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

JUN 30 2016

No. 15-606 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MIGUEL ANGEL PENA RODRIGUEZ,

Petitioner,

Vv.

STATE OF COLORADO,

Respondent.

On Writ of Certiorari

to the Colorado Supreme Court

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

June 30, 2016 * Counsel of Record

a ALTERAC A A NR AN TTC

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................ssse0e00

INTEREST OF AMICUS CURIAE...................+.

INTRODUCTION AND SUMMARY OF AR-

I ditecsntnnspinsinncinnsininsnaniigapialinienititipaiaianiga

THE COURT SHOULD HOLD THAT A NO-

IMPEACHMENT RULE MAY NOT BAR EV-

IDENCE OF RACIAL BIAS OFFERED TO

PROVE A SIXTH AMENDMENT VIOLA-

I.

If.

ITT.

THE SIXTH AND FOURTEENTH

AMENDMENTS TOGETHER REFLECT A

CONSTITUTIONAL COMMITMENT TO

RACE-BLIND DECISION-MAKING IN

DERE TEED GNU cscctcccpensenncsecenssnenessens

THIS COURT'S CASES HAVE LONG RE-

FLECTED THE IMPORTANCE OF RACE-

BLIND DECISIONMAKING IN THE JU-

GO CIEE, sncinsicaceetninelinsennnincetachoinniinsepaces

APPLYING STATE NO-IMPEACHMENT

RULES IN THE CONTEXT OF ALLEGA-

TIONS OF RACIAL BIAS UNDER-

MINATES OUR CONSTITUTIONAL

COMMITMENT TO RACE-BLIND DECI-

SION-MAKING IN THE JURY CONTEXT

UIE ‘virciasinsiisticniisiisinicesitionniiiounsdiieniiniaataciiipamen

(i)

18

23

ll

TABLE OF AUTHORITIES

Page(s)

Cases

Aldridge v. United States,

I Is I is cai ciecensnnsnene 6, 7, 21

Batson v. Kentucky,

a idaictaieeeaal 22, 23

Cassell v. Texas,

ns 19

Castaneda v. Partida,

I 19

Foster v. Chatman,

136 S. Ct. 1737 (2016).............. SRE SIS 23

Georgia v. McCollum,

RE aR a Sn Pee 24

Ham v. South Carolina,

I Py CD CIE viececcccvecocecdcocseccsencsouces 21

Hernandez v. Texas,

SRN, ROT ER 6

Holland v. Illinois,

| eR! 20, 21

Ristaino v. Ross,

I a eutcuas 22

Rosales-Lopez v. United States,

Se ceasioueee 22

Rose v. Mitchell,

443 U.S. 646 (1979)...................0000. 6, 18, 19, 25

TABLE OF AUTHORITIES - cont’d.

Page(s)

Strauder v. West Virginia,

1k |) een 6, 19, 25

Taylor v. Louisiana,

a aimaneusann 20

Turner v. Murray,

I ie 22

United States v. Burr,

25 F Cas. 49 (C.C.D. Va. 1807)................. 2,9

Vasquez v. Hillery,

I 20

I 15, 16

Pe, Ss Ce aiiiisttirskiteniieniincenciiinn 6, 14, 15, 17

Civil Rights (Ku Klux Klan) Act of 1871,

ch. 22, 17 Stat. 13 (codified as amended

in scattered sections of 10, 18, 28, and 42

ENIIIITEI lscsacissincasiehchescnteddinstenbslansalitbanaiastnndbababenetes 11

Cong. Globe, 39th Cong., Ist Sess. (1866).... 9

Cong. Globe, 42d Cong., Ist Sess.

Sa iniisistehdiaseaneiasigeamasubennasnainthsiaiicsmaattian 10, 11, 12

Cong. Globe, 42d Cong., Ist Sess. App.

SEI Atiiceiahtinnadsnsendabunbectastibanidantatanenndisiei 11

Cong. Globe, 42d Cong. 2d _ Sess.

SEE idinicebsntdeiponcssienibdetemnouneynaodantionti 5, 13, 14, 15, 16

lV

TABLE OF AUTHORITIES - cont'd.

Page(s)

of 5, Serene 4,5,7

U.S. Const. amend. XIV, § 1 ......................... 5, 10

Books, Artic] | Other Authoriti

2 Joseph Story, Commentaries on the Con-

stitution of the United States (5th ed.

UNE diattnnitnhtiosantiddindnsbiniaieinbintiniietienniisetaies 8

3 J.H. Thomas, A Systematic Arrangement

of Lord Coke’s First Institute of the Laws

aR RE Ae 8

3 William Blackstone, Commentaries .......... 7,8

4 William Blackstone, Commentaries .......... 7

Akhil Reed Amar, The Bill of Rights: Crea-

tion and Reconstruction (1998).................. 4,8

Jacobus tenBroek, Equal Under Law

NIGER Sate Br ROS SE SP A oe 2 a 10

James Forman, Jr., Juries and Race in the

Nineteenth Century, 113 Yale L.J. 895

EEE RS Ee ee a Ne ee 5, 10, 11, 12, 13

Message from the President of the United

States, Transmitting a Memorial of a

Convention of Colored Citizens Assem-

bled in the City of Montgomery, Ala. on

December 2, 1874, H. Exec. Doc No. 46

ESR RAR ey Rat PE AE Te 16, 17

Vv

TABLE OF AUTHORITIES - cont'd.

Page(s)

Report of the Joint Committee on Recon-

struction, at the First Session Thirty-

Ninth Congress (1866) ......................c0ce0000 9, 10

1

INTEREST OF AMICUS CURIAE'!

