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

No. 15-606 OFFICE OF THE CLERK

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 AMICT CURIAE

PROFESSORS OF LAW

IN SUPPORT OF PETITIONER

ee —

LISA KERN GRIFFIN MARC A. GOLDMAN

DUKE UNIVERSITY Counsel of Record

SCHOOL OF LAW MASSEY & GAIL

210 Science Drive 1325 G Street, NW

Durham, NC 27708 Washington, DC 20005

(919) 613-7112 (202) 652-4511

grifin@law.duke.edu mgoldman@masseygail.com

Dated: June 30, 2016

[| es 1 y

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............ccccsscscssoeseesseerenes iii

INTEREST OF AMICT CURIAE..............0.000cc0cceeeeeeees 1

SUMMARY OF ARGUMENT ..................:ccceeeceeeeeeeeeees 3

I. THE PARAMOUNT

CONSTITUTIONAL CONCERN

WITH RACIAL OR ETHNIC

DISCRIMINATION AGAINST

CRIMINAL DEFENDANTS

SHOULD OVERRIDE THE

EVIDENTIARY BAR TO

IMPEACHMENT BY JUROR

TEs eetetticensatnncesadsnsstecescsncenseons 6

Il. ALTERNATE MECHANISMS

FOR UNCOVERING TAINTED

DELIBERATIONS ARE

INSUFFICIENT SUBSTITUTES

FOR JUROR TESTIMONY

ABOUT RACIAL OR ETHNIC

iil. A NARROW EXCEPTION FOR

CONSIDERATION OF JUROR

TESTIMONY ABOUT

DISCRIMINATORY

STATEMENTS AS TO A

DEFENDANT'S GUILT OR

INNOCENCE IS WORKABLE

AND CONSONANT WITH

EXISTING EXCEPTIONS TO

IV THE POLICIES THAT RULE

606(b) SERVES ARE

FURTHERED BY ALLOWING

JUROR TESTIMONY IN CASES

OF ALLEGED RACIAL OR

ll

TABLE OF AUTHORITIES

CASES:

Aldridge v. United States,

ES ce ee ee Le 8

Batson v. Kentucky,

476 U.S. 79 (1986) ...... pe RS PRL Eas Ces ee 6, 15, 24

Chambers v. Mississippi,

2 celaeeiadiadies 9

Chapman v. California,

ES ARIE mR he oe No 20

Clark v. United States,

ee SAS REN RCD eee RTD ee 9

Commonwealth v. Laguer,

571 N.E.2d 371 (Mass. 1991)................... 13, 16

Davis v. Alaska,

ee Re Ss HI IIE neccivessecccscevcdosstnccconscaces 9

Fields v. Woodford,

809 F.3d 1095 (CA9 2002) ................cc:scceeeeeeee 21

Foster v. Chatman,

LR A a Ee A 6, 15

Georgia v. McCollum,

ne ics danddavadbeeniaenanel 6, 7, 24

ill

Gomez v. United States,

i. ccnnnanepsatssaiienninniiil 8

Gray v. Mississippi,

ee ID oiictpudincclisvedsetactuabeduncees ..8, 19

Green v. Georgia,

BE I ccccivundsomvesstaveccboosssvcetennscones 9

Haugh v. Jones & Laughlin Steel Corp.,

BE Fe Oe CREE BED cccccccccccccecvcesccscccccceses 18

Holland v. Illinois,

aaa ec otc piatinioael 6

Holmes v. South Carolina,

ARIE ee Sel ae S)

