extension of

existing grounds for inquiries—albeit an extension

critical to ensuring the fundamental fairness of all

jury trials.

Rule 33(a) of the Federal Rules of Criminal

Procedure broadly provides: “Upon the defendant’s

motion, the court may vacate any judgment and

grant a new trial if the interest of justice so re-

quires.” FED. R. CRIM. P 33(a). State rules are simi-

larly flexible. See, e.g., COLO. R. CRIM. P. 33(a) (Colo-

rado equivalent of federal rule).

As to juror misconduct, “[t]his Court has long

held that the remedy for allegations of juror partiali-

ty is a hearing in which the defendant has the oppor-

tunity to prove actual bias.” Smith v. Phillips, 455

U.S. 209, 215 (1982). This is a fundamental Consti-

tutional right: “Due process means a jury capable

and willing to decide the case solely on the evidence

before it, and a trial judge ever watchful to prevent

prejudicial occurrences and to determine the effect of

such occurrences when they happen.” Id. at 217.

Thus, in all jurisdictions, upon a proper initial show-

ing by the defendant, courts must hold proceedings

to determine if the jury “decide[d] the case solely on

the evidence before it,” to ensure that there were no

“prejudicial occurrences,” and to “determine the ef-

fect of such occurrences when they happen.” Id.

Courts maintain the flexibility and discretion

to fashion these inquiries according to the needs of

the situation: “[I]n light of the infinite variety of sit-

uations in which juror misconduct might be dis-

cerned and the need to protect jurors and the jury

process from undue imposition, the trial judge is

vested with the discretion to fashion an appropriate

and responsible procedure to determine whether

misconduct actually occurred and whether it was

prejudicial.” United States v. Ortiz-Arrigoitia, 996

F.2d 436, 443 (1st Cir. 1993). Similarly, in Connecti-

¢ut, for example, “a trial court must conduct a pre-

liminary inquiry, on the record, whenever it is pre-

sented with any allegations of jury misconduct in a

criminal case.” State v. Brown, 668 A.2d 1288, 1303

(Conn. 1995).

Federal and state no-impeachment rules are

an evidentiary limitation on this broad, Constitu-

tionally-mandated requirement of inquiry into juror

misconduct. Rule 606(b) of the Federal Rules of Evi-

dence and its state equivalents prohibit jurors from

testifying on certain topics, such as “any statement

made or incident that occurred during the jury’s de-

liberations.” As demonstrated in Point II.B below,

however, this evidentiary limitation is subject to

multiple exceptions.

The prevalence of post-verdict inquiries

demonstrates that by recognizing a racial-bias excep-

tion to Rule 606(b), the Court would not be creating a

new kind of hearing or procedure. Rather, a racial-

bias exception would modify the scope of the inquir-

ies that are already required in all jurisdictions. The

courts are well-equipped to handle such a change in

the scope of post-verdict hearings.

Additionally, although the secrecy of jury de-

liberations promotes “full and frank discussion in the

jury room,” Tanner, 483 U.S. at 120, the sanctity of

the jury process always has been subject to practical

limitations. For example, jurors are allowed to speak

to the media regarding jury deliberations, including

their mental processes, their motivations for voting

for conviction or acquittal, and comments made by

other jurors. While courts may discourage such dis-

closures, they cannot prevent jurors from making

them. See LEONARD B. SAND ET AL., MODERN FEDER.

AL JURY INSTRUCTIONS 4 9.09 (2015) (“As a matter of

law you will have the right after you are dismissed

from this courtroom to talk, if you want to talk, I

have no power to order you otherwise. We do see

in the newspapers and on television sometimes a

case is decided and the minute they reach the court-

house steps jurors are being interviewed by various

people, and they are making statements and saying

who said what to whom in the jury room. And how

many jurors thought this and how many jurors

thought that.”); Jane Kirtley, Keeping Jurors’ Lips

Sealed, AM. JOURNALISM REV., Jan.-Feb. 1998, avail-

able at http://ajrarchive.org/Article.asp?id=1767

(“Although judges often instruct jurors at the conclu-

sion of a trial that they are not obliged to talk to an-

yone about their service, they do have a constitution-

al right to speak, which doesn’t vanish simply be-

cause they have served on a jury.”).

More recently, the Internet and social media

have provided further outlets for jurors to freely dis-

cuss their deliberations. As with traditional media

interviews, jurors are not prohibited from revealing

what occurred in the jury room through posts on so-

cial media. See N.Y. STATE BAR ASS’N, SOCIAL MEDIA

JURY INSTRUCTIONS REPORT (2015),

https / WWW. nysba. org / Sections / Commercial Federal

Litigation / Com Fed PDFs / Social Media Jury Instr

uctions Report. html (anticipating the use of social

media after trial); Marcy Zora, The Real Social Net-

work: How Jurors’ Use of Social Media and Smart

Phones Affects A Defendant’s Sixth Amendment

Rights, 2012 U. ILL. L. REV. 577, 588 (2012) (a juror

posted on Twitter after a verdict, “I just gave away

TWELVE MILLION DOLLARS of somebody else’s

money’).

Thus, practically speaking, modifying the

scope of no-impeachment rules to enable jurors to

testify regarding racial bias during jury deliberations

would neither “disrupt the finality” of jury verdicts

nor “shatter public confidence” in the process, given

the limited nature of such a modification and the im-

perfect secrecy of the jury room.