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and

action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and

with legal scholars to improve understanding of the

Constitution and preserve the rights and freedoms it

guarantees. CAC has a strong interest in ensuring

that the Constitution applies as robustly as its text

and history require and accordingly has an interest in

this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Central to the constitutional guarantee that all

persons are entitled to a “speedy and public” trial by

jury is the idea that the members of that jury must be

“impartial.” Made explicit in the constitutional text

itself, this commitment to an “impartial” jury reflects

the Framers’ belief that a defendant should be con-

victed of a crime based solely on the evidence pre-

sented at trial, not on preexisting juror biases or pre-

conceptions. As Chief Justice John Marshall wrote,

“The great value of the trial by jury certainly consists

in its fairness and impartiality. Those who most

prize the institution, prize it because it furnishes a

! The parties have consented to the filing of this brief and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amicus states that no coun-

sel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other

than amicus or its counsel made a monetary contribution to its

preparation or submission.

2

tribunal which may be expected to be uninfluenced by

an undue bias of the mind.” United States v. Burr, 25

F. Cas. 49, 50 (C.C.D. Va. 1807). This case presents

allegations of juror bias that, if credited, leave no

doubt that the defendant’s Sixth Amendment right to

an impartial jury was violated. Applying a state no-

impeachment rule in this context and thereby allow-

ing this potential constitutional violation to go un-

addressed, as the Colorado Supreme Court did, un-

dermines this nation’s longstanding historical and

constitutional commitment to race-blind decision-

making in the jury context. The judgment of the Col-

orado Supreme Court should be reversed.

In May 2007, a man entered a women’s bathroom

at a horse-racing track and asked two teenage sisters

inside if they wanted to drink beer or “party.” When

they said no, the man turned off the lights, grabbed

one girl's shoulder and unsuccessfully tried to touch

her breast, and grabbed the other girl’s shoulder and

buttocks. The sisters reported the incident to their

father, an employee of the racetrack; based on their

description of the assailant, he concluded that it was

petitioner Miguel Angel Peyia Rodriguez. Late that

night, the girls identified Pefia Rodriguez as their as-

sailant based on a show-up in which Pefia Rodriguez

was standing on the side of the road and the girls

were in a police cruiser, about fifteen feet away.

Based on the incident, Pefia Rodriguez was

charged with four offenses: one felony count of at-

tempted sexual assault on a victim less than fifteen;

one misdemeanor count of unlawful sexual contact;

and two misdemeanor counts of harassment. Insist-

ing that he had been misidentified, Pefia Rodriguez

requested a trial. At trial, the prosecution empha-

sized the victims pretrial and in-court identifications

of Petia Rodriguez, while the defense counsel called

3

into question the reliability of those identifications.

Pefia Rodriguez also presented an alibi witness, who

testified that he was with Pefia Rodriguez when the

offenses occurred. The prosecution encouraged the

jury to “[wjeigh the credibility of the girls against

[the credibility of the alibi witness].” Pet’r’s Br. 6

(quoting Tr. 48 (Feb. 25, 2010)).

Although the jury was initially unable to reach a

verdict, the judge urged the jury to keep deliberating.

After twelve total hours of deliberations, the jury

convicted Pefia Rodriguez on the three misdemeanor

charges; the jury was unable to reach a verdict on the

felony charge. After the jury was dismissed, two of

its members spoke to defense counsel and explained

that during deliberations another juror had “ex-

pressed a bias toward [Petitioner] and the alibi wit-

ness because they were Hispanic.” Pet. App. 4a. Ac-

cording to these jurors, the other juror said that the

defendant “did it because he’s Mexican and Mexican

men take whatever they want,” and that “Mexican

men had a bravado that caused them to believe they

could do whatever they wanted with women.” Zd.; see

id. (“Mexican men [fare] physically controlling of

women because they have a sense of entitlement and

think they can ‘do whatever they want’ with wom-

en.”). Finally, these jurors reported that the other

juror also discounted the testimony of Pefia Rodri-

guez’s alibi witness, saying he was not “credible be-

cause, among other things, he was ‘an illegal,” id. at

4a-5a (internal quotation marks omitted), even

though the witness had testified at trial that he was a

legal resident, Pet’r’s Br. 8.

Despite these allegations that racial prejudice in-

fected the jury’s verdict, the trial court concluded that

nothing could be done because Colorado's no-

impeachment rule barred inquiry into “what hap-

4

penfed] in the jury room.” Pet’r’s Br. 9 (quoting J.A.

125). Divided panels of both the Colorado Court of

Appeals and the Colorado Supreme Court affirmed.

Pet. App. 28a; see id. at la. Amicus submits this brief

to demonstrate that allowing no-impeachment rules

to bar evidence of racial preju«*ce in jury delibera-

tions is at odds with this natiou’. longstanding histor-

ical and constitutional commitment to jury delibera-

tions that are free of racial bias.

When the Framers drafted our enduring charter,

they enshrined the right to a jury trial in the original

Bill of Rights, U.S. Const. amend. VI, viewing it as

critical to a system of ordered liberty, see Akhil Reed

Amar, The Bill of Rights: Creation and Reconstruc-

tion 96-97 (1998) (“[A] paradigmatic image underly-

ing the original Bill of Rights,” the “jury summed

up—indeed embodied—the ideals of populism, feder-

alism, and civic virtue that were the essence of the

original Bill of Rights.”). As the Amendment’s text

makes clear, critical to the Framers’ conception of a

jury was the idea that it be “impartial,” U.S. Const.

amend VI (“the accused shall enjoy the right to a

speedy and public trial, by an impartial jury”), capa-

ble of reaching verdicts based only on the evidence

presented in court and not on preconceived biases

about the parties.

