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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0630%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0630%3A20. Public record. Not legal advice.