B. Rule 606(b) Has Exceptions for Less Odi-

ous Juror Influences than Express Racial

Bias

Although, as discussed in Point I above, racial

bias has a particularly destructive effect on the fair-

ness and reliability of the jury system, Rule 606(b)’s

evidentiary limitation has exceptions for juror influ-

ences that do not have the same “pernicious” effect

on jury impartiality. See Rose, 443 U.S. at 555.

Under Rule 606(b) and similar common-law

principles, notwithstanding the general prohibition

on post-verdict testimony concerning jury delibera-

tions and mental processes, a juror may testify about

whether “extraneous prejudicial information was im-

properly brought to the jury’s attention,” or about

whether “an outside influence was improperly

brought to bear on any juror.” FED. R. EVID.

606(b)(2); see Tanner, 483 U.S. at 117 (providing ex-

amples of evidence, in categories described below,

which may be admitted notwithstanding Rule

606(b)’s broadly prohibitory language).

Courts have reversed convictions based

on prejudicial inferences that arose from information

other than the evidence presented at trial.

For example, notwithstanding Rule 606(b), juror tes-

timony is permitted concerning whether delibera-

tions were affected by personal knowledge concern-

ing a defendant, which may require reversal of a

conviction or a hearing into whether reversal is re-

quired. See, e.g., United States v. Howard, 506 F.2d

865, 866 (5th Cir. 1975) (“during the jury’s delibera-

tions one juror ‘stated that the defendant had been in

trouble two or three times”; “this fact was used to

pressure the affiant and another juror into aligning

with the rest of the panel”); United States ex rel. Ow-

en v. McMann, 435 F.2d 813, 815 (2d Cir. 1970) (ju-

rors informed the other jurors that they ‘knew al!

about’ [the defendant] and referred to unfavorable

meidents in [the defendant’s] life which were entirely

unrelated to the charge”).

Although less “pernicious” than racial bias,

Rose, 443 U.S. at 555, the concern in these cases is

similar to the concern in this case. In the personal

knowledge cases, a juror attributed criminal acts to

the defendant based on purported facts not admissi-

ble at trial. The same is true here. See Pet. App. 4a

(juror stated that “in his experience as an ex-law en-

forcement officer, Mexican men had a bravado that

caused them to believe they could do whatever they

wanted with women”). The only difference is that

the bias in Howard and Owen was the result of a ju-

ror's outside personal knowledge concerning the de-

fendant, whereas the bias in this case was the result

of racial prejudice. Even if this distinction were ma-

terial, it cuts in favor of permitting inquiry into ra-

cial bias, both because personal knowledge at least

may be accurate and because racial prejudice more

greatly affects societal perceptions of fairness in the

criminal-justice system.

Additionally, courts admit evidence of (and re-

verse jury verdicts because of) unauthorized commu-

nication by or to jurors. Courts inquire into such sit-

uations even where the juror himself or herself has

not made any statements or taken any overt action;

the possible prejudicial effect of such statements on a

juror is enough to require an inquiry. See, e.g., Par-

ker v. Gladden, 385 U.S. 363, 363-64 (1966) (a court

bailiff commented to a juror, “Oh that wicked fellow

[the defendant], he is guilty,” and said that if the ju-

ry erred “the Supreme Court will correct it”); Mattox

bv. United States, 146 U.S. 140, 142 (1892) (a court

bailiff said to jurors, “This is the third fellow [the de-

fendant] has killed”).

Along the same lines, evidence of attempts to

bribe jurors is admissible and may require reversal,

even where attempts were clearly unsuccessful (i.e.,

conviction occurred), because of possible prejudice

arising from the bribe attempt itself. Thus, in Rem-

mer v. United States, the Court directed a hearing

into allegations of juror bribery, even though an FBI

investigation had concluded that there was no

wrongdoing and the attempt had been made “in jest.”

347 U.S. 227, 228-29 (1954) (explaining that the FBI

investigation itself could have prejudiced the jury);

see Stimack v. Texas, 548 F.2d 588, 588 (5th Cir.

1977) (jurors testified that they viewed defendants

“more severely” after they received phone calls

threatening retribution by the Mafia if the jury did

not acquit).

Furthermore, courts reverse convictions in

situations involving communications that appear less

harmful than threats or bribery. In the case of gov-

ernment actors, “even seemingly innocuous juror

conversations and contact between such individuals

and a juror can trigger a presumption of prejudice.’

United States v. Rutherford, 371 F.3d 634, 643 (9th

Cir. 2004); see Turner v. Louisiana, 379 U.S. 466,

468-70 (1965) (deputy sheriffs who testified for pros-

ecution also drove jurors and spent social time with

them); United States v. Caldwell, 83 F.3d 954, 956

(8th Cir. 1996) (where jurors witnessed another ju-

rors husband enter the jury room during breaks,

“third-party communications regarding the sub-

stance of the trial are presumptively prejudicial and

can constitute grounds for a new trial unless the

government establishes that the contact was harm-

less to the defendant”); Little v. United States, 73

F.2d 861, 867 (10th Cir. 1934) (stenographer who re-

read jury instructions in the jury room may have in-

fluenced deliberations through misinterpretation or

use of emphasis).