Although the Framers’ original conception of bias

focused on jurors who knew one of the parties or had

some other interest in the case, the Constitution’s ex-

plicit requirement that jurors be “impartial” also pro-

hibits jurors who have racial biases or prejudices that

would affect their ability to dispassionately assess the

evidence presented in court. Indeed, in the aftermath

of the Civil War, experiences in the South “chal-

lenged” the “colonial belief that the jury was a bul-

wark of liberty,” as it became clear that racial biases

5

were infecting jury deliberations with “[ajll-white ju-

ries punish[ing] black defendants particularly harsh-

ly, 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). In re-

sponse, Congress passed two pieces of legislation de-

signed to guard against racial prejudices infecting

Southern juries: the Civil Rights (Ku Klux Klan) Act

of 1871, which “denied jury eligibility to persons who

had conspired to deny the civil rights of blacks,” For-

man, supra, at 923, and the Civil Rights Act of 1875,

which guaranteed black Americans the right to serve

on juries, id. at 926, 930.

Throughout the debates over these pieces of legis-

lation, the bills’ proponents made clear that racial bi-

as in jury decision-making was intolerable, running

afoul of both the Sixth Amendment’s guarantee of an

“impartial” jury, U.S. Const. amend. VI, and the new-

ly adopted Fourteenth Amendment’s promise that all

persons should enjoy the “equal protection of the

laws,” id. amend. XIV, § 1. Invoking the Constitu-

tion’s guarantee that “every man shall have a trial by

an impartial jury,” Senator John Sherman of Ohio

asked “what kind of trial would that be to which you

would subject four millions of the people of the Unit-

ed States in the southern States, where by the law of

some of them every man of that race is excluded from

sitting as a juryman on a trial?’ Cong. Globe, 42d

Cong., 2d Sess. 844 (1872). And Senator Oliver Mor-

ton of Indiana asked “whether the _ colored

men have the equal protection of the laws when

the control of their right to life, liberty, and property

is placed exclusively in the hands of another race of

men, hostile to them, in many respects prejudiced

against them, men who have been educated and

6

taught to believe that colored men have no civil and

political nghts that white men are bound to respect.”

3 Cong. Rec. 1795 (1875) (statement of Sen. Morton).

Answering his own question, Senator Morton ex-

plained that the “common sense of mankind [would]

revolt at that proposition.” Jd. In sum, these debates

reflected the strong conviction that the Constitution

does not tolerate racial prejudice or bias in the ad-

ministration of the nation’s justice system.

This Court has also long recognized that racial

bias in the administration of justice, including in jury

decision-making, cannot be squared with our consti-

tutional guarantee of impartial juries and equal pro-

tection under the law. See Rose v. Mitchell, 443 U.S.

545, 555 (1979) (plurality opinion) (“[{d]iscrimination

on the basis of race, odious in all aspects, is especiaily

pernicious in the administration of justice”). Reflect-

ing the importance of eliminating all racial bias from

the administration of justice, the Court has repeated-

ly taken steps to eliminate purposeful racial discrim-

ination at multiple stages of the jury selection pro-

cess, holding for example that it is unconstitutional to

discriminate against individuals in forming grand or

petit juries. See Strauder v. West Virginia, 100 U.S.

303 (1879), abrogated by Taylor v. Louisiana, 419

U.S. 522 (1975); Hernandez v. Texas, 347 U.S. 475

(1954). Significantly, the Court has also held that

there are contexts in which it is permissible to ques-

tion potential jurors about whether they harbor any

racial prejudices. As this Court has noted, “if

any {juror} was shown to entertain a prejudice

which would preclude his rendering a fair verdict, a

gross injustice would be perpetrated in allowing him

to sit.” Aldridge v. United States, 283 U.S. 308, 314

(1931).

7

Notwithstanding this strong constitutional and

historical commitment to the race-blind administra-

tion of justice, Pefia Rodriguez was likely convicted of

a crime by a jury in which someone “was shown to en-

tertain a prejudice,” id., simply because Colorado's

no-impeachment rule barred inquiry into what had

happened in the jury room. This is wrong. Allowing

Colorado's no-impeachment rule to trump Pefia Ro-

driguez’s Sixth Amendment right to an impartial jury

and his Fourteenth Amendment right to the equal

protection of the laws would undermine our constitu-

tional and historical commitment to race-blind jury

deliberations. This Court should reaffirm that racial

prejudice has no place in our justice system and hold

that no-impeachment rules cannot be applied consti-

tutionally in the context of allegations of racial bias.

ARGUMENT

THE COURT SHOULD HOLD THAT A NO-

IMPEACHMENT RULE MAY NOT BAR EVI-

DENCE OF RACIAL BIAS OFFERED TO

PROVE A SIXTH AMENDMENT VIOLATION

I. THE SIXTH AND FOURTEENTH AMEND-

MENTS TOGETHER REFLECT A CONSTI-

TUTIONAL COMMITMENT TO _ RACE-

BLIND DECISION-MAKING IN THE JURY

CONTEXT

The Sixth Amendment provides that “[ijn all

criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial ju-

ry of the State and district wherein the crime shall

have been committed.” U.S. Const. amend. VI.

Strongly rooted in the English common law, 4 Wil-

liam Blackstone, Commentaries *350 (jury is a “sa-

cred bulwark” of liberty); see 3 id. at 379 (“the most

transcendent privilege which any subject can enjoy,

8

or wish for, [is] that he cannot be affected either in

his property, his liberty, or his person, but by the

unanimous consent of twelve of his neighbours and

equals*), this jury guarantee was of paramount im-

portance to the Framers, who viewed it as a central

feature of a system of ordered liberty, see Amar, su-

pra, at 96-97 (“[A] paradigmatic image underlying the

original Bill of Rights,” the “jury summed up—indeed

embodied—the ideals of populism, federalism, and

civic virtue that were the essence of the original Bill

of Rights.”); see also 2 Joseph Story, Commentaries on

the Constitution of the United States 558 (5th ed.

1891) (describing jury as “the great bulwark of [our]

civil and political liberties”).

