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

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JUN 30 205

No. 15-606 |_ormoe or Tes cure

IN THE

Supreme Court of the Anited States

MIGUEL ANGEL PENA RODRIGUEZ,

Petitioner,

v.

STATE OF COLORADO,

Respondent.

On Writ of Certiorari to the

Colorado Supreme Court

BRIEF FOR AMICI CURIAE

THE HISPANIC NATIONAL BAR

ASSOCIATION, LATINOJUSTICE PRLDEF,

AND THE ANTI-DEFAMATION LEAGUE IN

SUPPORT OF PETITIONER

Robert T. Maldonado Peter Karanjia*

President Jason Harrow

Hispanic National Bar Davis Wright Tremaine LIP

Association 1919 Pennayiveania Ave, NW.

1020 19th Street, N.W. Suite 800

Suite 505 Washington, D.C. 20006

Washington, D.C. 20036 (202) 973-4200

(212) 278-0509 peterkaranjia@dwt.com

Counsel for Amici Curiae

*Counsel of Record

Lagal PRErTERs Lic, Washingese DC © 202-747-2400 © legaiprinters.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................:cccceeeeeeeeeeeeeees ii

INTEREST OF AMICI CURIAE ................-:02:0000000000 1

SUMMARY OF ARGUMENT....................cccceseeeeeeeeeeees 2

SEE ceciesteneieniienmnnsninistenncubiniateenaianinteanadtnaianinaina 4

I. THIS COURT SHOULD APPLY STRICT

SCRUTINY TO INVALIDATE THE

APPLICATION OF RULE 606(B) IN THIS

UI sesecricurisasccinnesieniananinassunnnaiiigsviiadtnmamianinesee 4

A. Eliminating racial prejudice from the

criminal justice system is a

constitutional imperative of the

highest order that reflects the unique

role of race in the Nation’s history. .............. 4

B. State justifications for evidentiary

rules that categorically prohibit the

introduction of direct evidence of

racially discriminatory juror

statements must be subjected to strict

niishacevinctetienecsdutchninieiabinadetactniuitemincnine 6

C. Rule 606(b) cannot survive strict

scrutiny as applied here. ............................ 12

Il. THE ACUTE PROBLEM OF

UNDERREPRESENTATION OF THE

LATINO COMMUNITY ON _ JURIES

UNDERSCORES THE NEED FOR STRICT

BE stecksncdesescnnrsansevesdctaadenntnesnoveeneesiodsiess 14

EE teicscsidainetiasstiissatiiniieladiitiiensbeniiadibisetieisaiiicledii 19

il

TABLE OF AUTHORITIES

Page(s)

Cases

Batson v. Kentucky,

I IT os ce cesnatesmnsemnenenneniesin 5, 7

Bullcoming v. New Mexico,

a EI RE NER eet ae )

Castaneda v. Partida,

EL SRE SI AO eo ee 16

Chambers v. Mississippi,

a eedidanaeel 8

Crawford v. Washington,

gE SE NR ne em F 9,14

Dennis v. United States,

es lanenstiidananent 10

Duncan v. Louisiana,

I a ceiemeiaiaiiont 7

Edmonson v. Leesville Concrete Co.,

i clea 5,6

Foster v. Chatman,

Se i I I 0. sicaccunctsothemabstnbendtpoenonens 5, 8

Hernandez v. New York,

I ueeeiuseninadie 7

ill

Hernandez v. Texas,

347 U.S. 475 (1954).......-..-cecceeeeneceeeeeneeneeee ees 5, 7, 14

Irvin v. Dowd,

366 U.S. 717 (1961)........:ccceeeeeeeeeeeeeeeeseeeeenenenanees 2,6

Johnson v. California,

543 U.S. 499 (2O0B)...........cececeeeseneseeeeeeeeeeeeeeeees 9,12

McCleskey v. Kemp,

AB1 U.S. 279 (1987). .....ccccccseeseeeeneeseeneeeteneeseenees 5, 11

McDonough Power Equip., Inc. v.

