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

Supteiiwes

eine

JUN 30 2016

No. 15-606 OFTICE OF THE CLERK

if

US

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 AMICI CURIAE

NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC., THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS, AND THE

AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONER

SHERRILYN IFILL JOHN PAUL SCHNAPPER-

Director-Counsel CASTERAS *

JANAI NELSON NAACP LEGAL DEFENSE &

CHRISTINA SWARNS EDUCATIONAL FUND, INC.

JIN HEE LEE 1444 I Street NW

LILIANA ZARAGOZA Washington, DC 20005

NAACP LEGAL DEFENSE & 202-682-1300

EDUCATIONAL FUND, INC. jschnapper@naacpldf.org

40 Rector Street, 5th Floor

New York, NY 10006

June 30, 2016 * Counsel of Record

[Additional Counsel On Inside Cover]

R. REEVES ANDERSON

HOLLY E. STERRETT

ARNOLD & PORTER LLP

370 Seventeenth Street

Suite 4400

Denver, CO 80202

Counsel for the National Association of Criminal

Defense Lawyers

BARBARA BERGMAN

Co-Chair, Amicus Committee

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

1117 Stanford, N.E.

Albuquerque, NM 87106

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

125 Broad Street

New York, NY 10004

TABLE OF CONTENTS

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INTEREST OF AMICI CURIAE................0cccceeesseeeee l

INTRODUCTION AND

SUMMARY OF ARGUMENT . ....................cccceeeeees 3

ITT oohiccennsithatgindsindigiesinaiacioineeitiodiniieinenancasdieimaienions 6

I. THE RIGHT TO AN IMPARTIAL JURY

INCLUDES THE RIGHT TO A JURY

DETERMINATION UNCORRUPTED' BY

IIIS sictnincnvictndessniethcncasensosesisite 7

A. The Colorado Supreme Court

Misapprehended the Constitutional

Import of Racial Prejudice in the Jury

System as a Uniquely Harmful and

TER SR A SAD AD CL Ie 9

B. Policy Concerns Underlying’ No-

Impeachment Rules Cannot Override

Constitutional Rights. .............................06. 14

II.EXCLUDING EXPLICIT EVIDENCE OF

RACIAL DISCRIMINATION IN JURIES

WOULD SERIOUSLY UNDERMINE

PUBLIC CONFIDENCE IN THE CRIMINAL

| SERENE EN Pn ese Se oO 20

A. Racial Prejudice in the Jury System

Damages Individual Proceedings,

Community Perceptions, and

BOOGRECREES FPROIIIIG ss ovccecccccesencscccccccsccsscee 21

B. A Court’s Refusal to Consider Whether a

Verdict is Tainted by Racial Prejudice

Erodes Public Confidence. .......................... 23

IIE ict neccannatiasapcnintecituesavenisiplbidesmaciecetts 26

ll

TABLE OF AUTHORITIES

Cases

Aldridge v. United States,

NIL Te

Alexander v. Louisiana,

SSR I ae dat aa a

Ballard v. United States,

US 8 21,

Batson v. Kentucky,

OP OF, POD aivcvevscciversccesncceusdec sects 1, 8, 10,

Berghuis v. Smith,

ICRU I tte

Buck v. Stephens,

630 F App’x 251 (5th Cir. 2015), cert.

granted, No. 15-8049, 2016 WL 531661

Se

Carter v. Jury Commission,

ee I eso San sanacassniiesinnesscnanenoueensnenecs

Chambers v. Mississippi,

I cnc as daca ns epusines occ

Commonwealth v. Laguer,

571 N.E.2d 371 (Mass. 1991) .............cccccccccceceseees

Crawford v. Washington,

SC,

ill

Duncan v. State of Louisiana,

a a ca iicuwevnioneaiiied 7-8

Duren v. Missouri,

ce celiasaeieeipaincebenss 18

Dyer v. Calderon,

151 F.3d 970 (9th Cir.), cert. denied,

ale ESE ise 5 ee ee 10

Edmonson v. Leesville Concrete Co.,

as ir ca anedadpensceens passim

Foster v. Chatman,

a n= acuisindnennnits 11, 18

Georgia v. McCollum,

I a cccinionmenennhes passim

Glasser v. United States,

a cacussueuecilumneiunbibause 8

Gray v. Mississippi,

I saci ocean degeieibeniaahannd os

Ham v. South Carolina,

I i cca eallsaetnaialiie 1

Hobby v. United States,

I co ecccecnpmaninlonennina 22

Irvin v. Dowd,

I c= cen rniseaaniningeibiansil 8

J.E.B. v. Alabama ex rel. T.B.,

ee ee ee oc cabknndeucnadenied passim

1V

Johnson v. California,

a RE ANNES SRE SR a8 Ne ea 1

Kittle v. United States,

Fe ff ft | a} REESE neneE appenEe re 25

Little v. United States,

Fe ee Ge Ws BOD ciccdevicdctnccccvescscicsdecdss 14

McDonald v. Pless,

I a aicleia 15

Miller-El v. Cockrell,

I call Ma alae 1

Miller-El v. Dretke,

I a aemadeehin 10

Patterson v. Alabama,

RETR ae cs ee 3

Perkins v. LeCureux,

58 F.3d 214 (6th Cir. 1995),

cert. denied, 516 U.S. 992 (1995) ..................0..00.. 16

Peters v. Kiff,

I a 21

Powell v. Alabama,

GE ED aR es aka ae eae EN, Bn 3

Powers v. Ohio,

oe codsbaamidenes passim

Ristaino v. Ross,

I 12

Rose v. Mitchell,

Oe ee ee Be CFT enn ccvnsesdcavnccccsccccsences 9, 13, 21, 22

Sheppard v. Maxwell,

en i ches nodupasicnasawesdendudenceslia 23

Shillcutt v. Gagnon,

Be Fe BE Cree Cae. BGBBZ) o0..0200cccccccscccccesccescce 25

Smith v. Brewer,

444 F Supp. 482 (S.D. lowa 1978), affd,

577 F.2d 466 (8th Cir.), cert. denied,

a isesgusedubanannie 25

Smith v. Phillips,

a usneRirenababeeuneunns 16

Smith v. Texas,

ee» uncon ebasnabaunaboaanes 22

Snyder v. Louisiana,

i a eeuvenvenccdieiesuninl 10-11

Strauder v. West Virginia,

Se I ac ccnisodndvicacbandscusniemanennenadue 10

Swain v. Alabama,

I cuniculi nensbucadans 1

Turner v. Fouche,

Re SII cs snaccnvineaesienoduucensvenenscssaesesneiaes l

United States v. Benally,

546 F.3d 1230 (10th Cir. 2008) ......................00000. 25

United States v. Heller,

786 F.2d 1624 (11th Cir. 1966) ............................ 25

vl

United States v. Hendrix,

549 F.2d 1225 (9th Cir.),

cert. denied, 434 U.S. 818 (1977) ...............0cccceeee 10

United States v. Henley,

Fe BEG fe | | ese 25

United States v. Reid,

63 U.S. (12 Tow.) BSL (IGG) .....0.cccescocssccscscese 15-16

United States v. Shalhout,

507 F App’x 201 (3d Cir. 2012) ...............0...ccceeees 25

United States v. Villar,

fe Fy” Ge ee 25

Warger v. Shauers,

aD a Sk Se CD ivcsicnnaventncenscncscabinesbatteencataae ia

Williams v. Pennsylvania,

579 U.S. __, No. 15-5040, 2016 WL

SISSSRS (UD. SUMO B; BOTS vvccecccocosccccvsdecsseccnccess 20

nstitution visi

CE, Ce, FE, Wikis ccncsisicisccaccoctenecnniedectceee 7

th Gi | | Sen one. eR LS 7

GP COB, FO VG rss eccevceccdacindsedicindesituaaeuceaeeeaan 14

Vill

her A rities

Alexis de Tocqueville, Democracy in America

(Henry Reeve trans., George Adlar 1840) ....... 9, 20

Barbara E. Bergman et al., Whartons

Criminal Evidence (15th ed. 1999)..................