In re Stankewitz,

rn Cs cudemecnsusseeenesaonenen 16

Kittle v. United States,

ee ee I : MRED vcdevdcccocrcovccesseesses 7,13

McDonald v. Pless,

I iia eiaialnael 9

McDonough Power Equip., Inc. v. Greenwood,

I oc casasinees 12

Miller-El v. Dretke,

ED denieumeseduamonenad 6

Parker v. Gladden,

I lc senhpiabe’ 8

1V

People v. Ali,

No. D058357, 2013 WL 452901

Ss Ts I PUD Wa, SI ccc cccnccvedbdccnmmnsaces 17

People v. Holmes,

Fe ee I CI, NFO vvcniccccncccncecccosesincsens 16

People v. Steele,

I, MII dccincicnrcsnccotnesstcecguisanmaniaes 16

Perry v. Batley,

tetas onleinslenaicentanimnnsinsii 15

Powell v. Allstate Ins. Co.,

652 So.2d 354 (Fla. 1995) .............ccccesceeesseees 25

Powers v. Ohio,

UI el 6

Press-Enter. Co. v. Superior Court,

RE ae 5

Rock v. Arkansas,

EEE ee eR NE ie 10

Rose v. Mitchell,

I 6, 8, 24

Shillcutt v. Gagnon,

827 F.2d 1155 (CA7 1987).................. 15, 20, 23

Smith v. Brewster,

444 F Supp. 482 (S.D. Iowa 1978)................. 15

Snyder v. Louisiana,

ET RR I 6

State v. Hidanovic,

747 N.W.2d 463 (N.D. 2008) ................00..000ee 20

State v. Levitt,

I PE, PIII ois cccscnsicucdcocansoneosmeens 21

State v. Phillips,

927 A.2d 931 (Conn. App. 2007) .................... 19

State v. Santiago,

Fe es I nicestccidntennedcccessdindcsnees 19

Strauder v. West Virginia,

EE EE A eT TT 8

Tanner v. United States,

RSI ra oe passim

Tobias v. Smith,

468 F Supp. 1287 (W.D.N.Y. 1979)............... 18

United States v. Benally,

546 F.3d 1230 (CA10 2008),

cert. denied, 558 U.S. 1051 (2009)........... 11, 24

United States v. Booker,

460 F.24 1310 (CAT 19793)............................. 19

United States v. Brass/er,

ee ee TD oi 16

vi

United States v. Burr,

25 F. Cas. 49 (C.C.D. Va. 1807) ....................... 8

United States v. Henley,

238 F.3d 1111 (CAS 2001) ..........................0.. 23

United States v. Reid,

EER EN SO aR US TE g

United States v. Shalhout,

507 Fed. Appx. 201 (CA3 2012).......... 15, 16, 20

United States v. Thomas,

116 F.3d 606 (CA2 1997) ...................0.0... 17-18

United States v. Villar,

586 F.3d 76 (CA1 2009)............00..0000.. 13, 16, 20

United States v. Williams-Davis,

90 F.3d 480 (CADC 1906).................ccccccccccees 20

Warger v. Shauers,

ee iy Te MI stein nhcnceeseccosesatin passim

Wilkerson v. Texas,

Or 25

Wright v. United States,

559 F. Supp. 1139 (E.D.N.Y. 1983)............ 3, 15

Vill

CONSTITUTIONAL PROVISIONS:

Se I IS TE scr ccccdneuieneenmmesmeseacutiessonsh passim

STATUTES:

Se I I Oe Fe I ccc revcscxsosnnrssesanieniogansteusssouns 16

RULES:

BE, Be. CRI. FD. BD vv ceccccevscecsscccescccessccesees 17

I a semubepnneinl passim

Colo. R. Prof] Conduct 3.5(c)(S)....................00...secce0. 17

OTHER AUTHORITIES:

Barbara Allen Babcock, Voir Dire: Preserving

“Its Wonderful Power,” 27 Stan. L. Rev.

a Se 2 Ie A 12

Maria Krysan, Privacy and the Expression of

White Racial Attitudes: A Comparison

Across Three Contexts, 62 Pub. Opinion

ER RD SR EROS, SPR 12

27 Charles Alan Wright & Victor James Gold,

Federal Practice and Procedure § 6074

eR ARS TEN se CER. Reape: SNES 7, 8, 9, 10

vill

Neil Vidmar & Valerie P. Hans, American

Juries: The Verdict (2007).................cccccceeeeees 12

Jessica L. West, 12 Racist Men: Post- Verdict

Evidence of Juror Bias, 27 Harv. J.

Racial & Ethnic Just. 165 (2011) ............ 12, 13

Racist Juror Misconduct During

Deliberations, 101 Harv. L. Rev. 1595

UTI ssscionaisisccinetetaictssidaheactinisdsienteamcieaeniaaamniaat saa anae 13

ix

INTEREST OF AMICT CURIAE

Amici are law professors who specialize in

evidence and criminal law and procedure.' As legal

academics, amici have an interest in the consistent

and correct application of the rules of evidence, and

in reconciling those rules with the constitutional

right to a fair trial.