If courts may permissibly inquire into wheth-

er a stenographer’s inadvertent use of emphasis

could bias a jury’s deliberations so severely as to

warrant overturning a conviction, there can be no

doubt that they must inquire into the far more trou-

bling circumstances of racial bias. These examples

show that courts are fully capable of investigating

potential juror bias following a verdict without dis-

rupting the system of jury deliberations.

Courts also have admitted evidence of (and re-

versed convictions due to) jurors’ entirely accidental

access to outside information, including in circum-

stances that suggest no inherent bias on the jurors’

part. See, e.g., Gov't of Virgin Islands v. Joseph, 685

F.2d 857, 862-65 (3d Cir. 1982) (two documents not

in evidence were inadvertently sent to the jury);

United States v. Vasquez, 597 F.2d 192, 193 (9th Cir.

1979) (jurors examined case file accidentally left in

jury room); Farese v. United States, 428 F.2d 178,

179-81 (5th Cir. 1970) Gurors found $750 in cash,

about which the court and parties were unaware, in

an attaché case during jury's examination of evi-

dence). Again, given the unique evil of racial bias, it

is anomalous to allow post-conviction inquiries into

innocent mistakes, but to preclude probing into ra-

cial bias.

It makes no sense to prohibit the introduction

of evidence showing overt racial bias by jurors. Ra-

cial prejudice is uniquely “pernicious” to the justice

system, Rose, 443 U.S. at 555, and demonstrates an

obvious and overt lack of the Constitutionally guar-

anteed impartiality. In the situations discussed

above, courts have proven their facility at entertain-

ing evidence concerning jury deliberations without

disrupting the criminal-justice system, and even the

mere possibility of bias arising from an external in-

fluence on the jury is enough to reverse a conviction.

C. In Jurisdictions that Consider Ra-

cial Bias, Such Inquiries Are Infre-

quent, But Often Lead to Reversal

The experience of the 20 jurisdictions that ex-

pressly allow consideration of jury-room racial bias

confirms that such inquiries are both practical and

crucial to protecting Sixth Amendment rights. In

those jurisdictions, allegations of racial bias among

jurors are relatively rare, confirming the rule’s prac-

ticality. When allegations of such bias do arise, how-

ever, courts have reversed for a new trial or called

for further inquiry in over half of the cases, confirm-

ing the rule’s importance. Together, this experience

demonstrates that consideration of racial bias does

not unduly consume judicial resources or impair the

administration of trials, but that the rule serves an

important function in rooting out racial bias.

To reach these conclusions, Amicus analyzed

the case law in jurisdictions that approve of courts’

consideration of racial bias in jury deliberations as

exceptions to no-impeachment rules. Amicus (i)

identified in each such jurisdiction the leading case

or cases that established the principle that courts

may inquire into racial bias in deliberations; (ii) ana-

lyzed the cases that were indicated on Westlaw as

“citing” the leading case, and (iii) identified whether

such judicial review resulted in affirmance or rever-

sal of the challenged verdict due to alleged racial bi-

a8. 5

For purposes of this survey, Amicus did not

include jurisdictions where courts have express d

support for a racial-bias exception but have not ex-

plicitly adopted such a rule. See, e.g., United States

v. Hayat, 710 F.3d 875, 886 (9th Cir. 2013) (citing

United States v. Henley, 238 F.3d 1111, 1121 (9th

Cir. 2001)). Notably, even after expressing support

for such an exception in dicta, the courts in these ju-

risdictions have not needed to resolve the question in

the several years since the issue has arisen, thus

confirming that such challenges are sufficiently rare

as to be administratively feasible.

The following chart summarizes the results:

An explanation of the methodology used by Amicus and its

case-by-case results are shown in Appendix A. This analysis

may have missed some cases that are unreported or unavailable

on Westlaw or otherwise were not identified by Amicus’s meth-

odology. Thus, the chart is suggestive rather than definitive.

Nonetheless, the research provides a general basis for under-

standing the frequency with which racial or ethnic bias in de-

liberations arises and leads to reversal.

Date of Number of | Num- Num-

First Cases Ad- ber of ber of

— dressing Cases Cases

Allow- Inquiry in- | Grant- | Deny-

ing Ra- to Ra- ing ing a

cial Bias ciaVEthnic New New

Chal- Bias in Ju- Trial or | Trial or

ase ry Deliber- | Hear- Hear-

ations ing ing

First

Circuit 2009 2 2 0

Seventh

Circuit® 1987 l 0 1

Connecticut 1998 5 3 2

Delaware 1996 1 1 0

District of

columbia 2013 1 0 1

Florida 1995 5 5 0

Georgia 1990 1 0 1

Hawaii 1996 1 0 1

—— 1991 2 1 1

setts

Minnesota 1980 5 3 2

1 (ethnic or . (that

Missouri 2010 religious bi- 2 0

gious

any bias)

1 (religious 1 Gee

New Jersey 1961 gious 0

bias) :

bias)

New York 1986 4 3 1

® Including federal district courts within the Circuit.