Benjamin T. Huebner, Beyond Tanner: An

Alternative Framework for Postverdict

Juror Testimony, 81 N.Y.U. L. Rev.

nT Gichelindidetdbnnsivdcisontamsenavennectesenccsnncevecses

Brief of the NAACP Legal Defense and

Educational Fund, Inc. as Amicus Curiae

in Support of Petitioner, Sterling v.

Dretke, 117 Fed. App’x 328 (5th Cir.)

(unpublished), cert. denied, 544 U.S.

1053 (2005), 2005 WI, 952252

LE

Charles Abrams, Forbidden Neighbors: A

Study of Prejudice in Housing (1955) in

The Suburb Reader (Becky M. Nicolaides

& Andrew Wiese eds., 2006) ....................0......

Charles A. Wright & Victor J. Gold, Fed.

Prac. & Proc.: Evid. (2d ed. 2016) ................

CNN/ORC Poll of December 22, 2014,

http://i2.cdn.turner.com/cnn/2014/images/

oss wlimiamanainnneetntian

Vill

Colin Miller, Dismissed with Prejudice: Why

Application of the Anti-Jury

Impeachment Rule to Allegations of

Racial, Religious, or Other Bias Violates

the Right to Present a Defense, 61 Baylor

S.C RRIRENSan A E RelP I OUR 10

Edmonson v. Leesville Concrete Co.,

No. 89-7743, 1991 WL 636291 (U.S. Oral

I I TE cdtietiniadicreeeteg ea a os 6

Edward J. Imwinkelreid & Paul C.

Giannelli, Courtroom Criminal Evidence

(Lexis Nexis, 5th ed. 2015)................0000......... 14, 15

Edward T. Swaine, Pre-Deliberations Juror

Misconduct, Evidential Incompetence,

and Juror Responsibility, 98 Yale L.J.

ee EE crime tonbkintoststetbeseeereiscinkedotscctwce 17

i, te RSE Re Sv aE eam ee passim

Fed. R. Evid. 606 Advisory

I a oe 7

Federal Evidence (4th ed. 2016)................................ 15

George Gallup, Jr., The Gallup Poll: Public

a 24

John C. Tucker, Trial and Error: The

Education of a Courtroom Lawyer (2003) ........... 11

1X

King’s Dream Remains an Elusive Goal;

Many Americans See Racial Disparities,

Pew Research Ctr. (Aug. 22, 2013),

http://www.pewsocialtrends.org/2013/08/

22/kings-dream-remains-an-elusive-goal-

many-americans-see-racial-disparities/ ......

Mark W Bennett, Unraveling the Gordian

Knot of Implicit Bias in Jury Selection:

The Problems of Judge-Dominated Voir

Dire, the Failed Promise of Batson, and

Proposed Solutions, 4 Harv. L. & Pol’y

BE, BE aicsnreicesimisavunnccncnssencenuniscnmimeons

Nicholas S. Bauman, “Extraneous

Prejudicial Information”: Remedying

Prejudicial Juror Statements Mace

During Deliberations,

55 Ariz. L. Rev 775 (2013)........... danuesaasiens

Racist Juror Misconduct During

Deliberations, 101 Harv. L. Rev.

EE iieceviinnnctuenstentineereesinencinnetoreriessees

Reason-Rupe Public Opinion Survey,

October 2014 National Telephone Survey.

Reason-Rupe, http://reason.com/assets/

db/1412808480505. xlsx 20.00... 0.0 c cece ccc ccc cece e ees

Richard Kluger, Simple Justice (Vintage

ea iiiserainirectincdinnnicisgnteniiienaniiin

... 12-13

x

Robert P Jones, Daniel Cox & Juhem

Navarro-Rivera, Economic Insecurity,

Rising Inequality, and Doubts about the

Future: Findings from the 2014 American

Values Survey, Pub. Religion Research

Inst. (Sept. 23, 2014),

http://publicreligion.org/site/wp-

content/uploads/2014/11/

PRRI-AVS-with-Transparancy-Edits.pdf.....

Statement by the NAACP Legal Defense

and Educational Fund, Inc. before the

President's Task Force on 21st Century

Policing (Jan. 13, 2015), available at

http://www.naacpldf.org/document/ldf-

testimony-presidents-task-force-21st-

a ictcicinterennenibcdcsneesecionvines

Testimony of Sherrilyn Ifill to the United

States Senate Judiciary Committee,

Subcommittee on Oversight, Agency

Action, Federal Rights and Federal

Courts (Nov. 17, 2015), available at

http://www.naacpldf.org/document/ldf-

testimony-senate-judiciary-

committee%E2%80%99s-subcommittee-

oversight-agency-action-federal-rig ..............

William Blackstone, Commentaries on the

Laws of England (William D. Lewis ed..,

Rees Welsh & Co. 1900) .............0...0.000-000000... .

1

INTEREST OF AMICI CURIAE '

The NAACP Legal Defense & Educational Fund, Inc.

(“LDF”) is the nation’s first and foremost civil rights

law organization. Through litigation, advocacy, public

education, and outreach, LDF strives to secure equal

justice under the law for all Americans, and to break

down barriers that prevent African Americans from

realizing their basic civil and human rights.

LDF has long been concerned about the influence of

race on the administration of the criminal justice

system in particular and with laws, policies, and

practices that have a disproportionate negative impact

on communities of color, especially African Americans.

For example, LDF served as counsel of record in cases

challenging racial bias in the criminal justice system,

including the racial make-up of juries, Swain v.

Alabama, 380 U.S. 202 (1965), Alexander v. Louisiana,

405 U.S. 625 (1972), and Ham v. South Carolina, 409

U.S. 524 (1973); pioneered the affirmative use of civil

actions to end jury discrimination in Carter v. Jury

Commission, 396 U.S. 320 (1970), and Turner uv.

Fouche, 396 U.S. 346 (1970); and appeared as amicus

curiae in cases involving the use of race in peremptory

challenges in Johnson v. California, 543 U.S. 499

(2005), Miller-El v. Cockrell, 537 U.S. 322 (2003),

Georgia v. McCollum, 505 U.S. 42 (1992), Edmonson v.

Leesville Concrete Co., 500 U.S. 614 (1991), and Batson

v. Kentucky, 476 U.S. 79 (1986) (overruling Swain).

LDF also recently testified before the United States

' Pursuant to Supreme Court Rule 37.6, counsel for amici

curtae state that no counsel for a party authored this brief in

whole or in part and that no person other than amici curiae, their

members, or their counsel made a monetary contribution to the

preparation or submission of this brief. All parties have

consented to the filing of this brief.