The brief is joined by the following professors:

Barbara Allen Babcock, Judge John Crown

Professor of Law, Emerita, Stanford Law School.

Jeffrey Bellin, Cabell Research Professor of

Law, William and Mary Law School.

Darryl K. Brown, O.M. Vicars Professor of

Law, University of Virginia School of Law.

Robert P Burns, William W. Gurley Memorial

Professor of Law, Northwestern Pritzker School of

Law

! Pursuant to Rule 37.6, amici affirma that no counsel or

party authored this brief in whole or part. Duke University

School of Law supports faculty research and scholarship, and

that financial support contributed to the costs of preparing this

brief. Otherwise, no person or entity apart from the amici and

their counsel made any monetary contribution intended to fund

the preparation or submission of this brief. Duke University is

not a signatory to the brief, and the views expressed here are

solely those of the amici. The parties’ letters of consent to the

filing of this brief have been filed with the Clerk’s Office.

Counsel of record received timely notice of the intent to file thie

brief.

James E. Coleman, Jr., John S. Bradway

Professor of the Practice of Law, Duke University

School of Law.

Lisa Kern Griffin, Professor of Law, Duke

University School of Law.

Robert P. Mosteller, J. Dickson Phillips

Distinguished Professor of Law, UNC School of Law.

Deborah Tuerkheimer, Professor of Law,

Northwestern Pritzker School of Law.

Neil Vidmar, Russell M. Robinson II Professor

of Law and Professor of Psychology, Duke University

School of Law.

Jessica L. West, Associate Professor of Law,

Vermont Law School.

SUMMARY OF ARGUMENT

The rules prohibiting juror impeachment

should give way to Sixth Amendment concerns when

a jury member comes forward with evidence of

racially or ethnically biased statements made during

deliberations about a criminal defendant’s guilt.

First, the fundamental unfairness of a guilty

verdict tainted by racial prejudice raises particularly

acute constitutional concerns. An _ essential

component of the right to a fair criminal trial is an

impartial jury, and racial or ethnic bias poses a

unique threat to that impartiality. See Wright v.

United States, 559 F Supp. 1139, 1151 (E.D.N.Y.

1983) (“If a criminal defendant could show that the

jury was racially prejudiced, such evidence could not

be ignored without trampling the Sixth

Amendment's guarantee to a fair trial and an

impartial jury.”). Indeed, racial or ethnic prejudice

against a defendant abridges the fair trial right

almost “by definition.” Warger v. Shauers, 136 S. Ct.

521, 529 n.3 (2014).

Second, juror testimony is likely to be the only

available evidence to establish such prejudice. The

“usual safeguards” this Court has pointed to in prior

cases about juror bias are not “sufficient to protect

the integrity of the process” in cases of racial or

ethnic bias during deliberations. /d Both the

substance and the structure of the juror statements

here distinguish the issues from the considerations

before the Court in earlier cases concerning

exceptions to Rule 606(b). Tanner v. United States,

483 U.S. 107, 127 (1987), addressed juror

competency rather than juror prejudice. The

impairment in 7anner (intoxication) was also of a

type that could be exposed through means other

than reliance on juror testimony. Intoxication may

be observed in the courtroom and is also a potential

subject of testimony by non-jurors. Similarly, the

nature of the bias at issue in Warger—bias induced

by a juror’s “views about negligence liability for car

crashes” that resulted from a prior accident

involving her daughter, 135 S. Ct. at 629—differs

from racial or ethnic prejudice against a defendant.

It is significantly more likely to be discernable from

external evidence or revealed during voir dire.

Third, the administrability concerns that arise

with general claims of juror dishonesty or partiality

are not present in the narrower and clearer case of

expressly racist statements by deliberating jurors.

The experience of jurisdictions that have admitted

juror testimony on the limited question of racial or

ethnic bias suggests that doing so will not

meaningfully burden the courts or unduly infringe

on juror privacy. These courts have continued to

preclude impeachment of jurors unless there is

objective verification that they made overtly racist

statements focused on a criminal defendant’s guilt or

innocence.