Greenwood,

AG4 U.S. 548 (1984)..........ccecceeeeeeeeeeeeeeeneeteereeennennens 6

Morgan v. Illinois,

504 U.S. 719 (1992).......-.cccceceeeeeeneneeeseeeeeeeennes 7, 12

Plyler v. Doe,

ABT U.S. 202 (1982)..........cccccceceeeeeseeeeserereeeeeneeneneees 7

Police Dep't of Chicago v. Mosley,

AOB U.S. G2 (1972)..........ccccceeeeeeeeeeeeeeereneeenenneneanees 13

Rock v. Arkansas,

ABS U.S. 44 (1987).........cccccccececeeeeeeeeeeeeeeeeeeeterenenenes 8

Rose v. Mitchell,

443 U.S. 545 (1979)........ccccccceeeceeeeeeeeeeeeeeeeeeeenensnenes 5

Serena v. Mock,

547 F.3d 1061 (9th Cir. 2008)...............2---eeeeeeeeees 17

Snyder v. Louisiana,

552 U.S. 472 (2OOB)............:cececeeceeeeeeeeeseeeeeneenenes 3,7

iV

Strauder v. West Virginia,

ET NE AOI IDE Fa 5

Tanner v. United States,

I Un tN 13

United States v. Armstrong,

RES RS eR ae ae 11

Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp.,

RTI eRe See eee RSS 10

Warger v. Shauers,

IT a 12

Washington v. People,

186 P.3d 664 (Colo. 2008) ..................0..0............-. 16

Whitus v. Georgia,

EERE ee 5

Rules

EE ge ee eM ee aa e 3, 7, 10, 12, 13

te 11

Other Authorities

Ann Pfau, First Annual Report

Pursuant to Section 528 of the

Judiciary Law (Report of the Chief

Administrative Judge of the State of

a tamesbaoemensonaioned 15

Appellant’s Br. in United States v.

Burgess, No. 15-30261, 2016 WL

I I oi iinesonsccessncssoscsonsorsinies 17

Bob Cohen and Janet Rosales, Racial

and Ethnic Disparity in Manhattan

Jury Pools: Results of a Survey and

Suggestions for Reform (June 2007) ................... 15

Jessica West, 12 Racist Men: Post-

Verdict Evidence of Juror Bias,

Harvard J. on Racial & Ethnic

SUES TED GTI BB ED occ ecccvccsescccsccccccccccsscee 18

Matt Dempsey and Karen Chen,

“Hispanic Representation on Harris

County Grand Juries Far Below

Population,” Houston Chronicle

Se SNR icccdacccarancscnssendsmdnniesccmiscdincmaaiaiakiaancath 16

INTEREST OF AMICI CURIAE:

The membership of amicus curiae the Hispanic

National Bar Association (the “HNBA”) comprises

thousands of Latino lawyers, law professors, law

students, legal professionals, state and federal

judges, legislators, and bar affiliates across the

country. The HNBA supports Hispanic legal

professionals and is committed to advocacy on issues

of importance to the 53 million people of Hispanic

heritage living in the United States. The HNBA

regularly petitions Congress and the Executive on

behalf of all members of the communities it

represents.

Amicus curiae LATINOJUSTICE PRLDEF (“LJP”)

is a national not-for-profit civil rights legal defense

fund that has advocated for and defended the

constitutional rights and the equal protection of all

Latinos under the law. Since its founding in 1972 as

the Puerto Rican Legal Defense & Education Fund,

LJP’s continuing mission is to promote the civic

participation of the greater pan-Latino community in

the United States, to cultivate new Latino

community leaders, and to engage in and support

law reform cases around the country addressing

basic civil rights in the areas of criminal justice,

education, employment, fair housing, immigrants’

! All parties to this litigation have consented to this amici

curiae brief, and letters of consent have been filed with the

Clerk. No counsel for a party authored this brief in whole or in

part, and no person or entity other than amici and their

counsel made a monetary contribution to the preparation or

submission of this brief.

2

rights, language rights, redistricting and voting

rights. LJP seeks to ensure that Latinos are not

illegally or unfairly affected by discriminatory

policies and practices, particularly by government

actors.