** Number of Num- Num-

First Cases Ad- ber of ber of

* dressing Cases Cases

Inquiry in- Grant- | Deny-

Allow-

8 to Ra- ing ing a

ru cial/Ethnic New New

Ch a Bias in Ju- | Trial or | Trial or

ian ry Deliber- | Hear- Hear-

ee ations ing ing

North Dako- 2000 n 0

Oklahoma 2012 1 1 0

Oregon 1981 N/A? N/A N/A

Rhode Is-

201 1 0 1

land :

Soutn Care | 1005 2 1 1

lina

Washington 1967 3 1 2

4 (including 1 (reli- e el

, * N g cluding

Wisconsin 1982 religious bi- gious ae

é religious

as) bias)

bias)

Total 42 | 24 18

The rarity of allegations of bias confirras the

practicality of Petitioner’s proposed rule.

Amicus’s

review of these 20 jurisdictions over several decades

showed 42 instances in which courts addressed in-

quiries into allegations of racial bias (including, in

some jurisdictions, ethnic or religious bias) during

jury deliberations. This shows that the availability

Although an Oregon statute establishes a racial-bias excep-

tion, no cases were identified which applied it.

of a remedy for bias during deliberations has not

opened the floodgates or overwhelmed the courts.

There is no reason to believe that the experience of

these 20 jurisdictions would not be reflected nation-

wide.

At the same time, the frequency with which a

new trial or hearing was ordered demonstrates the

importance of recognizing a Sixth Amendment excep-

tion to no-impeachment rules. In over half of the

cases in which courts considered allegations of racial

bias in jury deliberations—24 of 42 cases reviewed by

Amicus—courts have required new trials or inquiries

into the allegations.

With a low systemic cost to the courts as a

whole and a high individual value in the specific cas-

es in which it arises, consideration of racial bias in

jury deliberations is a paradigmatic example of a

beneficial rule. In the jurisdictions that already

permit it, the inquiry not only serves to root out ra-

cial bias in individual cases, but it carries enormous

symbolic importance as a normative statement that

the courts will not countenance the type of horrific

racial bias that may be revealed. See, e.g., Kittle v.

United States, 65 A.3d 1144, 1147-48, 1155 (D.C.

2013) (where certain jurors reportedly suggested

“that all ‘blacks’ are guilty,” the trial judge had dis-

cretion to consider juror testimony to ensure “the

public’s confidence in the fair administration of jus-

tice” and because of the “insidiousness of racial or

ethnic bias”). And even if the trial court concludes

that reversal is not warranted, the thoughtful and

deliberate consideration of potential racial bias

strongly validates the judicial process. The small

burden on the courts is thus outweighed both in in-

dividual cases and systemically.

D. Courts Are Well-Equipped to Make

Judgments Concerning Alleged Ra-

cial Bias in Jury Deliberations

The experience of the 20 jurisdictions that al-

low inquiry into racial bias in jury deliberations

demonstrates the error of the Colorado Supreme

Court’s view that it would be unable to “discern a di-

viding line between different types of juror bias” or

between racially biased comments of varying “severi-

ty.” Pet. App. 14a-15a. The Colorado Supreme

Court was wrong for at least four reasons.

First, courts frequently draw precisely that di-

viding line regarding racial bias in multiple contexts

other than jury deliberations.

For example, when faced with Batson chal-

lenges to prosecutors’ use of peremptory challenges,

courts are required to conduct “a sensitive inquiry

into such circumstantial and direct evidence of intent

as may be available” in determining whether prose-

cutors’ use of challenges was proper or whether pros-

ecutors acted with “discriminatory purpose.” Batson,

476 U.S. at 93-94. As part of this inquiry, courts

must look carefully at “all relevant circumstances,”

iacluding prosecutors’ questions and statements dur-

ing voir dire and any pattern of strikes against jurors

of a particular race. Id. at 96-97; see Foster, 136 8.

Ct. at 1748 (“We have ‘made it clear that in consid-

ering a Batson objection, or in reviewing a ruling

claimed to be Batson error, all of the circumstances

that bear upon the issue of racial animosity must be

consulted.” (quoting Snyder, 552 U.S. at 478)). In-

deed, determining a prosecutor's true motive may

well be a more difficult judgment than discerning un-

lawful bias in actual spoken comments made by de-

liberating jurors.

Similarly, during voir dire, courts are entitled

to ask questions about racial bias, and must decide

whether to excuse jurors for cause based on their re-

sponses, as well as any other comments they may

make about race. Under the circumstances of a par-

ticular case, it may even be an abuse of discretion to

fail to ask questions regarding such bias. See, e.g.,

Rosales-Lopez v. United States, 451 U.S. 182, 192

(1981) (“federal trial courts must make such an in-

quiry when requested by a defendant accused of a

violent crime and where the defendant and the vic-

tim are members of different racial or ethnic

groups’); Ham, 409 U.S. at 527 (“we think that the

Fourteenth Amendment required the judge in this

case to interrogate the jurors upon the subject of ra-

cial prejudice”). These decisions recognize that trial

courts are well-equipped to determine whether ju-

rors’ responses to such questions require their re-

moval for cause. See Rosales-Lopez, 451 U.S. at 189

(“Because the obligation to impanel an impartial jury

lies in the first instance with the trial judge, and be-

cause he must rely largely on his immediate percep-

tions, federal judges have been accorded ample dis-

cretion in determining how best to conduct the voir

dire.”).

In an analogous context, when courts evaluate

the motives underlying employment decisions, they

often distinguish between evidence of true racial an-

imus and “stray” racial comments. “Whereas direct

evidence of animus relates to the actor's state of

mind at the time of making an adverse decision, a

stray remark is simply a prejudicial comment that

does not bear upon the challenged employment deci-

sion.” MARK A. ROTHSTEIN ET AL., EMPLOYMENT LAW

§ 2.7 (5th ed. 2014). A “stray remark” may be identi-

fied, among other means, through its “remoteness in

person from the individual plaintiff and in time from

the adverse decision.” Id.