Nor would any new procedural mechanisms be

required to apply a constitutional exception to Rule

606(b). Pursuant to the enumerated exceptions to

the rule, courts already consider juror testimony on

“extraneous prejudicial information” such as media

accounts and “outside influences” such as threats

and bribes. And the factual question they would be

considering here is an objective one: whether a racist

comment about the defendant was uttered by a

deliberating juror. Courts need not even inquire into

the statement’s effect on internal mental processes

in order to address the issue of a remedy. The core

concerns about protecting deliberations that gave

rise to Rule 606(b) thus are not implicated.

Finally, the policy justifications for Rule

606(b) are not served by applying it in this context.

Permitting verdicts tainted by racial or ethnic bias to

remain in place in the interest of “finality” does

profound harm to the criminal justice system. When

racial or ethnic prejudice comes to light but

evidentiary rules bar its consideration, public

confidence in the “integrity” of adjudication declines.

Leaving potentially unconstitutional verdicts

entirely “beyond effective reach” only promotes

“irregularity and injustice.” Fed. R. Evid. 606(b),

Advisory Committee Note to subdivision (b).

When there is direct evidence that a

deliberating juror expressed clear racial or ethnic

bias, there is also a serious constitutional question

about a fair and impartial jury. Courts should be

permitted to consider juror testimony when faced

with that question.

ARGUMENT

I. THE PARAMOUNT CONSTITUTIONAL

CONCERN WITH RACIAL OR ETHNIC

DISCRIMINATION AGAINST CRIMINAL

DEFENDANTS SHOULD OVERRIDE THE

EVIDENTIARY BAR TO IMPEACHMENT

BY JUROR TESTIMONY.

This case arises at the intersection of the

Sixth Amendment fair trial guarantee and the

difficult and lasting problem of racial prejudice

among jurors. As this Court has previously stated,

“no right ranks higher than the right of the accused

to a fair trial,” Press-Enter. Co. v. Superior Court,

464 U.S. 501, 508 (1984), and “the inestimable

privilege of trial by jury” underlies “the whole

administration of criminal justice,” Holland v.

Illinois, 493 U.S. 474, 511 (1990) (Stevens, J.,

diseenting).

Racial or ethnic bias is an “especially

pernicious” form of prejudice in the criminal justice

process to which this Court has long applied special

scrutiny. Rose v. Mitchell, 443 U.S. 545, 555 (1979);

see also Georgia v. McCollum, 506 U.S. 42, 58 (1992)

(a defendant has “a right to an impartial jury that

can view him without racial animus, which so long

has distorted our system of criminal justice”);

Holland, 493 U.S. at 6511 (1990) (Stevens, J.,

dissenting) (noting the Court’s “unceasing efforts to

eradicate racial prejudice from our criminal justice

system”).

The Court has been vigilant, for example,

about state-sponsored prejudice when prosecutors

exercise peremptory challenges of jurors for racially

discriminatory reasons. See Batson v. Kentucky, 476

U.S. 79, 88 (1986). As the Court recently confirmed,

“striking even a single prospective juror for a

discriminatory purpose” violates the Constitution.

Foster v. Chatman, 2016 WL 2945233 at *2 (U.S.

May 23, 2016) (quoting Snyder v. Louisiana, 552

U.S. 472, 478 (2008)). Racial bias in the selection of

jurors jeopardizes not only the fairness of the

defendant's trial but the “very integrity of the

courts.” Miller-E] v. Dretke, 545 U.S. 231, 238

(2005). It damages “both the fact and the perception”

of the jury’s role as a “vital check against wrongful

exercise of power by the State.” Powers v. Ohio, 499

U.S. 400, 411 (1991).

The Court should be no less vigilant when

allegations arise that express racial or ethnic

prejudice has tainted a jury’s deliberations. Cf

McCollum, 505 U.S. at 62 (Thomas, J., concurring)

(cautioning against “exalting the rights of citizens to

sit on juries over the rights of the criminal

defendant, even though it is the defendant, not the

jurors, who faces imprisonment or even death”).

Indeed, “the constitutional interests of the affected

party are at their strongest when a jury employs

racial bias in reaching its verdict.” 27 Charles Alan

Wright & Victor James Gold, Federal Practice and

Procedure § 6074, at 513 (2d ed. 2007); see also

Kittle v. United States, 65 A.3d 1144, 1165 (D.C.

2013) (noting the “insidiousness of racial or ethnic

bias”).