2

Congress, as well as the President’s Task Force on 21st

Century Policing, about the prevalence of racial bias

throughout the criminal justice system and the need

to eliminate such discrimination in order to foster

confidence and trust in our public institutions.2, LDF

is also lead counsel in Buck v. Stephens, 630 F. App’x

251 (5th Cir. 2015), cert. granted, No. 15-8049, 2016

WL 531661 (U.S. June 6, 2016), a case involving the

explicit use of race in capital sentencing in which this

court recently granted certiorari.

The National Association of Criminal Defense

Lawyers (NACDL) is a_ nonprofit voluntary

professional bar association that works on behalf of

criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct.

Founded in 1958, NACDL has a _ nationwide

membership of 9,000 direct members and up to 40,000

with affiliates. NACDL’s members include private

criminal defense lawyers, public defenders, military

defense counsel, law professors, and judges. NACDL is

the only nationwide professional bar association for

public defenders and private criminal defense lawyers.

NACDL is dedicated to advancing the proper, efficient,

and just administration of justice. NACDL files

numerous amicus briefs each year in the U.S. Supreme

Court and other federal and state courts, seeking to

* See Testimony of Sherrilyn Ifill to the United States Senate

Judiciary Committee, Subcommittee on Oversight, Agency

Action, Federal Rights and Federal Courts (Nov. 17, 2015),

available at http://www.naacpldf.org/document/df-testimony-

senate-judiciary-com mittee%E2%80%998-subcom mittee-

oversight-agency-action-federal-rig; Statement by the NAACP

Legal Defense and Educational Fund, Inc. before the President's

Task Force on 21st Century Policing (Jan. 13, 2015), available at

http://www .naacpldf.org/document/ldf-testimony-presidents-

task-force-2 1st-century-policing.

3

provide amicus assistance in cases that present issues

of broad importance to criminal defendants, criminal

defense lawyers, and the criminal justice system as a

whole. NACDL has a particular interest in ensuring

that rules of evidence are interpreted and applied in a

manner consistent with a criminal defendant's

constitutional right to a full and fair trial by an

impartial jury.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

approximately 500,000 members dedicated to the

principles of liberty and equality embodied in the

Constitution. Since its involvement in the Scottsboro

cases more than 80 years ago, Powell v. Alabama, 287

U.S. 45 (1932) and Patterson v. Alabama, 294 U.S. 600

(1935), the ACLU has been deeply engaged in

identifying and addressing the persistence of racial

discrimination in our criminal justice system—from

policing to prosecution to sentencing—and has

appeared before this Court in numerous cases raising

those issues, both as direct counsel and as amicus

curlae.

Given their expertise in matters concerning the

influence of race on the criminal justice system, amici

believe their perspective would be helpful to the Court

in resolving the important constitutional issues

presented by this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case involves the extreme and explicit injection

of racial prejudice into a jury’s deliberative process—

through, in part, a juror’s use of racial slurs and

stereotypes linking race to criminality. During

deliberations on the guilt or innocence of Petitioner,

Miguel Angel Pena-Rodriguez, one juror repeatedly

4

urged his fellow jurors to use Mr. Pefia-Rodriguez’s

ethnicity as a basis for conviction. The juror argued

that Mr. Penia-Rodriguez was guilty “because he’s

Mexican and Mexican men take whatever they want.”

Pet. App. 4a-5a. The juror referenced his own

“experience as an ex-law enforcement officer” where he

purportedly observed on “patrol, nine times out of ten

Mexican men were guilty of being aggressive toward

women ” Id. This juror also asserted that an alibi

witness's testimony was not credible because he was

an “illegal” (in fact, the witness was a lawful

permanent resident). Pet. Br. 8.

This egregious display of racial bias was voluntarily

reported by two concerned members of the same jury

and decisively documented in affidavits. Yet, the

Colorado Supreme Court held that, notwithstanding

the Sixth Amendment’s guarantee of an impartial

jury, this extreme misconduct was insulated from

judicial review because the state rules of evidence

generally bar the admission of juror testimony to

impeach a jury verdict (the “no-impeachment” rule).

Amici represent three leading legal organizations

that work on a wide range of civil rights, civil liberties,

racial justice, and criminal justice issues in

jurisdictions across the country. Two of the amici filed

briefs at the certiorari stage in this case, to elucidate

the important issues that it raises. Now, all three join

together to urge the Court to recognize the

constitutional limits of the “no-impeachment” rule in

cases involving racially-prejudiced juror misconduct,

and to highlight two key reasons for reversing the

Colorado Supreme Court.

First, for over a century, this Court has strived to

eradicate racial bias from our criminal justice system

writ large. Because racial bias and discrimination in

the jury system uniquely undermines the proper

5

functioning of the criminal justice system, this Court

has consistently treated such discrimination as an

exceptional harm that requires exceptional remedies.

Recent national events exposing the stubborn

persistence of racial bias in the administration of

criminal justice powerfully reinforce the continued

need for this Court’s commitment to fair and race-

neutral criminal proceedings.

Yet, despite this Court’s longstanding concerns, the

Colorado Supreme Court fundamentally misconstrued

the constitutional significance of racial bias in jury

deliberations. It failed to appreciate this Court’s well-

established precedents addressing both the special

harms of racial bias in jury decision-making and the

critical importance of public confidence in the

operation of our system of justice. In doing so, the

Colorado Supreme Court subjugated Mr. Pefa-

Rodriguez's federal Sixth Amendment rights to the

state policy concerns that animate Colorado’s state

rules of evidence.

Second, allowing racial bias to fester in the jury

system has grave ramifications for public confidence in

the criminal justice system at several levels. Leaving

the lower court’s decision in place raises the risk of

apparent and actual bias for an individual facing

criminal charges in what should be fair and impartial

judicial proceedings. It erodes community trust in the

objectivity and accuracy of jury verdicts and the legal

system overall. It also undermines central democratic

ideals of fairness and equality that the jury and the

Sixth Amendment’s guarantee of impartiality aim to

uphold. Thus, the Colorado Supreme Court’s refusal

to allow the lower court to even consider the

undisputed racial prejudice that tainted Mr. Pefia-

Rodriguez's jury deliberations not only harmed Mr.

Pena-Rodriguez in a very tangible way, but also

6

undermined public confidence in this particular jury

verdict and the fair operation of the judicial system

generally.

Were this Court to affirm Colorado’s decision to

insulate overt juror racial discrimination, it would

send an ominous signal to jurors, judges, defendants,

and the public that the courts condone racially biased

verdicts. As this Court has repeatedly declared,

however, this simply cannot be true. Given the

egregiousness of this case and the growing public

concerns about racial bias in our criminal justice

system, it is imperative for this Court to reaffirm its

existing precedents regarding the sanctity of the Sixth

Amendment and the integrity of the justice system.

Ultimately, defendants and jurors alike should be

able to enter the courthouse, “helieving that times

ha[ve] changed” and “confident that justice [will]

be guided by the promise __ that they would be judged

not by the color of their skin, but by the content of their

character.”* That promise was broken for Mr. Pena-

Rodriguez, but this Court can and should restore that

covenant by correcting the overt and extreme racial

prejudice that infected the jury verdict in the

proceedings below.