Assessing whether a municipality's refusal to

rezone was racially motivated—a situation that the

Court recently described as a “related context” to the

analysis of racial discrimination in jury selection,

Foster, 136 S. Ct. at 1748—requires a similar fact-

specific inquiry. “Determining whether invidious

discriminatory purpose was a motivating factor de-

mands a sensitive inquiry into such circumstantial

and direct evidence of intent as may be available.”

Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 266 (1977), cited by Foster, 136 S. Ct. at

1748.

The experience of jurisdictions permitting in-

quiry into racial bias during jury deliberations con-

firms that courts are capable of identifying the ap-

propriate “dividing line” in that context as well. In

State v. Johnson, 951 A.2d 1257 (Conn. 2008), for ex-

ample, the defendant claimed that jurors’ comments

identifying the race of certain spectators at the trial

showed that those jurors were racially biased. The

Connecticut Supreme Court engaged in a careful,

fact-specific review of the record—noting, for exam-

ple, that “five of these seven jurors first mentioned

the gender or height of the individuals rather than

their race“ before concluding that the jurors’ de-

scriptions of the spectators fell on the permissible

side of the line. See id. at 1279-80 (an alternative

holding would “demand an overly cynical and unjus-

tified assessment of the jurors”). The Connecticut

courts have further ensured the administrability of

this exception by limiting judicial inquiry to “objec-

tive evidence of racially related statements and be-

havior” rather than jurors’ subjective beliefs. State v.

Phillips, 927 A.2d 931, 937-38 (Conn. App. Ct. 2007)

(the court “need not, and should not, have asked ju-

rors whether anything improper had influenced their

verdict”).

Second, courts have already shown that they

are able to distinguish between allegations that trig-

ger further inquiry and implausible allegations that

require no further investigation when administering

the existing exceptions to Rule 606(b) for “extraneous

prejudicial information” and for “outside influ-

ence[s].”

Courts must sometimes decide whether allega-

tions of juror influence or prejudice are credible, typ-

ically based on the source and nature of the allega-

tions. Compare, e.g., United States u. Moses,

15 F.3d 774, 778 (8th Cir. 1994) (a juror’s claim that

someone tampered with his food or drink did not

warrant a hearing); United States v. Caldwell, 776

F.2d 989, 998 (11th Cir. 1985) (an anonymous tele-

phone call was “speculative and unreliable” and cre-

ated “no burden to investigate”); King v. United

States, 576 F.2d 432, 438 (2d Cir. 1978) (“weakly au-

thenticated, vague, and speculative” affidavits re-

quired no further inquiry), with United States v. An-

gulo, 4 F.3d 843, 847 (9th Cir. 1993) (a hearing was

necessary where a juror “informed the judge that she

had received a threatening phone call and that she

had told the other jurors about it”).

In other cases, even assuming the truth of the

allegations at hand, courts must decide whether the

statements that occurred could plausibly have influ-

enced the jury. Compare, e.g., United States bv.

Lakhani, 480 F.3d 171, 185 (3d Cir. 2007) (“Here, the

jury foreman’s ‘threat’ to keep juror number nine

from her new home for months is obvious hyperbo-

le.), with Haugh v. Jones & Laughlin Steel Corp.,

949 F.2d 914, 917 (7th Cir. 1991) (Posner, J.) (a new

trial was required where a marshal told a jury that it

would “be locked up till it renders its verdict, howev-

er long that may take,” because a marshal’s “official

position makes him likely to be believed”).

Similarly, courts implementing racial-bias ex-

ceptions to no-impeachment rules carefully examine

allegations to determine whether they are credible,

could plausibly have affected the jury, and deserve

further review.

For example, in United States v. Villar, 586

F.3d 76 (ist Cir. 2009), the First Circuit held that,

where “defense counsel received an e-mail message

from one of the jurors disclosing that during deliber-

ations another juror said, I guess we're profiling but

they cause all the trouble,” the district court had the

discretion to hear juror testimony “to determine

whether ethnically biased statements were made

during jury deliberations.” Id. at 78, 87 In doing so,

the court “emphasize[d] that not every stray or iso-

lated off-base statement made during deliberations

requires a hearing at which jury testimony is taken.”

Id. at 87; see Commonwealth v. McCowen, 939

N.E.2d 735, 765 (Mass. 2010) (“[T]he judge must de-

termine the precise content and context of the state-

ment to determine whether it reflects the juror's ac-

tual racial or ethnic bias, or whether it was said in

jest or otherwise bore a meaning that would fail to

establish racial bias.”).

By contrast, in State v. Brown, 62 A.3d 1099

(R. I. 2013), the Rhode Island Supreme Court held

that allegations that a juror had said that a Native

American defendant was “nothing,” that a juror had

described Native American defendants as “those

people,” and that a juror’s banging water bottles like

tom-tom drums did not require further inquiry, be-

cause that behavior, even if it had occurred, was

“ambiguous, ‘innocuous,’ and ‘capable of different

interpretations.” Id. at 1110-11.