Amicus curiae the Anti-Defamation League

(“ADL”) was founded in 1913 to combat anti-

Semitism and all forms of bigotry, to defend

democratic ideals, and to secure justice and fair

treatment to all. ADL is vitally interested in

protecting the civil rights of all persons and ensuring

that each individual receives equal treatment under

the law regardless of race, sex, sexual orientation,

gender identity, ethnicity, or religion. Consistent

with its mission, ADL is committed to working to

eliminate racial bias in the criminal justice system.

SUMMARY OF ARGUMENT

Direct evidence in this case suggests that

Petitioner Miguel Angel Pefia Rodriguez may have

been convicted by a jury not on the basis of the

evidence presented at trial, but rather on the basis of

at least one juror’s racial prejudice. If true, allowing

Pena Rodriguez’ conviction to stand would be

among the most grievous errors a State can inflict on

an individual, as few rights are more central to our

system of ordered liberty than everyone’s right to a

“fair trial in a fair tribunal.” Irvin v. Dowd, 366 U.S.

717, 722 (1961).

But a Colorado rule of evidence—shared by

many other states—bars Pena Rodriguez from even

attempting to make the case that his conviction was

3

structurally flawed due to racial bias. The Colorado

Supreme Court’s holding that this state rule of

evidence trumps constitutional rights to a fair trial,

free of racial bias, is constit’*tionally intolerable.

While this Court should hold that, under any

standard, the state rule of evidence must yield to

Petitioner's constitutional rights, the best analytical

framework for addressing the question presented is

the familiar strict-scrutiny standard that would

normally apply to other claims of purposeful

discrimination on the basis of race. That framework

is the focus of this brief.

Strict scrutiny of Rule 606(b) is warranted in

light of the uniquely pernicious role of racial

discrimination in the criminal justice system. That

requirement flows directly from the surpassing

importance of ensuring the system is free of racial

bias. Indeed, this Court has already recognized that

“all of the circumstances that bear upon the issue of

racial animosity must be consulted.” Snyder uv.

Louisiana, 552 U.S. 472, 478 (2008) (emphasis

added). And this Court’s cases addressing how to

resolve collisions between state evidentiary rules

and constitutional rights of criminal defendants—

such as the right to present a fair defense or the

right to confront to witnesses offering testimonial

statements—have also subjected the state rules to

searching review, or even presumed as self-evident

that such conflicting evidentiary rules must be

invalid. The most searching level of constitutional

scrutiny therefore should apply to the sort of state

evidentiary rule at issue in this case. Under that

demanding standard, Colorado Rule 606(b) must

4

yield to Pefia Rodriguez's fundamental constitutional

rights.

e

Finally, this case is an ideal vehicle to announce

such a rule. After all, Petitioner’s plausible direct

evidence of juror racial prejudice against Mexicans

in particular and Latinos more broadly exemplifies

the harmful consequences of the systemic

underrepresentation of Hispanic people on American

juries. Nationwide, the lack of Latino representation

in jury pools and on juries exacerbates the risk that

juries might use race—rather than the evidence

presented—as the determining factor in depriving a

Hispanic defendant of his liberty.

ARGUMENT

I. THIS COURT SHOULD APPLY STRICT

SCRUTINY TO INVALIDATE THE

APPLICATION OF RULE 606(b) IN THIS

CASE.

A. Eliminating racial prejudice from the

criminal justice system is a

constitutional imperative of the

highest order that reflects the unique

role of race in the Nation’s history.

Our Constitutional system provides criminal

defendants with a number of important rights. But

the right to a criminal proceeding free of racial

discrimination is unique among them. That is

because racial bias against a defendant not only

affects the individual defendant, but more broadly

“mars the integrity of the judicial system and

prevents the idea of democratic government from

5

becoming a reality.” Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 628 (1991). For this reason, the

Court has engaged in “unceasing efforts to eradicate

racial prejudice from our criminal justice system.”

McCleskey v. Kemp, 481 U.S. 279, 309 (1987).