As the Amendment’s text makes clear, critical to

the Framers’ conception of a jury was the belief that

members of the jury should be impartial, that is, free

of bias toward or against any of the parties. At com-

mon law, the proscription against bias was commonly

used to prohibit jurors from serving if they were re-

lated to one of the parties or had some other interest

in the case. According to Blackstone, “[j]urors may be

challenged proper affectum, for suspicion of bias or

partiality. A principal challenge is such where

the cause assigned carries with it prima facie evident

marks of suspicion either of malice or favour: as, that

a juror is of kin to either party within the ninth de-

gree; that he has been arbitrator on either side;

that he has an interest in the cause; that he is the

party's muster, servant, counsellor, steward, or attor-

ney, or of the same society or corporation with him.”

3 Blackstone, supra, at 363; see 3 J.H. Thomas, A

Systematic Arrangement of Lord Coke’s First Institute

of the Laws of England 365 (1836) (“He that is of a

jury must be liber homo, that is, not only a freeman

and not bond, but also one that hath such freedom of

9

mind as he stands indifferent as he stands un-

sworn.”). Chief Justice Marshall subsequently echoed

these concerns about jury impartiality, explaining

that “the most distant relative of a party cannot serve

upon his jury” because “the law suspects the relative

of partiality; suspects his mind to be under a bias,

which will prevent his fairly hearing and fairly decid-

ing on the testimony which may be offered to him.”

Burr, 25 F Cas. at 50; id. (“The end to be obtained is

an impartial jury; to secure this end, a man is prohib-

ited from serving on it whose connexion with a party

is such as to induce a suspicion of partiality.”).

This longstanding constitutional commitment to

impartial juries, together with the Fourteenth

Amendment's guarantee of equal protection of the

laws, also prohibits jurors who have a bias toward or

against any of the parties because of the party’s race.

The original meaning of the Fourteenth Amend-

ment’s equal protection guarantee “establishes equal-

ity before the law, and it gives to the humblest, the

poorest, the most despised of the race the same rights

and the same protection before the law as it gives to

the most powerful, the most wealthy, or the most

haughty.” Cong. Globe, 39th Cong., Ist Sess. 2766

(1866) (statement of Sen. Jacob Howard). The consti-

tutional guarantee of equality “protects the black

man in his fundamental rights as a citizen with the

same shield which it throws over the white man.” Id.

The Framers of the Fourteenth Amendment were

particularly concerned about racial discrimination in

the administration of criminal justice. In the after-

math of the Civil War, Southern states turned a blind

eye to the daily “acts of cruelty, oppression and mur-

der,” see Report of the Joint Committee on Reconstruc-

tion, at the First Session Thirty-Ninth Congress xvii

(1866), that Southern whites perpetrated to terrify

10

and intimidate the newly freed slaves and their al-

lies. “Witness after witness spoke of beatings and

woundings, burnings and killings, as well as depriva-

tions of property and earnings and interference with

family relations—and the impossibility of redress or

protection. ” Jacobus tenBroek, Equal Under Law

203-04 (1965). These experiences in the South “cha!-

lenged” the “colonial belief that the jury was a bul-

wark of liberty.” Forman, supra, at 909-10.

A key aspect of the problem was juror bias. Wit-

nesses told the Joint Committee on Reconstruction

that “since the surrender and coming home of the re-

bels, there is less chance for getting a jury who will

act justly.” Report of the Joint Committee on Recon-

struction pt. 2, supra, at 33. Indeed, “{a]ll-white ju-

ries punished black defendants particularly harshly,

while simultaneously refusing to punish violence by

whites against blacks and Republicans.” Forman,

supra, at 909-10. According to the testimony of

southern judges, “[iJn nine cases out of ten the men

who commit the crimes constitute or sit on the grand

jury, either they themselves or their near relatives or

friends, sympathizers, aiders, or abettors; and if a bill

is found it is next to impossible to secure a conviction

upon a trial at the bar.” Cong. Globe, 42d Cong., lst

Sess. 158 (1871) (statement of Sen. Sherman quoting

Judge Russel, 4th Dist.) (internal quotation marks

omitted).

Over the course of Reconstruction, the Framers of

the Reconstruction Amendments repeatedly acted to

ensure the existence of impartial juries that would

fairly apply the law to all regardless of race. Recog-

nizing that juror bias violated both the Sixth

Amendment's guarantee of an “impartial jury” and

the Fourteenth Amendment’s promise that no person

would be denied “equal protection of the laws,” U.S.

11

Const. amend. XIV, § 1, Ohio Senator John Sherman

called for action to enforce these constitutional guar-

antees, stating that some sort of response was neces-

sary if the United States “intend[ed] to retain a re-

publican form of government.” Cong. Globe, 42d

Cong., Ist Sess. 157 (1871). Action first came in the

form of the Civil Rights (Ku Klux Klan) Act of 1871,

ch. 22, 17 Stat. 13 (codified as amended in scattered

sections of 10, 18, 28, and 42 U.S.C.). Although the

“principal targets” of the Act were “the Klan itself

and the violence it perpetuated,” Forman, supra, at

920, proponents of the legislation also sought to ad-

dress the Southern state governments’ failure to pun-

ish the Klan, Cong. Globe, 42d Cong., Ist Sess. App.

252 (1871) (statement of Sen. Morton) (“None of its

members have been punished "). As Senator

Sherman noted, “there is another remarkable feature

of this whole proceeding, and that is that from the

beginning to the end in all this extent of territory no

man has ever been convicted or punished for any of

these offenses, not one.” Cong. Globe, 42d Cong., Ist

Sess. 157-58 (1871).