Third, in jurisdictions where evidence of racial

bias in jury deliberations is considered, courts often

employ harmless-error review, i.e., determining

whether comments made a difference in the outcome

of the trial. See, e. g., Villar, 586 F.3d at 87 (after

first determining that “ethnically biased statements

were made during jury deliberations,” the trial court

should examine “whether there is a substantial

probability that any such comments made a differ-

ence in the outcome of the trial”); Shillcutt v. Gag-

non, 827 F.2d 1155 (7th Cir. 1987).

Through harmless-error review, courts are

able to draw a “dividing line” between comments that

require reversal and those do not, which the Colora-

do Supreme Court claimed was impossible. For ex-

ample, in Shillcutt, where the defendant was accused

of soliciting prostitutes, a juror said, “Let’s be logical.

He’s black and he sees a seventeen year old white

girl—I know the type.” Id. at 1156. Applying harm-

less-error review, the court concluded that there was

no “substantial probability that the alleged racial

slur made a difference in the outcome of the trial.”

Id. at 1159; see State v. Hidanovic, 747 N.W.2d 463,

467, 474 (N.D. 2008) (juror’s statements that Bosni-

ans “stole from my business” and “lied to me regard-

ing the theft and their conduct” “would not have af.

fected the verdict of a hypothetical average jury”);

State v. Hunter, 463 S.E.2d 314, 316 (S.C. 1995) (ju-

ror's use of racial slur, in context, did not deny de-

fendant a fair trial); Spencer v. State, 398 S.E.2d 179,

185 (Ga. 1990) (Gjuror’s affidavit showed “only that

two of the twelve jurors possessed some racial preju-

dice and does not establish that racial prejudice

caused those two jurors to vote to convict Spencer

and sentence him to die”).

The Colorado Supreme Court gave no reason

why harmless-error review is infeasible in this con-

text, given its frequent use to evaluate a host of dif-

ferent challenges to a verdict, ranging from mistaken

admission of harmful evidence to prosecutorial mis-

conduct to errors in jury instructions. All of these

situations may require judgment calls equally or

more difficult than assessing the impact of openly

expressed racial bias.

Fourth, courts have adopted familiar doc-

trines, presumptions, and rules—the very same judi-

cial doctrines already used in numerous legal con-

texts—to help them decide which types of comments

may have impermissibly infected the jury’s decision-

making with racial or ethnic bias.

In some jurisdictions, there are relatively

strict, bright-line rules requiring courts to hold hear-

ings on all allegations of racial bias. For example, in

Powell u. Allstate Insurance Co., 652 So. 2d 354 (Fla.

1995), the Florida Supreme Court found that when

“appeals to racial bias are made openly among the

jurors,” those statements “constitute overt acts of

misconduct” requiring a hearing. Id. at 357. The

court explained, “This is one way that we attempt to

draw a bright line.” Jd. Indeed, the court’s direction

that if the trial court determines that such state-

ments were made, it shall order a new trial” appar-

ently gave no discretion to excuse such statements as

non-prejudicial if they were in fact made. See id. at

358.

Similarly, in State v. Santiago, 710 A.2d 1

(Conn. 1998), the Connecticut Supreme Court in-

structed that in “all future cases in which a defend-

ant alleges that a juror has made racial epithets,”

the trial court should conduct “an extensive inquiry

of the person reporting the conduct, to include the

context of the remarks, an interview with any per-

sons likely to have been a witness to the alleged con-

duct, and the juror alleged to have made the re-

marks.” Id. at 22.

Other states leave greater discretion to trial

judges to dismiss allegations of racial bias without

holding a hearing. For example, Wisconsin uses the

same three-step procedure for assessing alleged ra-

cial bias that it uses for allegations of extraneous

prejudicial information or inappropriate outside in-

fluences. The Wisconsin Supreme Court has ex-

plained, “The first two steps involve evidentiary

questions: (1) Is the proffered evidence competent

under [Wisconsin law]; and (2) does the evidence

show error, that is, substantial grounds sufficient to

overturn the verc*ct. (3) The third question is

whether the party seeking to impeach the verdict

was prejudiced requiring that the verdict be upset.”

State v. Shillcutt, 350 N.W.2d 686, 689 (Wis. 1984).

Massachusetts has adopted a burden-shifting

framework:

The defendant therefore bears the ini-

tial burden of proving, by a preponder-

ance of the evidence, that the jury were

exposed to statements that infected the

deliberative process with racially or

ethnically charged language or stereo-

types. If the defendant meets this bur-

den, the burden then shifts to the

Commonwealth to show beyond a rea-

sonable doubt that the defendant was

not prejudiced by the jury’s exposure to

these statements.

McCowen, 939 N.E.2d at 766 (citations omitted).

Indeed, McCowen stands as an example of a

court drawing the dividing line between different cir-

cumstances and expressions of racial bias that the

Colorado Supreme Court thought impossible. There,

juror affidavits alleged “that another juror (Juror Y)

said that bruises like those found on the victim’s

body would result ‘when a big black guy beats up on

a small woman.” Id. at 761. After a hearing, the

trial judge concluded that in the jury room, “Juror

Y’s words provoked an immediate reaction from the

black female juror, who asked Juror Y what being

black had to do with it and called her a racist”; a

verbal “confrontation” then ensued. Id. at 762.