The Court’s efforts to enforce the mandate of

equal administration of justice have spanned the

entire spectrum of criminal proceedings—and they

have focused in particular on the critical role of the

jury in the criminal justice system. Strauder v. West

Virginia, 100 U.S. 303 (1880), for instance, held that

the Equal Protection Clause is violated when

African-Americans are purposefully excluded from

juries on account of their race. /d. at 310. Over

seventy years later, the Court expanded that

protection to other groups—overturning' the

conviction of a Mexican-American man who was

tried in a jurisdiction that had, for decades, excluded

all Latinos from jury service. Hernandez v. Texas,

347 U.S. 475, 482 (1954); see also Whitus v. Georgia,

385 U.S. 545, 551 (1967) (reversing conviction

because of purposeful discrimination in jury

selection). The selection of a grand jury, too, must be

free from racial bias. Rose v. Mitchell, 443 U.S. 5465,

556 (1979). And the Court’s landmark decision in

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

logic to prohibit prosecutors from using peremptory

strikes to eliminate jurors on the basis of their race.

Thus, as the Court recently noted, the “Constitution

forbids striking even a single prospective juror for a

discriminatory purpose.” Foster v. Chatman, 136 S.

Ct. 1737, 1747 (2016) (quotation marks omitted).

6

This unyielding effort to eradicate racial bias as a

factor in the composition of, and decisionmaking by,

a juryeis an outgrowth of the central role that juries

play in a criminal trial. The jury is not a mere

collection of private citizens tasked with assisting

judges in determining guilt or innocence. To the

contrary: “The jury exercises the power of the court

and of the government that confers the court's

jurisdiction.” Edmonson, 500 U.S. at 624. With that

great power comes the requirement that a jury must

afford a defendant a “fair trial in a fair tribunal,”

Irvin, 366 U.S. at 722, and so must determine guilt

or innocence without regard to the race of the

defendant—or the prosecutor, attorneys, judges, or

victims, for that matter. Instead, a defendant is

entitled to “a jury capable and willing to decide the

case solely on the evidence before it.” McDonough

Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554

(1984) (quotation marks omitted).

B. State justifications for evidentiary

rules that categorically prohibit the

introduction of direct evidence of

racially discriminatory juror

statements must be subjected to strict

scrutiny.

While the process of selecting and instructing the

petit jury is subject to many safeguards to protect

against the pernicious’ effects of racial

discrimination, jury deliberations themselves are not

monitored by the court or the parties. That is

because the jury is an independent decisionmaker.

But when direct, reliable evidence suggests that

even a single juror made a decision to convict based

7

on a discriminatory purpose, any evidentiary rule

that would prohibit introduction of that evidence,

like Colorado’s Rule 606(b) or its federal equivalent,

must be subjected to strict scrutiny.

This searching standard of review is required

because this Court has “treated as presumptively

invidious those classifications that disadvantage a

‘suspect class,’ or that impinge upon the exercise of a

‘fundamental right.” Plyler v. Doe, 457 U.S. 202,

216-17 (1982) (footnotes omitted). It is well

established that the right to an impartial jury, free

of racial bias, is a fundamental right of the highest

importance. Duncan v. Louisiana, 391 U.S. 145, 149

(1968); see also Hernandez, 347 U.S. at 482

(reversing conviction of defendant where Latinos

were systematically excluded from jury pool). To

impose anything less than the most searching

scrutiny on a rule of evidence that categorically bars

a defendant from showing that he was, in fact,

convicted by a jury that used his race as a

determining factor would present an unacceptably

high a risk that his right to an impartial jury would

be rendered “nugatory and meaningless.” Morgan v.

Illinois, 504 U.S. 719, 733-34 (1992).

In particular, the reasoning of the Batson line of

cases demands the application of strict scrutiny

here. After all, “in considering 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.” Snyder, 552

U.S. at 478 (emphasis added). Applying that

principle, this Court recently considered evidence of

the use of race in jury selection found in the

8

prosecution’s file. “Despite questions about the

background of [those] particular notes,” the Court

emphatically rejected “the State’s invitation to blind

[itself] to their existence.” Foster, 136 S. Ct. at 1748.