ARGUMENT

After two jurors came forward to report how racial

animus had tainted the jury’s deliberations, Mr. Pefia-

Rodriguez claimed that this prejudice violated his

Sixth Amendment constitutional right to trial “by an

3 Edmonson v. Leesville Concrete Co., No. 89-7743, 1991 WL

636291, at *29 (U.S. Oral Arg., Jan. 15, 1991).

7

impartial jury,” U.S. Const. Amend. VI,‘ and sought a

new trial. A bare majority of the Colorado Supreme

Court affirmed Mr. Pena-Rodriguez’s conviction based

on Colorado's “no-impeachment” rule, which closely

mirrors Federal Rule of Evidence 606(b) and reflects

the general common law practice that juror testimony

is not normally admissible to impeach a jury verdict.®

Amici urge this Court to make clear that the Sixth

Amendment right to an impartial jury indisputably

trumps the policy considerations underlying state

evidentiary rules—especially where, as here, a juror

contaminated the deliberation process with egregious

and explicit racial bias.

I. THE RIGHT TO AN IMPARTIAL JURY

INCLUDES THE RIGHT TO A JURY

DETERMINATION UNCORRUPTED

BY RACIAL PREJUDICE.

For over a century. strong majorities of this Court

have repeatedly recognized that racial prejudice in the

jury system is an exceptional problem meriting

recurrent and decisive interventions. This is because

the right to a trial reflects “a fundamental decision

about the exercise of official power—a reluctance to

entrust plenary powers over the life and liberty of the

citizen to one judge or to a group of judges,” rather

than a defendant’s fellow citizens. Duncan v. State of

4 The Fourteenth Amendment, which makes the Sixth

Amendment applicable to the states, likewise provides a

coterminous right to an impartial jury. See, e.g., Pet. 12 n.3.

Throughout this brief, we refer to this simply as a Sixth

Amendment right.

5 The Rule says that this practice promotes the “freedom of

deliberation,” “finality of verdicts,” and “protection of jurors

against annoyance,” Fed. R. Evid. 606 Advisory Committee's

Notes.

8

La., 391 U.S. 145, 155-56 (1968). This investiture of

judicial power in the community upholds democratic

principles of sovereignty and legitimacy by “ensur[ing]

continued acceptance of the laws by all of the people.”

Edmonson, 500 U.S. at 624 (quoting Powers v. Ohio,

499 U.S. 400, 407 (1991)) (internal quotation marks

omitted).

Juries also serve as the principal means of protecting

the American citizenry from the State’s potential

misuse of its broad powers to confine or execute its

citizens. See, e.g., Glasser v. United States, 315 U.S.

60, 84 (1942) (the jury serves as the “prized shield

against oppression”); Batson v. Kentucky, 476 U.S. 79,

86 (1986) (“The petit jury has occupied a central

position in our system of justice by safeguarding a

person accused of crime against the arbitrary exercise

of power by prosecutor or judge.”); see also Batson, 476

U.S. at 87 (arguing that juries ensure the “protection

of life and liberty against race or color prejudice.”’)

(citation omitted). The right to an impartial jury trial

establishes “an inestimable safeguard against the

corrupt or overzealous prosecutor and against the

compliant, biased, or eccentric judge,” “prevent|s]

oppression by the Government,” and “protect{s]

against unfounded criminal charges” and “arbitrary

law enforcement.” Duncan, 391 U.S. at 155-56.

Indeed, jurists and historians alike have long

recognized these critica] functions of the jury, dating

back to our nation’s founding.®

8 See, e.g., Irvin v. Dowd, 366 U.S. 717, 721 (1961) (“England,

from whom the Western World has largely taken its concepts of

individual! liberty and of the dignity and worth of every man, has

bequeathed to us safeguards for their preservation, the most

priceless of which is that of trial by jury.”); see also 3 Blackstone,

William, Commentaries on the Laws of England *380 (William D.

9

In order to ensure that the jury is able to fulfill these

vital functions, this Court has enacted a range of

procedural safeguards and substantive requirements.

Chief among them is the right to a jury untainted by

racial bias because “[a] juror who allows racial bias

to influence assessment of the case breaches the

compact [between judge and jury] and renounces his

or her oath.” J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127, 153 (1994) (Kennedy, J., concurring in the

judgment). Indeed, this Court has unequivocally

declared that “discrimination on the basis of race,

odious in all aspects, is especially pernicious in the

administration of justice,” Rose v. Mitchell, 443 U.S.

545, 555 (1979); see also id. at 558-59, and “nothing

would be more pernicious to the jury system than for

society to presume that persons of different

backgrounds go to the jury room to voice prejudice,”

J.E.B.,511 U.S. at 154.

A. The Colorado Supreme Court

Misapprehended the Constitutional

Import of Racial Prejudice in the Jury

System as a Uniquely Harmful and

Critical Issue.

“It [would be] an affront to justice to argue that a fair

trial includes the right to discriminate against a group

of citizens based upon their race.” Georgia uv.

McCollum, 505 U.S. 42, 57 (1992). Jury-related

discrimination is inimical to our judicial system and

Lewis ed., Rees Welsh & Co. 1900) (stressing the significance of

unbiased jury members, who are “the best investigators of truth,

and the surest guardians of public justice.”); 1 Alexis de

Tocqueville, Democracy in America 282 (Henry Reeve trans.,

George Adlar 1840) (arguing that jury service is “as direct and as

extreme a consequence of the suvereignty of the people as

universal suffrage’).

10

“an impediment to securing to [Black citizens] that

equal justice which the law aims to secure to all

others.” Batson, 476 U.S. at 87-88 (quoting Strauder

v. West Virginia, 100 U.S. 303, 308 (1879)). In the

context of criminal proceedings, the taint of racial bias

can contaminate critical decisions affecting a

defendant’s liberty. life, and death.’ A single juror

harboring racial bias can infect every aspect of the

deliberations and undermine the integrity of the

particular case and the justice system as a whole.®

With respect to jury selection, this Court has

consistently vacated criminal convictions that were

compromised by racial bias because “a defendant has

the right to an impartial jury that can view him

without racial animus, which so long has distorted our

system of criminal justice.” McCollum, 505 U.S. at 58.

See also Powers, 499 U.S. at 411 (referencing a

defendant’s “right to be tried by a jury free from ethnic

for] racial prejudice”); Batson, 476 U.S. 79;

Miller-El v. Dretke, 545 U.S. 231 (2005); Snyder v.

7 Especially troubling is the possibility that an individual could

be sentenced to death by a racially biased jury and that a rule of

evidence could trump constitutional protections and prevent any

examination of such a claim. See, e.g., Colin Miller, Dismissed

with Prejudice: Why Application of the Anti-Jury Impeachment

Rule to Allegations of Racial, Religious, or Other Bias Violates the

Right to Present a Defense, 61 Baylor L. Rev. 872, 897-98 (2009)

(analyzing capital cases where Rule 606(b) was applied to prevent

jurors from impeaching their verdicts with evidence of racial

bias).

8 See Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.) (“The bias

or prejudice of even a single juror would violate [the defendant})'s

right to a fair trial.”), cert. denied, 525 U.S. 1033 (1998); United

States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.) (“If only one

juror is unduly biased or prejudiced the criminal defendant is

denied his Sixth Amendment right to an impartial panel.”), cert.

denied, 434 U.S. 818 (1977).