Proponents of the legislation recognized that a

principal reason why Klan members went unpun-

ished “was the failure of Southern juries to punish

violence against blacks and Republicans.” Forman,

supra, at 921; see, e.g., Cong. Globe, 42d Cong. Ist

Sess. 158 (1871) (Judge Settle of the North Carolina

Supreme Court explaining that “[t]he defect lies not

so much with the courts as with the juries”). As one

scholar reports, “Ku Klux Klan members candidly

acknowledged their willingness to disobey the law as

jurors in defense of one another.” Forman, supra, at

921; id. (quoting Klansman who explained that “if we

could get on the jury we could save [the defendant]”).

Thus, Section 5 of the Act “denied jury eligibility to

12

persons who had conspired to deny the civil rights of

blacks, and provided for penalties for those who per-

jured themselves during jury selection.” Jd. at 923.

Thé Act produced marked successes, excluding

prejudiced whites from juries and allowing black

Americans to take their place; as a result, Klan

members were convicted in large numbers for the

first time. Jd. at 925. Although the federal govern-

ment ultimately “scale[d] back its Klan prosecutions,”

id. at 926, these early successes of the Act helped

demonstrate that the problem was, as Judge Settle

had noted, “not so much with the courts as with the

juries,” Cong. Globe, 42d Cong., 1st Sess. 158 (1871).

The Civil Rights Act of 1871 was not the only Re-

construction-era legislation introduced to address the

problem of Southern juries that were infected by ra-

cial bias. In 1870, Senator Charles Sumner of Mas-

sachusetts introduced legislation to “prohibit[] dis-

crimination in the selection of jurors and provid/e]

penalties for officials who disobeyed.” Forman, su-

pra, at 926; see id. at n.160 (“no person shall be dis-

qualified for service as juror in any court, national or

State, by reason of race, color, or previous condition of

servitude” (quoting S. 916, 41st Cong. § 4 (1870))).?

During debates over Sumner’s proposed legisla-

tion, proponents of the bill made clear that jury de-

liberations free of racial bias were central to the con-

2 Notably, some calle for black Americans to be able to serve

on juries came even earlier, and these calls, too, stressed the

need to eliminate racial prejudice from the justice system. See,

e.g., Forman, supra, ai 916 (discussing Representative William

Kelley of Pennsylvania reading into the record in 1865 an edito-

rial by the black New Orleans Tribune, which asked, “Why have

we no representatives on the jury? Are our lives, honor, and

liberties to be left in the hands of men who are laboring under

the most stubborn and narrow prejudice”?’).

13

stitutional guarantee of impartial juries.’ According

to many supporters of the bill, the right to serve on a

jury was not an “independent right, but one that

stemmed from the defendant's right to a fair trial.”

Forman, supra, at 927; see Cong. Globe, 42d Cong., 2d

Sess. 845 (1872) (statement of Sen. Sherman) (“it is

the right of all men to have a fair law and rule by

which men of their own race and occupation and color

may serve on a jury”). Indeed, proponents of the leg-

islation repeatedly made clear that a jury could not

be impartial if blacks could not serve. As Senator

Sherman noted, “[t]he Constitution of the United

States declares that every man shall have a trial by

an impartial jury—not of his peers, in the old lan-

guage of the English law, but an impartial jury. The

meaning is the same. Now, what kind of trial

would that be to which you would subject four mil-

lions of the people of the United States in the south-

ern States, where by the law of some of them every

man of that race is excluded from sitting as a jury-

man on a trial? Is that an impartial jury?” Id. at 844

(statement of Sen. Sherman).

Senator Morton also referenced the Framers’

commitment to an impartial judiciary and the rele-

vance of that concept to contemporary debates about

the racial composition of juries: “[O]ne of the most

important principles of the common law that has

’ Even some opponents of the legislation acknowledged the

importance of jury impartiality. Senator Stevenson, for exam-

ple, believed blacks would be treated fairly by all-white juries,

but expressed concern about whether the same could be said for

members of other minority groups. “What becomes of a China-

men who commits murder today in San Francisco or Sacramen-

to?” he asked. “What right of justice can he expect from twelve

white men prejudiced against him and opposed bitterly to the

immigration of his people?” Cong. Globe, 42 Cong., 2d Sess. 913

(1872) (statement of Sen. Stevenson).

14

come down to us from our fathers, established in Eng-

land long ago, was that every man had a right to be

tried by his peers. And we see how carefully this

principle of trial by jury is guarded. Now, I ask if

with the prejudices against the colored race enter-

tained by the white race, even in some of the North-

ern States and certainly in all of the Southern States,

the colored man enjoys the equal protection of the

laws, if the jury that is to try him for a crime or de-

termine his right to property must be made up exclu-

sively of the white race?” 3 Cong. Rec. 1793 (1875)

(statement of Sen. Morton).

Senator George Edmunds of Vermont made a

similar point, stressing the importance of allowing

black Americans to serve on juries to ensure the

equality they had just been guaranteed by the Four-

teenth Amendment:

What, sir, is more necessary to peace and

security in the administration of justice in

the southern States than that [colored

people] should have the constitutional

right to participate in the administration

of justice? Where would be the value of

declaring that a colored man should have

equal rights of trial by jury and equal

rights of judgment by his peers, if you are

to say that the jurors are to be composed

of the Ku Klux, and that the only status

the colored man shall have in court, shall

be that he shall stand either as a re-

spondent or it may be as a witness? You

are to put him into the hands of his ene-

mies for trial.

Cong. Globe, 42d Cong., 2d Sess. 900 (1872) (state-

ment of Sen. Edmunds); see id. at 847 (statement of

Sen. Morton) (“Take the case of the State of Kentucky

15

where colored men are not allowed to sit upon a jury.