So too here: evidentiary rules that would force a

court to “blind [itself]” to the existence of evidence of

juror bias must be strictly scrutinized—at a

minimum, where the claim is based on

discrimination on the basis of race.

Two other complementary lines of cases support

the application of strict scrutiny here: cases

balancing courtroom rules against the rights of

defendants, and cases governing racial

classifications by the government. In the first line of

cases, rules of evidence that have impinged on

important rights of defendants have frequently been

subjected to a careful and searching examination

(albeit without tke Court’s expressly framing the

inquiry as an application of “strict scrutiny”). In

Chambers v. Mississippi, 410 U.S. 284 (1973), for

instance, where state rules of evidence stood as an

obstacle to the introduction of evidence that someone

other than the cefendant had committed the crime,

the Court “closely examined” the _ relevant

evidentiary rules because they conflicted with the

defendant's right to put on a fair defense and have a

fair trial. Jd. at 295. Under that searching

standard, the Court found that the evidentiary rules

must give way, because their “mechanistic{]”

application had “denied [the defendant] a trial in

accord with traditional and fundamental standards

of due process.” Jd. at 302; see also Rock v.

Arkansas, 483 U.S. 44, 45 (1987) (applying a state

evidentiary rule prohibiting the admission of

9

hypnotically refreshed testimony would violate

petitioner’s constitutional right to testify).

The Court likewise has held that state procedural

rules that would permit the introduction of certain

types of “testimonial” evidence are presumptively

unconstitutional, because the introduction of that

evidence would infringe the defendant’s Sixth

Amendment rights. Thus, in Crawford ov.

Washington, 541 U.S. 36, 68 (2004), this Court

overruled its prior balancing test and held that a

defendant's Sixth Amendment right to confront his

accuser trumped a state rule of evidence that

permitted the introduction of an _ out-of-court

statement by the defendant's wife. See also

Bullcoming v. New Mexico, 564 U.S. 647, 665 (2011)

(Sixth Amendment required exclusion of forensic

evidence permitted by state rule of evidence).

Indeed, in Crawford and later cases applying that

principle, it was unnecessary for the Court to

articulate a level of scrutiny because state rules of

evidence are presumptively unconstitutional to the

extent they are applied to preclude the exercise of a

defendant's right to confront witnesses offering

“testimonial” evidence. Apparently, no justification

for the state’s evidentiary rules, no matter how

persuasive, can overcome a defendant's right to

confront witnesses making these statements.

Separately, cases in which a defendant alleges

invidious discrimination on the basis of race are

subject to strict scrutiny because that rule applies to

“all racial classifications imposed by government.”

Johnson v. California, 543 U.S. 499, 505 (2005)

(quotation marks and brackets omitted). In these

10

cases, strict scrutiny is a tool courts use to “smoke

out illegitimate uses of race,” id. at 506—illegitimate

uses kike a juror’s conviction of a criminal defendant

simply because he is Mexican.

The convergence of these two doctrines—the first

related to evidentiary rules that directly conflict

with certain constitutional rights, the second related

to the presumptively unconstitutional nature of

express racial classifications—supports the

application of strict scrutiny to rules of evidence, like

Colorado Rule 606(b), that prohibit the introduction

of direct evidence that a defendant’s fundamental

right to be free from a racially-discriminatory jury

has been infringed. After all, “[djetermining

whether invidious discriminatory purpose was a

motivating factor [in a governmental decision]

demands a sensitive inquiry into such circumstantial

and direct evidence of intent as may be available.”

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

429 U.S. 252, 266 (1977). If state evidentiary rules

are allowed to stand as an obstacle to such “sensitive

inquir[ies],” id., “the opportunity to prove actual

bias,” which is “a guarantee of a defendant’s right to

an impartial jury,” could become little more than an

empty formality. See Dennis v. United States, 339

U.S. 162, 171-72 (1950).

Under amici’s proposed framework, | strict

scrutiny would be triggered only when a defendant

has obtained direct and individualized evidence

tending to show that a juror voted to convict on the

basis of the defendant’s race. That evidentiary

requirement distinguishes this case from others in

which the Court has shown reluctance to allow

11

claims of bias based on statistical or indirect

evidence to overcome neutral procedural rules. For

instance, in United States v. Armstrong, 517 U.S.