11

Louisiana, 552 U.S. 472 (2008); Foster v. Chatman,

136 S. Ct. 1737 (2016). “[O}jver a century of

jurisprudence {has been] dedicated to the elimination

of race prejudice within the jury selection process.”

Edmonson, 500 U.S. at 618 (concluding that racial

discrimination in the jury system is impermissible in

civil, as well as criminal, proceedings).

While racial discrimination in jury selection centers

on an attorney's discriminatory use of peremptory

challenges to exclude members of protected groups

from the jury, as opposed to the racial discrimination

exhibited by a seated juror during jury deliberations,

both forms of discrimination undermine the integrity

of the jury process and public confidence in the justice

system. “We do not prohibit racial bias in jury

selection only to encourage it in jury deliberations.

Once seated, a juror should not give free rein to some

racial bias of his or her own.” J.E.B., 511 U.S. at

153 (Kennedy, J., concurring in the judgment).’

Indeed, race discrimination should play no part in the

justice system at any stage: “In our heterogeneous

% In some instances, biased juries issued verdicts as a symbol

of resistance to integration and civil rights laws. See, e.g., John

C. Tucker, Trial and Error: The Education of a Courtroom Lawyer

288 (2003) Gury foreman said he hoped that the verdict, ruling

against Black homeowners in a housing segregation case, would

help end “the mess Earl Warren made with Brown v. Board of

Education and all that nonsense”). In others, prejudiced juries

issued indictments in ways that endorsed or exacerbated racial]

violence. See, e.g., Charles Abrams, Forbidden Neighbors: A

Study of Prejudice in Housing 103-19 (1955), in The Suburb

Reader 328-30 (Becky M. Nicolaides & Andrew Wiese eds., 2006)

(grand jury refused to indict the white mob that attacked the

family of a Black veteran that had moved into an all-white

apartment building, instead charging the family’s NAACP

attorney and the apartment building's owner, attorney, and

agent).

12

society policy as well as constitutional considerations

militate against the divisive assumption—as a per se

rule—that justice in a court of law may turn upon the

pigmentation of skin, the accident of birth, or the

choice of religion.” Ristaino v. Ross, 424 U.S. 589, 596

n.8 (1976) (emphasis added).

In the jury deliberation context, this Court has

warned that “[t]here may be cases of juror bias so

extreme that, almost by definition, the jury trial right

has been abridged,” Warger v. Shauers, 135 S. Ct. 521,

529 n.3 (2014). If this case, involving multiple

statements of overt racial and ethnic bias does meet

that standard, it is hard to imagine any constitutional

limits on “no-impeachment” rules.

The promise and protection of jury impartiality, as

codified in the Sixth Amendment, has even greater

constitutional significance in light of the Equal

Protection Clause of the Fourteenth Amendment.

Because “[e]radication of the evil of state supported

racial prejudice is at the heart of the Fourteenth

Amendment,” the “constitutional interests of the

affected party are at their strongest when a jury

employs racial bias. ”" 27 Charles A. Wright and

Victor J. Gold, Fed. Prac. & Proc.: Evid. § 6074 (2d ed.

2016) (footnotes omitted). Indeed, the Reconstruction

Amendments took specific aim at both racial exclusion

in jury selection and racial prejudice in jury

deliberations:

A principal gain under that [Reconstruction]

program, implicit in the Fourteenth Amendment

and made explicit under the 1875 Civil Rights Act,

was the right to a fair jury trial. The

Fourteenth Amendment and the 1875 follow-up

legislation had pounded the point [fof the Sixth

Amendment] home. Their purpose in this

connection was quite obviously to integrate

13

Negroes into the jury system in order to assure

the black man of an impartial trial and thereby

counteract a presumed hostility of white jurors

toward black defendants.

Richard Kluger, Simple Justice 62-64 (Vintage Books,

1977 ed.).'°

Thus, the Colorado Supreme Court committed a

serious error in refusing to consider the extreme and

explicit evidence that racial prejudice played a role in

the jury deliberations in this case. In doing so, it

ignored this Court’s instructions about the special

salience of racial bias in the jury system and the

constitutional imperative to remove racial animus—

an “especially pernicious” form of bias—from the

criminal justice system. See Rose, 443 U.S. at 555-56.

The Colorado Supreme Court failed to acknowledge

this Court’s denunciation of how “racial animus”

intolerably “distort[s] our system of criminal justice”

McCollum, 505 U.S. at 58, and subverts the

foundational purposes of the constitutional right to a

jury trial, see id. at 49-51. In fact, only the dissent

below noted that “[r]acial bias differs from other forms

of bias in that it compromises institutional

legitimacy.” Pet. App. 25a. Instead, the decision below

erroneously suggests that the Sixth Amendment has

little, if any, import or impact on a case where explicit

Even the adversaries of the Fourteenth Amendment

understood that it would apply specifically to racial

discrimination in jury participation, Kluger, supra, at 426

(chronicling the opposition of Delaware), and thereby bolster

Sixth Amendment rights, see generally Amicus Br. of

Constitutional Accountability Center (discussing how the

Framers of the Reconstruction Amendments viewed eliminating

racial bias from jury deliberations as critica) to vindicating the

protections of both the Sixth and Fourteenth Amendments).

14

racial prejudice has tainted a jury verdict.'' Such a

position should not be tolerated by this Court.

B. Policy Concerns Underlying No-

Impeachment Rules Cannot Override

Constitutional Rights.

The Colorado Supreme Court’s plain error in

equating the constitutional right to a fair trial with an

evidentiary rule invites this Court’s reversal. Pet.

App. 2a (comparing “two fundamental tenets”: “a

defendant's constitutional right to an impartial jury”

and the protections of the state’s “no-impeachment”

rule); Pet. App. 18a (Marquez, J., dissenting) (“[T]he

majority elevates general policy interests _[over the]

fundamental constitutional right to a fair trial.”). It is

axiomatic that the United States Constitution is the

supreme law of the land and has precedence over state

rules of evidence, which cannot be accorded the same

legal weight as constitutional mandates. See U.S.

Const. Art. VI (Supremacy Clause); see also Crawford

v. Washington, 541 U.S. 36, 51 (2004) (“[W]e once

again reject the view that the Confrontation Clause[’s]

application depends upon ‘the law of Evidence

for the time being.”); 1 Edward J. Imwinkelreid &

Paul C. Giannelli, Courtroom Criminal Evidence § 4

(Lexis Nexis, 5th ed. 2015) (“The first source of state

law evidence [in the hierarchy] is the federal

Constitution. A fourth source is the state's statutes

lincluding rules of evidence].”).

'! It would be strange and troubling if other forms of

misconduct provide grounds to revisit verdicts in criminal cases—

but not racial prejudice. For example, the Tenth Circuit held that

a verdict cannot stand when a stenographer emphasized parts of

the jury instructions while reading them to the jury in the jury

room. Little v. United States, 73 F.2d 861, 867 (10th Cir. 1934).

15

Thus, “[i]f the exercise of an evidentiary rule

impinges upon a criminal defendant's constitutional

rights, the evidence rule must give way to the

defendant's right to a fair trial ”" 3 Barbara E.