A colored man is placed upon trial. He is to be tried

by a jury of white men, perhaps for a wrong inflicted

upon a white person. He is to be tried by a jury that

have prejudices of race against him, that are now es-

pecially, and have been for a few years past excited

against him because he has been attempted to be

clothed with new rights. I ask if this colored man, to

be tried by a jury of white men from which all colored

men are excluded, can be said in any sense to have

‘the equal protection of the law?”); id. at 898 (state-

ment of Sen. Morton) (“[I]f a quarter of a million of

colored men in Kentucky have no right to sit upon a

jury, it cannot be said that they have the equal pro-

tection of the laws It is class legislation of the

worst kind.”).

Other members of Congress also spoke about the

difficulties in securing justice for both black plaintiffs

and defendants, saying, “Every colored man suing for

his wages brings his case before a jury who are preju-

diced against him because of his color. Every colored

man tried as a criminal appears before a jury who are

inclined to believe him guilty because of his race 7

2 Cong. Rec. 427 (1874) (statement of Rep. Stowell); 3

Cong. Rec. 1863 (1875) (statement of Sen. Morton)

(“[T]o give the exclusive right to white men to sit up-

on juries and to adjudicate upon the rights of colored

men is denying to colored men the equal protection of

the laws, because it is placing the adjudication of

their rights exclusively in the hands of another race,

filled with a prejudice and passion in many States

that would prevent them from doing justice.”). One

Senator even invoked Justice Strong who in 1874

spoke from the bench about the inability of black

Americans to receive a fair trial: “It is also well

known that in many quarters prejudices existed

16

against the colored race, which naturally affected the

administration of justice in the State courts, and op-

erated harshly when one of that race was a party ac-

cused.” 2 Cong. Rec. 4148 (1874) (statement of Sen.

Howe) (quoting Blyew v. United States, 80 U.S. 581,

593 (1871)); see Cong. Globe, 42d Cong., 2d Sess. 489

(1872) (statement of Sen. Sawyer) (expressing the

hope that Senator Sumner’s bill would provide a

“remedy for” the fact that there were probably cases

“where judges and juries fail to prove the guardians

of the colored man’s rights and privileges which it

behooves them to be”).

During debates over Senator Sumner’s bill, black

Americans living in the South also advised members

of Congress that “it is almost if not quite impossible

for a black man to obtain justice” in Southern courts

because “the lives, liberties, and property of black

men have been decided by grand and petit juries

composed exclusively of white men who are their po-

litical opponents.” Message from the President of the

United States, Transmitting a Memorial of a Conven-

tion of Colored Citizens Assembled in the City of

Montgomery, Ala. on December 2, 1874, H. Exec. Doc

No. 46, at 4-5 (1874). They elaborated that

from the antipathies and prejudices of

race, which are generally inflamed by art-

ful and sometimes by undisguised ap-

peals by counsel to these passions, it re-

sults that our race is deprived of their

constitutional right under the constitu-

tion of the State to a trial by an ‘impartial

jury,’ and of our right under the 13th and

14th amendments to the Constitution of

the United States ‘to the equal protection

of the laws.’

17

Id. at 5; id. (“Our lives, liberties, and properties are

made to hang upon the capriciousness, perilous, and

prejudiced judgments of juries composed of a hostile

community of ex-slaveholders who disdain to recog-

nize the colored race as their peers in anything, who

look upon us as being by nature an inferior race, and

by right their chattel property”); id. at 8 (“When this

mode of trial becomes, as it has, in this State, the tri-

al of a black man or his rights before a jury composed

exclusively of a different and a hostile race, having no

sympathies with him, but race antipathies and preju-

dices against him, it becomes worse than a mockery,

and is the surest means of accomplishing his ruin and

the subversion of right and justice.”).

The day before the Senate finally passed Senator

Sumner’s bill, what became the Civil Rights Act of

1875, Senator Morton gave a rousing speech in which

he captured the spirit of the legislation. In response

to an opponent of the bill, Senator Morton asked

whether the colored men have the

equal protection of the laws when the

control of their right to life, liberty, and

property is placed exclusively in the

hands of another race of men, hostile to

them, in many _ respects. prejudiced

against them, men who have been edu-

cated and taught to believe that colored

men have no civil and political rights that

white men are bound to respect.

3 Cong. Rec. 1795 (1875) (statement of Sen. Morton).

In answer to his own question, Senator Morton re-

sponded that the “common sense of mankind [would]

revolt at that proposition” that black men actually

have the equal protection of the laws in such a sce-

nario. lId.; see also id. at 1864 (statement of Sen.

Morton) (“[T]o place the administration of the law ex-

18

clusively in the hands of white men is to deny to col-

ored men an equal protection of the laws’).

In sum, as this history indicates, the constitu-

tionak commitment to “impartial” juries, as reflected

in the text of the Sixth Amendment, as well as the

constitutional guarantee of equal protection con-

tained in the Fourteenth Amendment, have long been

understood to require juries that are not infected by

racial prejudice and bias. As the next Section dis-

cusses, this deep historical commitment has long

been reflected in this Court’s cases as well.

Il. THIS COURT'S CASES HAVE LONG RE-

FLECTED THE IMPORTANCE OF RACE-

BLIND DECISIONMAKING IN THE JURY

CONTEXT

This Court has long recognized that racial preju-

dice in the jury system violates both the Sixth and

Fourteenth Amendments because “[d]iscrimination

on the basis of race, odious in all aspects, is especially

pernicious in the administration of justice.” Mitchell,

443 U.S. at 555 (plurality opinion); id. at 556 (“[S]Juch

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.” (quoting Smith v. Texas, 311 U.S. 128,

130 (1940) (footnote omitted))).

Five years after the passage of the Civil Rights

Act of 1875, this Court confirmed the Framers’ un-

derstanding of the constitutional guarantee of equali-

ty, holding that a state statute excluding African

Americans from jury service “is practically a brand

upon them, affixed by the law, an assertion of their

inferiority, and a stimulant to that race prejudice

which is an impediment to securing to individuals of

the race that equal justice which the law aims to se-

19

cure to all others.” Strauder, 100 U.S. at 308.