456 (1996), the Court concluded that the defendants’

bare allegation of selective and racially motivated

prosecutions within the jurisdiction did not entitle

them to prosecutorial materials whose disclosure

was not otherwise authorized by Federal Rule of

Criminal Procedure 16. Id. at 463. The sole basis

for the defendants’ allegation of bias in Armstrong

was a study purporting to show general disparities

in drug prosecutions according to race. The Court

applied similar logic in McCleskey when it rejected a

discrimination claim grounded on ‘a_ study

highlighting differential rates at which the death

penalty is imposed, again depending on the

defendant's race. 481 U.S. at 292. As in Armstrong,

the fatal flaw in McCleskey was the defendant's

failure to establish individualized evidence of racial

bias: “[T]o prevail under the Equal Protection

Clause,” the Court explained, the defendant “must

prove that the decisionmakers in his case acted with

discriminatory purpose.” 481 U.S. 279, 292 (1987)

(emphasis in original).

By contrast, the claim here is fundamentally

different from the kind of claim that McCleskey or

Armstrong rejected. Rather, it is the very kind of

claim that each of those cases implied would entitle

defendants to make out a plausible case: one

supported by direct, individualized evidence of

invidious racial discrimination in jury

decisionmaking. Any state or federal rule of

evidence that prevents a defendant from pursuing

such a claim therefore must be subjected to the most

12

careful scrutiny. If the rules preventing this inquiry

were given anything less than this scrutiny, jurors

whose prejudices slip through the cracks at jury

selection could be permitted to render “nugatory and

meaningless,” Morgan, 504 U.S. at 733-34, the

bedrock right to an impartial trial.

C. Rule 606(b) cannot survive strict

scrutiny as applied here.

Under the familiar “strict scrutiny” standard, the

government has the burden to prove that the

challenged regulation is a “narrowly tailored

measure[] that further[s] compelling governmental

interests.” Johnson, 543 U.S. at 505 (quotation

marks omitted). Applying that standard here, Rule

606(b) must yield to Petitioner's constitutional

rights, thereby allowing Petitioner to introduce

direct evidence of purposeful racial discrimination.

First, Rule 606(b) and its federal and state

counterparts are not narrowly tailored. Like the

federal equivalent, Colorado Rule 606(b) is an

avowedly sweeping provision that prevents

introduction of virtually all evidence of jury

deliberations, as it contains only three “narrow

exceptions” to its blanket coverage—none of which

covers juror racial bias. Pet. App. 7a. As this Court

has already recognized, Rule 606(b)’s coverage is so

broad that it would exclude evidence even in “cases

of juror bias so extremé that, almost by definition,

the jury trial right has been abridged.” Warger v.

Shauers, 135 S. Ct. 521, 529 n.3 (2014). A rule of

evidence that sweeps this broadly is not narrowly

tailored.

13

Second, the interests the Rule furthers are not

compelling—especially when weighed against the

critical constitutional right to be free from conviction

based on purposeful juror discrimination. This

Court has recognized two purposes behind the

federal analogue to Colorado’s evidentiary rule

(Federal Rule 606(b)): the interest in ensuring

finality in litigation, and the notion that “fairness

requires that absolute privacy be preserved for

jurors to engage in the full and free debate necessary

to the attainment of just verdicts.” Tanner v. United

States, 483 U.S. 107, 124 (1987) (quoting S. Rep. No.

93-1277, 13-14 (1974)). While those interests are

valid as a general matter, they are obviously inapt

where a verdict has been tainted by invidious racial

prejudice. The government has no interest in the

finality of a verdict reached in violation of a

defendant’s right to a fair trial, nor is there any

legitimate interest in allowing jurors to have a “free

debate” when that debate violates a defendant's

constitutional right to a fair trial. See Police Dep’t of

Chicago v. Mosley, 408 U.S. 92, 95 (1972) (“[I]n all

equal protection cases...the crucial question is

whether there is an appropriate governmental

interest suitahiy furthered by the differential

treatment.”) (emphasis added).