Bergman et al., Wharton's Criminal Evidence § 11:6

(15th ed. 1999). See also Imwinkelreid & Giannelli,

supra, § 6 (in the event of “a conflict between a

provision of the federal Constitution and a state

statute the Constitution prevails under the

supremacy clause.”); Wright & Gold, supra, § 6074

(“Evidentiary rules that insulate from discovery the

violation of constitutional rights may themselves

violate those rights.”); 2 Federal Evidence § 5:10 (4th

ed. 2016) (“Significant authority holds that [the]

constitutional right [to present evidence]

occasionally overrides rules of exclusion.”).

Legitimate policy concerns that animate “no-

impeachment” rules are insufficient to displace the

primacy of constitutional protections. The majority

below reasoned that “[p}rotecting the secrecy of jury

deliberations” invariably trumps “a defendant's

opportunity to vindicate his fundamental

constitutional right to an impartial jury untainted by

the influence of racial bias.” Pet. App. 27a (Marquez,

J., dissenting). That holding is clearly wrong.

Courts should not apply “no-impeachment” rules

“mechanistically to defeat the ends of justice.”

Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

With respect to the Sixth Amendment right to a fair

trial by an unbiased jury in particular, this case

demonstrates that “it would not be safe to lay down

any inflexible rule” in the name of secrecy or finality,

“because there might be instances in which [a juror’s

testimony] could not be excluded without violating the

plainest principles of justice.” McDonald v. Pless, 238

U.S. 264, 268-69 (1915) (quoting United States v. Reid,

16

53 U.S. (12 How.) 361, 366 (1851)) (internal quotations

omitted).!?

[B]lanket rules either excluding all juror

testimony of bias or admitting all such testimony

are inappropriate. A balance must be struck,

protecting parties from the most egregious cases

of jury bias while leaving the jury free to decide

most cases without fear of judicial intrusion.

While lines may be difficult to draw in many

cases, it should be clear that among the most

serious cases of jury bias are those involving

racial prejudice.

Wright & Gold, supra, § 6074 (footnotes omitted); see

also Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir.

1995) (Jones, J., concurring) (quoting Wright & Gold),

cert. denied, 516 U.S. 992 (1995). It would be

particularly inappropriate to have a rule that bars the

admissibility of evidence of racial bias because the

underlying misconduct, if established, potentially

constitutes a structural defect. The need for a

complete inquiry into juror impartiality thus is

heightened in cases involving racial bias. Conversely,

'2 In other analogous contexts, members of this Court have

recognized the desirability of having a post-conviction hearing “to

determine whether a juror is biased.” Smith v. Phillips, 455 U.S.

209, 221-22 (1940) (O'Connor, J., concurring). Blackstone went

even further, stating that “[c]lauses of suspending the judgment

by granting a new trial” included both extra-record influences and

“any gross misbehaviour of the jury among themselves at

Blackstone, supra, at *387 (emphasis added). Moreover, LDF has

long maintained that, in some instances, racial prejudice will—in

light of its substance and context—be egregious enough to raise a

presumption of bias. See e.g., Brief of the NAACP Legal Defense

and Educational Fund, Inc. as Amicus Curiae in Support of

Petitioner, Sterling v. Dretke, 117 Fed. Appx 328 (5th Cir.)

(unpublished), cert. denied, 544 U.S. 1053 (2005), 2005 WL

952252 at *7 (Apr. 22, 2005).

17

the policy of promoting the finality of judgments is

gravely undermined when the court is precluded from

considering evidence tending to show that the

underlying judgment may be void.

The Colorado Supreme Court's policy justifications

for tolerating the extreme racial prejudice in this case

are deeply flawed.

First, concerns about attorneys engaging in fishing

expeditions cannot alone support an unbounded

application of Rule 606(b), because jurors can and do

volunteer information about racial bias in

deliberations, as demonstrated by the case at hand. 27

Wright & Gold, supra § 6072; Edward T. Swaine, Pre-

Deliberations Juror Misconduct, Evidential

Incompetence, and Juror Responsibility, 98 Yale L.J.

187, 194 (1988) (noting the “evident willingness of

jurors to volunteer information” and explaining Rule

606(b)’s exceptions arguably “permit[] good faith

attempts to discover evidence relating to an ‘outside

influence”). Recognizing “an exception for testimony

pertaining to racist juror misconduct would not

significantly impair rule 606(b),” yet “would promote

universally accepted countervailing interests—the

defendant's and society’s interests in having a criminal

justice system free of racial bias.” Racist Juror

Misconduct During Deliberations, 101 Harv. L. Rev.

1595, 1599 (1988).

The Colorado Supreme Court's other concerns about

the harassment of jurors are also misplaced, since

judges have many tools to control the conduct of

lawyers and protect the jury from unwanted contact.

See e.g., Nicholas S. Bauman, “Extraneous Prejudicial

Information”: Remedying Prejudicial Juror

Statements Made During Deliberations, 55 Ariz. L.

Rev. 775, 798, 802 & nn.245-47 (2013) (describing

other rules some jurisdictions have adopted to protect

18

jurors from harassment); Benjamin T. Huebner,

Beyond Tanner: An Alternative Framework for

Postverdict Juror Testimony, 81 N.Y.U. L. Rev. 1469,

1493-95 (2006) (noting that states place other limits on

attorneys or their investigators contacting jurors after

trial).

Second, while maintaining the secrecy of jury

deliberations is certainly an important consideration,

our judicial system rests ultimately on the fairness

and impartiality of the process. “[T]he right to an

impartial jury under the Sixth and Fourteenth

Amendments,” Gray v. Mississippi, 481 U.S. 648, 658

(1987), “goes to the very integrity of the legal system”

id. at 668. Thus, it would be improper to blunt an

explicit constitutional right because of a_ policy

consideration that is implicitly rooted in common law

rather than a competing—and _ overriding—

constitutional mandate.

Third, the Colorado Supreme Court’s decision seems

to rest on the erroneous presumption that Sixth and

Fourteenth Amendment rights no longer apply after

the issuance of a jury verdict. Pet. App. 27a (Marquez,

J., dissenting) (disagreeing with the majority's

categorical suggestion that secrecy “must trump a

defendant’s opportunity to vindicate his fundamental

constitutional right”). But claims under Sixth and

Fourteenth Amendments are regularly litigated well

beyond the exhaustion of direct appeals through post-

conviction under the Anti-Terrorism and Effective

Death Penalty Act. See, e.g., Foster, 136 S. Ct. 1737

(Fourteenth Amendment claim brought thirty years

after verdict); Berghuis v. Smith, 559 U.S. 314 (2010)

(certiorari granted regarding Sixth Amendment claim

ten years after verdict); see also Duren v. Missouri, 439

U.S. 357 (1979) (overturning conviction based on Sixth

19

Amendment claim two years after Missouri Supreme

Court upheld verdict).

Fourth, the Colorado Supreme Court erroneously

assumed that a policy of relying upon voir dire alone

could root out racial bias in jury deliberations, see Pet.

Br. 24-27, because jurors are unlikely to publicly admit

to their own racial prejudices, Pet. 23-24, and jurors’

unconscious biases may later manifest as explicit

biases during deliberations.'* See also Pet. Br. 21

(“None of the Tanner safeguards adequately protects

defendants when a juror infects deliberations with

racially biased assertions.”).