Strauder recognized that “[t]he very idea of a jury is a

body composed of the peers or equals of the per-

son whose rights it is selected or summoned to de-

termine” and that “[i]t is well known that prejudices

often exist against particular classes in the communi-

ty, which sway the judgment of jurors, and which,

therefore, operate in some cases to deny to persons of

those classes the full enjoyment of that protection

which others enjoy.” Jd. at 308, 309. The “apprehen-

sion that through prejudice [racial minorities] might

be denied equal protection,” id. at 309, has guided

this Court’s jurisprudence since.

To guard against racial discrimination in the jus-

tice system, this Court has repeatedly recognized the

importance of eliminating purposeful racial discrimi-

nation at all stages of the jury seleciion process. For

example, the Court “has long recognized that ‘it is a

denial of the equal protection of the laws to try a de-

fendant of a particular race or color under an indict-

ment issued by a grand jury from which all per-

sons of his race or color have, solely because of that

race or color, been excluded by the State.” See Cas-

taneda v. Partida, 430 U.S. 482, 492 (1977) (quoting

Hernandez, 347 U.S. at 477); Cassell v. Texas, 339

U.S. 282, 282-83 (1950) (violation of the “federal con-

stitutional right to a fair and impartial grand jury”

when an African American was indicted by a grand

jury from which African Americans were “intentional-

ly excluded”). As a plurality of the Court recognized

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

members of a particular race from the grand jury “de-

stroys the appearance of justice and thereby casts

doubt on the integrity of the judicial process” and

“strikes at the fundamental value of our judicial sys-

tem and our society as a whole.” Mitchell, 443 U.S. at

20

555-56; see also Vasquez v. Hillery, 474 U.S. 254, 262

(1986) (reaffirming Rose and calling “intentional dis-

crimination in the selection of grand jurors” a “grave

constitutional trespass”).

Similarly, this Court has held that discrimination

in selecting the petit jury pool is constitutionally im-

permissible based on both the Fourteenth Amend-

ment and the Sixth Amendment right to a jury re-

flecting a fair cross section of the community. See,

e.g., Taylor, 419 U.S. 522. In Taylor, the Court re-

versed the petitioner’s conviction because the state

court that tried him had engaged in a pattern of ex-

cluding women from the jury pool even though wom-

en constituted fifty-three percent of the population.

As the Court explained, “[t]he purpose of a jury is to

guard against the exercise of arbitrary pow-

er. This prophylactic vehicle is not provided if

large, distinctive groups are excluded from the pool.”

Taylor, 419 U.S. at 530 (citation omitted); id. (“[T]he

broad representative character of the jury should be

maintained as assurance of a diffused impartiali-

ty .™ (quoting Thiel v. S. Pac. Co., 328 U.S. 217,

227 (1946) (Frankfurter, J., dissenting))). Although

the Court subsequently restricted the fair cross sec-

tion rigLt to the selection of the jury venire (and not

the petit jury itself), Holland v. Illinois, 493 U.S. 474

(1990), in doing so the Court reaffirmed Taylor's cen-

tral premise that the Sixth Amendment prohibits ju-

ry pools likely to have a bias against certain classes of

defendants. As the Court explained, “[t]he Sixth

Amendment requirement of a fair cross section on the

venire is a means of assuring an impartial [ju-

ry] Without that requirement, the State could

draw up jury lists in such manner as to produce a

pool of prospective jurors disproportionately ill dis-

21

posed towards one or all classes of defendants

Holland, 493 U.S. at 480.

The Court has also provided safeguards to try to

ensure that individuals who sit on juries carry no ra-

cial bias or animus that will conflict with their ability

to serve as impartial jurors. In Aldridge v. United

States, 283 U.S. 308 (1931), the defense asked the

trial judge to question prospective jurors about their

racial attitudes after learning that in an earlier trial

of the same case, a white juror had expressed that the

interracial nature of the crime “perhaps somewhat

influenced her.” Aldridge, 283 U.S. at 310. Despite

this revelation, the judge forbade the defense counsel

from asking any questions about race. This Court

held that this decision was erroneous, reasoning that

“if any [juror] was shown to entertain a prejudice

which would preclude his rendering a fair verdict, a

gross injustice would be perpetrated in allowing him

to sit.” Id. at 314. Notably, the Court rejected an ar-

gument that questioning jurors about their racial at-

titudes would undermine the legitimacy of the judi-

cial system, explaining that

[wlje think that it would be far more inju-

rious to permit it to be thought that per-

sons entertaining a disqualifying preju-

dice were allowed to serve as jurors and

that inquiries designed to elicit the fact of

disqualification were barred. No surer

way could be devised to bring the pro-

cesses of justice into disrepute.

Id. at 314-15; see Ham v. South Carolina, 409 U.S.

524, 527 (1973) (“the essential fairness required by

the Due Process Clause of the Fourteenth Amend-

ment requires that under the facts shown by this rec-

ord the petitioner be permitted to have the jurors in-

terrogated on the issue of racial bias”).

”

22

In the years since, even as the Court has made

clear that trial courts enjoy discretion when deter-

mining whether to permit questioning about potential

jurors, racial biases, they can abuse their discretion

by denying a defendant’s request to examine jurors if

there are “substantial indications of the likelihood of

racial or ethnic prejudice affecting the jurors in a par-

ticular case.” Rosales-Lopez v. United States, 451

U.S. 182, 190 (1981); see Turner v. Murray, 476 U.S.