Thus, trying to find any valid governmental

interest here is as fruitless as trying to find an

interest in applying a neutral procedural rule to

require the admission of testimonial evidence in

violation of a defendant’s rights under the Sixth

Amendment’s Confrontation Clause. This Court has

determined that the Sixth Amendment’s protections

are not to be left to the “vagaries of the rules of

14

evidence,” no matter what the purpose of those rules

might be. Crawford, 541 at 61. The Constitution

trumps whatever vague justifications the state might

offer. Similarly here, where a defendant has direct

and individualized evidence that he or she was

convicted on the basis of a juror’s purposeful racial

discrimination, the government has no valid interest

in finality or secrecy that can overcome the strong

interest in allowing the evidence to be admitted.

Il. THE ACUTE PROBLEM OF

UNDERREPRESENTATION OF THE

LATINO COMMUNITY ON _ JURIES

UNDERSCORES THE NEED FOR STRICT

SCRUTINY.

Despite this Court’s continuing efforts to prevent

racial bias from infecting the criminal justice

system, the unfortunate fact remains that many

minority groups continue to be underrepresented on

jury venires and, ultimately, on petit juries.

Research shows this problem is particularly acute

with respect to Latinos and other native Spanish

speakers. Indeed, it was not so long ago that

counties systematically excluded people with

“Mexican or Latin-American surnames” from jury

pools—a practice this Court definitively prohibited

in Hernandez v. Texas, which was the first case to

apply equal protection principles to people of

Hispanic heritage. 347 U.S. at 480. Although

jurisdictions may no longer openly discriminate on

that basis, the reality of continued

underrepresentation further justifies the application

of the strictest of scrutiny to the state evidentiary

rule in this case.

15

Surveys of the jury pools in New York, for

instance, present a troubling picture. In Manhattan,

a survey of over 14,000 prospective jurors found that,

while people of color as a whole tended to be

underrepresented, Hispanics were underrepresented

by a stunning 77%. In other words, Hispanics

comprised only 6.3% of the jurors assembling for new

cases even though Hispanics were 27.2% of the

population. Bob Cohen and Janet Rosales, Racial

and Ethnic Disparity in Manhattan Jury Pools:

Results of a Survey and Suggestions for Reform

(June 2007).2 Likewise, a survey of jurors in New

York state found that Hispanics were

underrepresented on juries in 58 of New York’s 62

counties—and were at par with census demographics

in the remaining four—indicating that the problem

of underrepresentation persists in urban, rural, and

suburban areas. See Ann Pfau, First Annual Report

Pursuant to Section 528 of the Judiciary Law (Report

of the Chief Administrative Judge of the State of

New York, 2011) at Table C.s

This concern is by no means confined to the State

or City of New York. In Harris County, Texas—

Houston’s home county—a newspaper investigation

revealed that “there are three times more adult

Hispanics living in Harris County than the [relative]

number who serve on grand juries.” Matt Dempsey

and Karen Chen, “Hispanic Representation on

2 See http://www.law.cuny.edu/academics/social-

justice/clore/reports/Citizen-Action-~J ury-Pool-Study.pdf.

3 See http://www.courts.state.ny.us/publications/

pdfs/528_ReportNov2011.pdf

16

Harris County Grand Juries Far Below Population,”

Houston Chronicle (Dec. 19, 2014).4 As the

investigation noted, this underrepresentation is so

drastic that it may well be unconstitutional on its

own under Castaneda v. Partida, 430 U.S. 482, 501

(1977), which had reversed the conviction of a Texas

man that resulted from an indictment by a grand

jury composed of a similarly disproportionate

number of Mexican-Americans to the results shown

today.

Litigation in Colorado and elsewhere continues to

reveal the depth of the problem. In 2008, the

Colorado Supreme Court found that a “defect” in the

“jury-selection process” in Arapahoe County—the

same county in which Petitioner was tried in this

case—caused “statistically significant

underrepresentation” of Hispanics, as well as

African-Americans, on the county's jury panels.