On balance, courts are readily equipped to deal with

extreme and extraordinary instances of juror bias, as

in this case, and should not ignore an accused's

constitutional right to an impartial jury due to

nebulous policy concerns. See Pet. Br. 29-31, 38;

(listing twenty jurisdictions that already allow courts

to consider juror testimony that racial bias infected

deliberations); see generally Amicus Br. of Retired

Judges. Likewise, judges are certainly capable of

addressing jury secrecy concerns by focusing any

inquiries into jury misconduct on the prejudicial

misconduct at hand.

13 See, e.g., Mark W Bennett, Unraveling the Gordian Knot of

Implicit Bias in Jury Selection: The Problems of Judge-

Dominated Voir Dire, the Failed Promise of Batson, and Proposed

Solutions, 4 Harv. L. & Pol’y Rev. 149, 152 (2010) (“Implicit biases

are unstated and unrecognized and operate outside of

conscious awareness. Social scientists refer to them as hidden,

cognitive, or automatic biases, but they are nonetheless pervasive

and powerful.”); Pet. 23 (discussing observations of federal judge

on unconscious bias).

20

Il. EXCLUDING EXPLICIT EVIDENCE OF

RACIAL DISCRIMINATION IN JURIES

WOULD SERIOUSLY UNDERMINE

PUBLIC CONFIDENCE IN THE

CRIMINAL JUSTICE SYSTEM.

The jury exists, in part, to instill public confidence in

our legal system. Almost two centuries ago, Alexis de

Tocqueville observed that the jury “imbues all classes

with a respect for the thing judged, and with the notion

of right.” Tocqueville, supra, at 112. This Court, too,

has long recognized that “[t]he purpose of the jury

system is to impress upon the criminal defendant and

the community as a whole that a verdict of conviction

or acquittal is given in accordance with the law by

persons who are fair.” Powers, 499 U.S. at 413.

Respect for the verdicts of our courts is, in part,

responsible for ensuring the “continued acceptance of

the laws by all of the people.” IJd.; see also Edmonson,

500 U.S. at 624 (“[T]he jury system performs the

critical governmental functions of guarding the rights

of litigants and ensuring continued acceptance of the

laws by all of the people.”) (quoting Powers, 499 U.S.

at 407) (internal quotation marks omitted); Williams

v. Pennsylvania, 579 U.S. _, No. 15-5040, 2016 WL

3189529 (U.S. June 9, 2016). That public confidence is

undermined by jury verdicts tainted by the type of

explicit racial prejudice evidenced in this case.

Moreover, this Court has emphasized that “[t]he

need for public confidence is especially high in cases

involving race related crimes,” where, as in the case at

hand, “emotions in the affected community will

inevitably be heated and volatile.” McCollum, 505

U.S. at 49. The heightened concern about public

confidence in racially charged cases stems from the

troubling history of all-white juries and anti-Black

persecution, supra Part I.A. It also reflects this

21

Court's special solicitude for combating racial bias in

the administration of justice, supra Part I.

A. Racial Prejudice in the Jury System

Damages Individual Proceedings,

Community Perceptions, and

Democratic Principles.

The damage caused by racial bias in the jury system

is “not limited to the defendant—there is injury to the

jury system, to the law as an institution, to the

community at large, and to the democratic ideal

reflected in the processes of our courts.” Ballard v.

United States, 329 U.S 187, 195 (1946). Each of these

harms supports reversal of the decision below.

First, racial prejudice within the jury system

“create[s] the appearance of bias in the decision of

individual cases, and increase[s] the risk of actual

bias as well.” Peters v. Kiff, 407 U.S. 493, 503 (1972).

See also Powers, 499 U.S. at 411 (“[RJacial

discrimination in the selection of jurors places the

fairness of a criminal proceeding in _ doubt.”);

Edmonson, 500 U.S. at 628 (same).

Second, the harm caused by racial bias in the jury

system “extends beyond that inflicted on the defendant

and the excluded juror to touch the entire community.”

Batson, 476 U.S. at 87 See also J.E.B.,511 U.S. at 140

(‘The community is harmed by the State's

participation in the perpetuation of invidious group

stereotypes.”); Rose, 443 U.S. at 556 (“The harm is not

only to the accused It is [also] to society as a

whole.”); McCollum, 505 U.S. at 49-51 (arguing that

bias in the jury system “undermine[s} the very

foundation of our system of justice—our citizens’

confidence in it.”). The extent to which justice is

achieved in a particular case or for a particular class

(e.g., people of color charged with crimes) directly

22

shapes how the community perceives the criminal

justice system. See, e.g., J.E.B., 511 U.S. at 140

(claiming that unredressed juror prejudice “invites

‘cynicism respecting the jury’s neutrality and its

obligation to adhere to the law”); Rose, 443 U.S. at 555-

556 (“Discrimination on the basis of race casts

doubt on the integrity of the judicial process [and]

impairs the confidence of the public in _ the

administration of justice.”).

Third, a jury verdict tainted by racial prejudice “not

only violates our constitution and the laws enacted

under it but is [also] at war with our basic concepts of

a democratic society and a_ representative

government.” Rose, 443 U.S. at 564 (quoting Smith v.

Texas, 311 U.S. 128, 130 (1940)). See also Ballard, 329

U.S. at 195 (recounting injury “to the democratic ideal

reflected in the processes of our courts”). As Justice

Thurgood Marshall explained:

[IJnstitutions [of criminal justice] serve to

exemplify, by the manner in which they operate,

our fundamental notions of fairness and our

central faith in democratic norms. They reflect

what we demand of ourselves as a Nation

committed to fairness and equality in the

enforcement of the law That is_ why

discrimination “is especially pernicious in the

administration of justice,” why its effects

constitute an injury “to the law as an institution,”

why its presence must be eradicated root and

branch by the most effective means available.

Hobby v. United States, 468 U.S. 339, 352 (1984)

(Marshall, J., dissenting) (citations omitted).

23

B. A Court’s Refusal to Consider Whether

a Verdict is Tainted by Racial Prejudice

Erodes Public “onfidence.

The decision below failed to address the distinct

ways in which racial prejudice in jury deliberations

undermines public confidence in the criminal justice

system. The majority below instead focused solely on

the “potential” that investigation into claims of racial

bias in juries “would shatter public confidence in the

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

But disregarding evidence of overt racial or ethnic

bias has “precisely the opposite effect.” Pet. App. 18a

(Marquez, J., dissenting). The majority below “ignores

the demoralizing effect on public confidence caused by

reports that jurors are racist, but [that] evidence of

their racism is not admissible to overturn their

verdicts.” Racist Juror Misconduct During

Deliberations, 101 Harv. L. Rev. at 1600 (footnote

omitted).'4 This Court rejected a similar argument in

Aldridge v. United States, where it was asserted “that

it would be detrimental to the administration of the

law to allow questions to jurors as to racial or

religious prejudices.” 283 U.S. 308, 314-15 (1931).

There, the Court explained that “it would be far more

injurious to permit it to be thought that persons

entertaining a disqualifying prejudice were allowed to

serve as jurors and that inquiries designed to elicit the

fact of disqualification were barred,” id. at 315, and

that there would be “[nJo surer way to bring the

processes of justice into disrepute,” id., than to

'4 Moreover, in other contexts, this Court has recognized the

“principle that justice cannot survive behind walls of silence

[that] has long been reflected in the ‘Anglo-American distrust for

secret trials.” Sheppard v. Maxwell, 384 U.S. 333, 349-50 (1966).