Based on that evidence, the court upheld the trial

court’s conclusion that the juror’s response to Juror Y

“served the beneficial purpose of exposing and ‘blunt-

ing the effect’ of the racial stereotype, and of warning

the jury of the risk of racial stereotypes infecting

their deliberations.” Id. at 766.

Moreover, as is common practice, appellate

courts have given deference to factual determina-

tions on the basis that the trial judge is best situated

to determine what affected jury deliberations. See

Hidanovic, 747 N.W.2d at 474 (applying abuse-of-

discretion review); State v. Levitt, 176 A.2d 465, 468-

69 (N.J. 1961) (“We cannot overlook the factor that

the judge who presided at the trial and the hearing

was in a better position than this court, which sees

only the cold record, to appraise the entire situation

and determine whether the defendant’s basic rights

were violated.”). This doctrine helps alleviate con-

cern that appellate judges will need to draw lines be-

tween factual circumstances based on “cold records.”

In sum, courts can effectively evaluate and

judge evidence of racial bias in jury deliberations us-

ing standard doctrines and procedures. The Colora-

do Supreme Court’s suggestion that such inquiries

would be unmanageable fails to pass Constitutional

muster.

CONCLUSION

For the foregoing reasons, the judgment of the

Colorado Supreme Court should be reversed.

June 30, 2016

DEBORAH L. GRAMICCIONI

Executive Director

CENTER ON THE

ADMINISTRATION OF

CRIMINAL LAW

139 MacDougal Street

New York, NY 10011

(212) 998-6612

debgram@nyu.edu

Respectfully submitted,

DAVID A. BARRETT

Counsel of Record

JOSHUA J. LIBLING

YOTAM BARKAI

BoOlES, SCHILLER

& FLEXNER LLP

575 Lexington Avenue

New York, NY 10022

(212) 446-2300

dbarrett@bsfllp.com

Attorneys for Amicus Curiae

APPENDICES

In preparing this brief, Amicus reviewed case

law in the 20 jurisdictions that Amicus identified as

allowing impeachment of jury verdicts on grounds of

racial or ethnic bias expressed during deliberations.

In each of the relevant jurisdictions, Amicus identi-

fied the leading case or cases that established the

principle that courts may consider racial bias in jury

deliberations. For each leading case, Amicus then

analyzed the cases that were indicated by Westlaw

as “citing” the leading case and that contained key-

words relating to racial bias. For each such case,

Amicus ascertained whether the criminal defendant

or petitioner had alleged that racial bias infected the

verdict. Amicus then recorded the outcome of each

case—whether racial bias was grounds for reversal

for a new trial or for a hearing into whether a new

trial was necessary, or whether the conviction was

affirmed. The 42 cases shown in the chart below met

these criteria.®

8 As noted above, Amicus dis include jurisdictions where

courts have expressed support for a racial-bias exception but

have not explicitly adopted such a rule. See, e.g., United States

v. Hayat, 710 F.3d 875, 886 (9th Cir. 2013) (citing United States

v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001)).

Amicus also did not include federal district courts in ju-

risdictions where courts of appeals have not adopted a circuit-

wide exception. See, e.g., Wright v. United States, 559 F. Supp.

1139, 1151 (E.D.N.Y. 1983), aff'd on other grounds, 732 F.2d

1048 (2d Cir. 1984); Tobias v. Smith, 468 F. Supp. 1287, 1290

Appendix A

Jurisdictions with Sixth Amendment

Exceptions to No-Impeachment Rules

for Racial or Ethnic Bias

Cases Addressing

Inquiry into Ra-

ciaV/Ethnic Bias in

Jury Deliberations

New

Trial or

No New

Trial or

Hearing

First Circuit

United States v. Vil-

lar, 586 F.3d 76 (Ist

Cir. 2009)

First Circuit

United States v.

50-DBH, 2013 WL

4483062 (D. Me. Aug.

19, 2013)

Fuentes, No. 2:12-CR-

Seventh

Circuit

Shillcutt v. Gagnon,

827 F.2d 1155 (7th

Cir. 1987)

(W.D.N.Y. 1979); Smith v. Brewer, 444 F Supp. 482, 490 (S.D.

Iowa), aff'd on other grounds, 577 F.2d 466 (8th Cir. 1978).

Finally, Amicus did not include cases that were decided

before the adoption of no-impeachment rules in their respective

jurisdictions. See, e.g., Evans v. Galbraith-Foxworth Lumber

Co., 31 S.W.2d 496, 500 (Tex. Civ. App. 1929).

Although the foregoing categories of cases are not in-

cluded in the analysis, they provide additional practical support

for recognizing a racial bias exception to no-impeachment rules.

Cases Addressing

Inquiry into Ra-

cial Ethnic Bias in

Jury Deliberations

No New

Trial or

Delaware

Fisher v. State, 690

A.2d 917 (Del. 1996)

District of

Columbia

Kittle v. United

States, 65 A.3d 1144

(D.C. 2013)

Georgia

Spencer v. State, 398

S.E.2d 179 (Ga. 1990)

Massachusetts

Commonwealth v.

McCowen, 939 N.E.2d

735 (Mass. 2010)

Massachusetts

Commonwealth v.