Washington v. People, 186 P.3d 594, 601 (Colo. 2008).

The court thus directed that one particular jury-

selection practice that likely led to the disparity “be

stopped immediately.” Id. at 606.

Structural defects like these in the jury-selection

process highlight why state evidentiary rules should

not be allowed to require courts to blind themselves

to probative evidence of actual racial bias that taints

a conviction. This is confirmed by expert evidence

submitted in a recent criminal case in Washington.

That evidence revealed that Latinos made up 17.3%

4 See http://www.houstonchronicle.com/news/houston-

texas/houston/article/Hispanic-representation-on-Harris-

County-grand-5969524 php.

17

of the relevant qualified jury population, but only

10.5% of the jury pool. Br. for Appellant at *26 in

United States v. Burgess, 9th Cir. No. 15-30261

(decision pending), available at 2016 WL 1003314;

see also Serena v. Mock, 547 F.3d 1051, 1054 (9th

Cir. 2008) (noting that the “statistical evidence that

Hispanics have been underrepresented [on grand

juries in a California county] by an absolute

disparity of 13.5% over the past three years is

troubling,” but dismissing appeal on procedural

grounds). Regardless of whether these disparities

themselves trigger a constitutional violation, it

remains the case that the number of available

Hispanic jurors is not completely representative of

their presence in the overall population.

The problem of demographic underrepresentation

in jury pools is compounded by a language divide.

Hispanic people who are called to jury duty often

face a linguistic gauntlet on two fronts when it

comes to actually serving on the petit jury: some may

be excluded from service because they do not speak

English, while others may be excluded precisely

because they are bilingual, at least in cases where

there could be testimony in Spanish translated into

English. See Hernandez v. New York, 500 U.S. 352

(1991) (holding that using peremptory strikes to

eliminate jurors who spoke Spanish did not violate

the Equal Protection Clause). This problem means

that even when Hispanics are summoned for jury

service, they are unlikely to be chosen for service

unless they speak English and only English.

Perversely, this problem is most likely to occur

where the defendant is also Hispanic.

18

Whatever the cause of the deep

underrepresentation of Hispanic jurors, it has a

clear, effect: it makes it unlikely that the twelve

people assigned to judge a defendant's guilt or

innocence will contain any Hispanic people. That is

particularly troubling given the empirical evidence

that the absence of a member of a particular racial

group on a jury makes it more likely that a juror will

feel free to express racial bias without fear that it

will elicit disapproval or protest from other jurors.

“{Sjocial scientists have long understood that the

presence of minority group jurors may inhibit

majority group members from expressing prejudice,

especially if the defendant is from the same group as

the minority group jurors.” Jessica West, 12 Racist

Men: Post-Verdict Evidence of Juror Bias, Harvard J.

on Racial & Ethnic Justice 195 (Spring 2011)

(discussing, among other studies, Samuel R.

Sommers, On Racial Diversity and Group Decision

Making: Identifying Multiple Effects of Racial

Composition on Jury Deliberations, 90 J. Personality

& Soc. Psych. 597, 606 (2006)).

Having more Hispanic jurors thus might temper

the instincts of those jurors who would be inclined to

convict on the basis of race and not the evidence.

But since, for now, the problem _ of

underrepresentation is particularly acute, the Court

must allow defendants to attempt to remedy any

violations of their fair-trial and equal-protection

rights that plausibly have occurred in the jury room.

Invalidating the application of rules of evidence

under a strict-scrutiny framework in circumstances

like these is the best way to do that.

19

CONCLUSION

For the foregoing reasons, this Court should

reverse the decision of the Colorado Supreme Court.

Respectfully submitted,

Robert T. Maldonado Peter Karanjia*

President Jason Harrow

Hispanic National Bar Davis Wright Tremaine LLP

Association 1919 Pennsylvania Ave., NW

1020 19th Street, N.W Suite 800

Suite 505 Washington, DC 20006

Washington, D.C. Tel: (202) 973-4200

20036 peterkaranjia@dwt.com

Tel: (212) 278-0509 Counsel for Amici Curiae

JUNE 2016