24

insulate racial bias from judicial scrutiny or redress.

The same conclusion is dictated here.

Without appropriate redress, the racial stereotypes

and smears that infected the jury verdict in this case

not only render Mr. Pena-Rodriguez’s case

fundamentally unfair, they also significantly impair

public confidence in our system of justice. Less than

45 percent of all Americans believe that racial groups

are treated equally in the criminal justice system.

Those numbers plummet further among racial

minorities, into the low teens for African Americans, !5

and have remained stagnant for over two decades. '6

‘8 See, e.g., CNN/ORC Poll of December 22, 2014 at 6,

http:/i2.cdn.turner.com/cnn/201 4/images/12/22/cnn.poll.

12.22.pdf (only 41 percent of the American population thinks that

the criminal justice system treats all groups equally; 50 percent

of whites and 21 percent of non-whites); Reason-Rupe Public

Opinion Survey, October 2014 National Telephone Survey,

Reason-Rupe, _http://reason.com/assets/db/1412808480505.xIsx

(Oct. 9, 2014) (45 percent of the American population thinks that

the criminal justice system treats all groups equally; 14 percent

of African-Americans, 32 percent of Hispanics, and 53 percent of

white respondents); Robert P Jones, Daniel Cox & Juhem

Navarro-Rivera, Economic Insecurity, Rising Inequality, and

Doubts about the Future: Findings from the 2014 American

Values Survey, 38 (Pub. Religion Research Inst. Sept. 23, 2014),

http://publicreligion.org/site/wp-content/uploads/20 1 4/11/PRRI-

AVS-with-Transparancy-Edits.pdf (44 percent of all Americans

think that blacks and other minorities receive equal treatment as

whites in the criminal justice system; 16 percent of African-

Americans, 40 percent of Hispanics, and 49 percent of white

respondents).

'6 Compare George Gallup, Jr., The Gallup Poll: Public Opinion

51 (1996) (68 percent of African-American respondents felt that

the American justice system was biased against African-

Americans), with King’s Dream Remains an Elusive Goal; Many

Americans See Racial Disparities 12, Pew Research Ctr. (Aug. 22,

25

This perception of racial unfairness in_ the

administration of criminal justice is reinforced by

cases of explicit racial epithets and stereotypes being

used to justify convictions and sentences. !’

A decision from this Court affirming the decision

below would send an ominous signal that the

American judiciary is, at best, indifferent to racial bias

in jury verdicts. At worst, this Court would be seen as

condoning the jurors abhorrent statements and

blessing a “guilty” verdict it knows to be tainted. Mere

disapproval of the juror’s statements is not enough;

this Court must affirm that the judiciary will take

corrective action to ensure that verdicts are rendered

based on facts, not racial biases.

2013), http://www.pewsocialtrends.org/2013/08/22/kings-dream-

remains-an-elusive-goal-many-americans-see-racial-disparities/

(same).

17 See also, e.g., Kittle v. United States, 65 A.3d 1144, 1147-48

(D.C. 2013) (“[A]ll ‘blacks’ are guilty regardless.”); United States

v. Shalhout, 507 F App'x 201, 203 (3d Cir. 2012) (“[T)he

defendants [were] guilty because they were of Arabic descent.”);

United States v. Villar, 586 F.3d 76, 81, 85-87 (1st Cir. 2009) (*!

guess we're profiling but they [Hispanics] cause all the trouble.”);

United States v. Benally, 546 F.3d 1230, 1231 (10th Cir. 2008)

(“[W]hen Indians get alcohol, they all get drunk,’ and when

they get drunk, they get violent.”); United States v. Henley, 238

F.3d 1111, 1113 (9th Cir. 2001) (“All the niggers should hang.”);

Shillcutt v. Gagnon, 827 F.2d 1155, 1156 (7th Cir. 1987) (“Let's

be logical. He’s black and he sees a seventeen year old white gir!

~ 1 know the type.”); United States v. Heller, 785 F.2d 1524, 1526

(11th Cir. 1986) Guror “admitted making an anti-Semitic ‘slur”

and jokes during trial of Jewish defendant). See also Smith v.

Brewer, 444 F Supp. 482, 485 (S.D. lowa 1978) (juror strutted

around the jury room imitating a black minstrel), affd, 577 F.2d

466 (8th Cir.), cert. denied, 439 U.S. 967 (1978); Commonwealth

vu. Laguer, 571 N.E.2d 371, 375 (Mass. 1991) (stating, in an

aggravated rape trial, that “spics screw all day and night”).

26

This Court has expressed particular concern for the

public’s “impression that the judicial system has

acquiesced” to certain forms of discrimination “or that

the ‘deck has been stacked’ in favor of one side.”

J.E.B., 511 U.S. at 140. Furthermore, this Court has

recognized that allowing “[a]ctive discrimination”

involving juries “condones violation of the United

States Constitution within the very institution

entrusted with its enforcement, and so invites

cynicism respecting the jury's neutrality and its

obligation to adhere to the law.” Powers, 499 U.S. at

412. This troubling result is further enhanced when

the discrimination at issue, as in this case, takes place

in the official forum of a court. See, e.g., McCollum,

505 U.S. at 53 (“[T]he courtroom setting intensifies

the harmful effects of the discriminatory act.”);

Edmonson, 500 U.S. at 628 (“[T]he injury caused by

the discrimination is made more severe because the

government permits it to occur within the courthouse

itself.”). This sort of “[rJacial prejudice converts the

jury itself [from a safeguard] into an instrument of

oppression.” Wright & Gold, supra, § 6074.

CONCLUSION

For over a century, this Court has strived to combat

racial discrimination in the jury system. Relying on

these precedents, the nation has made significant

steps towards the constitutional goal of equality for all.

Although more work remains to be done, this Court’s

commitment to racial fairness in criminal justice

promotes trust in the rule of law, particularly for the

communities of color that amici serve.

Unbridled racial prejudice, like that which infected

the jury in Mr. Pena-Rodriguez's case, fundamentally

undermines the integrity of our justice system and

cannot be tolerated by our Constitution. “If our society

27

is to continue to progress as a multiracial democracy,

it must recognize that the automatic invocation of race

stereotypes retards that progress and causes

continued hurt and injury.” Edmonson, 500 U.S. at

630-31. Neither precedent nor prudence support

Colorado's strained stance to the contrary. This Court

should not condone that position, and it should

reverse.

Respectfully submitted,

SHERRILYN [FILL JOHN PAUL SCHNAPPER-

Director-Counse] CASTERAS *

JANAI NELSON NAACP LEGAL DEFENSE &

CHRISTINA SWARNS EDUCATIONAL FUND, INC.

JIN HEE LEE 1444 I Street NW

LILIANA ZARAGOZA Washington, DC 20005

NAACP LEGAL DEFENSE & 202-682-1300

EDUCATIONAL FUND, INC. jschnapper@naacpldf.org

40 Rector Street, 5th Floor

New York, NY 10006

R. REEVES ANDERSON

HOLLY E. STERRETT

ARNOLD & PORTER LLP

370 Seventeenth Street

Suite 4400

Denver, CO 80202

Counsel for the National

Association of Criminal

Defense Lawyers

June 30, 2016

BARBARA BERGMAN

Co-Chair, Amicus

Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

1117 Stanford, N.E.

Albuquerque, NM 87106

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

* Counsel of Record