28, 36, 35 (1986) (“Because of the range of discretion

entrusted to a jury in a capital sentencing hearing,

there is a unique opportunity for racial prejudice to

operate but remain undetected,” and “[b]ly refusing to

question prospective jurors on racial prejudice, the

trial judge failed to adequately protect petitioner's

constitutional right to an impartial jury”). As this

Court has explained, juror questioning can be re-

quired when there is a “constitutionally significant

likelihood that, absent questioning about racial prej-

udice, the jurors would not be as ‘indifferent as (they

stand) unsworne.” MRistaino v. Ross, 424 U.S. 589,

596 (1976) (quoting Coke on Littleton 155b (19th ed.

1832)).

Finally, the Court has also prohibited the exclu-

sion of prospective jurors based on race even when

the government otherwise has the discretion to re-

move jurors. See Batson v. Kentucky, 476 U.S. 79

(1986). In Batson, the Court explained that discrimi-

natory selection of jurors was unconstitutional be-

cause, among other things, it denies defendants the

equal protection of the laws. “Those on the venire

must be indifferently chosen,” the Court explained,

“to secure the defendant’s right under the Fourteenth

Amendment to protection of life and liberty against

race or color prejudice.” Batson, 476 U.S. at 86-87

(internal quotation marks and citations omitted).

23

The Court also underscored that “[sjelection proce-

dures that purposefully exclude black persons from

juries undermine public confidence in the fairness of

our system of justice.” Jd. at 87; see Foster v. Chat-

man, 136 S. Ct. 1737, 1745-1747 (2016) (“The ‘Consti-

tution forbids striking even a single prospective juror

for a discriminatory purpose.” (quoting Snyder v.

Lousiana, 552 U.S. 472, 478 (2008))).

In short, this Court has repeatedly made clear

that racial bias and prejudice are an affront to the

constitutional guarantees contained in both the Sixth

and Fourteenth Amendments, and that there is no

place for such bias in either jury deliberations or in

the administration of our justice system more gener-

ally.

Ill. APPLYING STATE NO-IMPEACHMENT

RULES IN THE CONTEXT OF ALLEGA-

TIONS OF RACIAL BIAS UNDERMINATES

OUR CONSTITUTIONAL COMMITMENT

TO RACE-BLIND DECISION-MAKING IN

THE JURY CONTEXT

As just discussed, there is a longstanding consti-

tutional and historical commitment to race-blind de-

cision-making in the jury context, and this Court's

decisions have repeatedly reflected that commitment.

Applying no-impeachment rules in cases, like this

one, in which there are allegations of racially preju-

diced comments during jury deliberations is at odds

with this constitutional commitment and should not

be permitted.

The evidence that racial prejudice and bias in-

fected jury deliberations in this case is striking. After

the jury returned its verdict convicting Pefia Rodri-

guez, two jurors reported to defense counsel that,

during deliberations, another juror had made a num-

24

ber of statements indicating that he was prejudiced

against Mexicans and individuals of Hispanic de-

scent. According to the jurors who spoke to defense

counsel, the other juror said that the defendant “did

it because he’s Mexican and Mexican men take what-

ever they want,” Pet. App. 4a, and that the defendant

“was guilty because [in that juror’s] experience as an

ex-law enforcement officer, Mexican men had a bra-

vado that caused them to believe they could do what-

ever they wanted with women,” id.; see id. (“[W]here

[that juror] used to patrol, nine times out of ten Mexi-

can men were guilty of being aggressive toward wom-

en and young girls.”). These jurors also reported that

the other juror stated that the defendant’s alibi wit-

ness was not “credible because, among other things,

he was an ‘an illegal.” Jd. at 4a-5a (internal quota-

tion marks omitted). Notably, the alibi witness had

testified during trial that he was a legal resident of

the United States. Pet’r’s Br. 8.

As this Court has made clear, “a defendant has

the right to an impartial jury that can view him

without [the] racial animus, which so long has dis-

torted our system of criminal justice.” Georgia v.

McCollum, 505 U.S. 42, 58 (1992). If these juror alle-

gations are true, Pefia Rodriguez's right to such an

impartial jury and to the equal protection of the laws

was plainly violated given the juror’s preconceptions

about Mexicans and Hispanics and his biases against

them.

Colorado's asserted justifications for its no-

impeachment rule, whatever their merits as a gen-

eral matter, cannot trump Pefia Rodriguez's constitu-

tional right to an impartial jury capable of deciding

his case based purely on the evidence presented at

trial. See Pet’r’s Br. 33-39; see also id. at 38 (“Given

the existing exceptions to [the no-impeachment rule],

25

a narrow exception for allegations of racial bias does

not unduly disturb the finality of verdicts.”); Amicus

Br. of NAACP Legal Defense & Educational Fund,

Inc. et al. 17-19. Moreover, as Pefia Rodriguez's brief

demonstrates, there is no need to abandon no-

impeachment rules altogether; rather, the courts

could easily administer an exception to no-

impeachment rules for racial bias claims. See Pet’r's

Br. 29-31, 40-45; see also id. at 30 (noting that “over

twenty jurisdictions allow juror testimony about ra-

cially biased remarks in the jury room”). Such an ex-

ception would help safeguard our nation’s longstand-

ing commitment to a race-blind justice system that

judges people based on the evidence presented at tri-

al, not the color of their skin. It would also ensure

that “prejudices against particular classes in the

community” do not “sway the judgment of jurors” and

deny to racial minorities “the full enjoyment of that

protection which others enjoy.” Strauder, 100 U.S. at

309. As this Court has explained, “[d]jiscrimination

on the basis of race, odious in all aspects, is especially

pernicious in the administration of justice.” Mitchell,

443 U.S. at 555. This Court should hold that courts

cannot apply no-impeachment rules in contexts in

which doing so would allow verdicts based on racial

discrimination to stand, and it should hold that the

Colorado Supreme Court was wrong to do so here.

26

CONCLUSION

For the foregoing reasons, the judgment of the

Colorado Supreme Court should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

June 30, 2016 * Counsel of Record