Laguer, 571 N.E.2d

371 (Mass. 1991)

Missouri

Fleshner v. Pepose

Vision Inst., P.C., 304

S.W.3d 81 (Mo. 2010)

(ethnic or religious

bias)“

New Jersey

State v. Levitt, 176

A.2d 465 (N.J. 1961)

(religious bias)

North Dakota

State v. Hidanovic,

747 N.W.2d 463 (N. D.

2008)

Six states (Missouri, Wisconsin, Connecticut, Florida, Okla-

homa and Washington) have applied a bias exception to no-

The civil cases fur-

ther demonstrate feasibility and usefulness, as they show that

expanding the racial-bias exception to include civil cases does

not impair the administration of justice.

impeachment rules in certain civil cases.

Cases Addressing

Inquiry into Ra-

ciaVEthnic Bias in

Jury Deliberations

New

Trial or

Hearing

Granted

State v. Brown, 62

A.3d 1099 (R. I. 2013)

Rhode Island

State v. Hunter, 463

S8. E. 2d 314 (S.C.

1995)

South

Carolina

Bennett v. Stirling,

No. CV 2:13-3191-

RMG, 2016 WL X

1070812 OD. S. C. Mar.

16, 2016)

South

Carolina

State v. Shillcutt, 350

N.W.2d 686 (Wis.

1984)

Wisconsin

After Hour Welding,

Inc. v. Laneil Mgmt.

Co., 324 N.W.2d 686 X

(Wis. 1982) (religious

bias)

Wisconsin

Anderson v. Burnett

Cty., 558 N. W. 2d 636

(Wis. Ct. App. 1996)

(religious bias)

Wisconsin

Jacobs v. Buchanan,

364 N.W.2d 181 (Wis.

Ct. App. 1985)

Wisconsin

Appendix B

Jurisdictions with Exceptions to No-

Impeachment Rules for Racial or Ethnic Bias

Based on State Statute or Common Law

Case Addressing

Inquiry into Ra-

cial/Ethnic Bias in

Jury Deliberations

New Trial

or Hear-

ing

Granted

Connecticut

State v. Johnson, 951

A.2d 1257 (Conn.

2008)

Connecticut

State v. Anderson,

773 A.2d 287 (Conn.

2001)

Connecticut

State v. Santiago,

715 A.2d 1 (Conn.

1998)

Connecticut

State v. Phillips, 927

A.2d 931 (Conn. App.

Ct. 2007)

Connecticut

Horan v. Murgio, No.

538130, 1998 WL

695282 (Conn. Su-

per. Ct. Sept. 23,

1998)

Florida

Marshall v. State,

854 So. 2d 1235 (Fla.

2003)

Florida

Powell v. Allstate

Ins. Co., 652 So. 2d

354 (Fla. 1995)

Case Addressing

Inquiry into Ra-

ciaV/Ethnic Bias in

Jury Deliberations

No New

Trial or

Hearing

Florida

Wright v. CTL Dis-

tribution, Inc., 679

So. 2d 1233 (Fla.

Dist. Ct. App. 1996)

Florida

Singleta;-y ex rel.

Barnett Banks Trust

Co. v. Lewis, 584 So.

2d 634 (Fla. Dist. Ct.

App. 1991)

Florida

Sanchez v. Int'l Park

Condo. Ass n, Inc.,

563 So. 2d 197 (Fla.

Dist. Ct. App. 1990)

Hawaii

State v. Jackson, 912

P.2d 71 (Haw. 1996)

Minnesota

State v. Bowles, 530

N.W.2d 521 (Minn.

1995)

Minnesota

State v. Callender,

297 N.W.2d 744

(Minn. 1980)

Minnesota

State v. Vu, No. A04-

235, 2005 WL

623236 (Minn. Ct.

App. Mar. 15, 2005)

Minnesota

State v. Hinton, No.

C1-98-379, 1998 WL

887495 (Minn. Ct.

App. Dec. 22, 1998)

Case Addressing

Inquiry into Ra-

ciaV/Ethnic Bias in

Jury Deliberations

No New

Trial or

Hearing

Minnesota

State v. Watkins, 526

N.W.2d 638 (Minn.

Ct. App. 1995)

New York

People v. Estella, 889

N.Y.S.2d 759 (N. V.

App. Div. 2009)

New York

Shung Lam v.

Cheng, 773 N.Y.S.2d

303 (N.Y. App. Div.

2004)

New York

People v. Rukaj, 506

N.Y.S.2d 677 (N. v.

App. Div. 1986)

New York

People v. Whitmore,

257 N.Y.S.2d 787

(N.Y. Sup. Ct. 1965)

Oklahoma

Fields v. Saunders,

278 P.3d 577 (Okla.

2012)

Oregon

OR. REV. STAT. ANN.

§ 40.335 (West 1981)

(Conference Commit-

tee Commentary)

N/A

Washington

Seattle v. Jackson,

425 P.2d 385 (Wash.

1967)

% According to the legislative history of Oregon s analogue to

Rule 606(b), the legislature understood the rule to allow a juror

to testify about a fellow juror who “manifested extreme racial

prejudice towards one of the parties“ However, Amicus found

no cases that applied the statute in that manner.

Case Addressing | New Trial

Inquiry into Ra- | or Hear- a

ciaV/Ethnic Bias in ing H

Jury Deliberations | Granted S

Turner v. Stime, 222

Washington | P.3d 1243 (Wash. Ct.

App. 2009) REE oS Fae

State v. Hall, 697

Washington | P.2d 597 (Wash. Ct.

App. 1985)

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