In petitioner’s case—which involves sexual

assault and harassment charges—a seated juror

argued during deliberations that “Mexican men take

whatever they want,” Pet. App. 4a, that “Mexican

men had a bravado that caused them to believe they

could do whatever they wanted with women,” :d.,

that “Mexican men [are] physically controlling of

women because they have a sense of entitlement,”

id, and that the jurors experience in law

enforcement suggested that “nine times out of ten

Mexican men were guilty of being aggressive toward

women and young girls,” zd.

When prejudiced comments with this sort of

racist substance taint a verdict, that defect in the

proceedings requires closer scrutiny than other types

of juror misconduct or bias. In the Warger case, for

example, a juror’s personal experience may have

predisposed her to find for the defendant in a civil

case involving a car accident. See 135 S. Ct. at 524-

25. The Court found that the juror’s partiality was

“internal” to deliberations and covered by Rule

606(b). Jd. at 530. But Warger did not involve the

7

sort of bigotry against a criminal defendant that the

facts of the present case raise. Partiality in the form

of explicit racial or ethnic prejudice “undermines the

jury’s ability to perform its function as a buffer

against governmental oppression and, in fact,

converts the jury itself into an instrument of

oppression.” Wright & Gold § 6074, at 513. Racially

motivated factfinders pose perhaps the greatest risk

to a fair trial, and they should not find protection

behind the no-impeachment rule. See, e.g, Strauder

v. West Virginia, 100 U.S. 303, 309 (1879) (finding

that prejudices against “particular classes” that

“sway the judgment of jurors” “deny to persons of

those classes the full enjoyment of that protection

which others enjoy”).

Bias, moreover, raises particularly significant

constitutional issues in criminal cases, which is a

context that Warger also did not present. See Jose,

443 U.S. at 563. The guarantee of an impartial jury

“goes to the very integrity of the legal system.” Gray

v. Mississippi, 481 U.S. 648, 668 (1987).

Fundamental fairness depends on factfinders who

are free from any “predisposition about the

defendant's culpability.” Gomez v. United States,

490 U.S. 858, 873 (1989). Jurors are not “impartial!”

in the “constitutional sense of that term” if they have

“strong and deep impressions” that “close the mind

against the testimony that may be offered in

opposition to them.” United States v. Burr, 25 F

Cas. 49, 51 (C.C.D. Va. 1807); see also Parker v.

Gladden, 385 U.S. 363, 366 (1966) (per curiam)

(“[P]Jetitioner was entitled to be tried by 12, not 9 or

even 10, impartial and wunprejudiced jurors”);

Aldridge v. United States, 283 U.S. 308, 313 (1931)

(stating that a “gross injustice” is perpetrated if a

juror “entertain[s] a prejudice which would preclude

his rendering a fair verdict.”).

In construing the common law precursor to

606(b), the Court has held that the no-impeachment

rule must be sufficiently pliable to accommodate the

interests of justice. There should be some measure of

flexibility in the rule, the Court has recognized,

because cases might arise in which its rigid

application violates “the plainest principles of

justice.” McDonald v. Pless, 238 U.S. 264, 269 (1915)

(quoting United States v. Reid, 53 U.S. 361, 366

(1851)); see also Warger, 135 S. Ct. at 529 n.3; Clark

v. United States, 289 U.S. 1, 16 (1933). As the Court

in Warger alsc noted, “[t]here may be cases of juror

bias so extreme” that the no-impeachment rule must

yield to constitutional concerns. 135 S. Ct. at 529

n.3.

For Rule 606(b) to accommodate juror

testimony on the narrow question of racist comments

during deliberations would also be consonant with

the Court’s broader jurisprudence about conflicts

between fair trial rights and exclusionary rules.

When evidentiary bars “insulate from discovery the

violation of constitutional rights,” they may

“themselves violate those rights.” Wright & Gold

§ 6074, at 513. Accordingly, the Court has also held

that the rules of evidence must give way if they

preclude “the meaningful opportunity to present a

complete defense.” Holmes v. South Carolina, 547

U.S. 319, 324, 331 (2006); see also Green v. Georgia,

442 U.S. 95, 97 (1979) (“In these unique

circumstances, ‘the hearsay rule may not be applied

mechanistically to defeat the ends of justice.)

(quoting Chambers v. Mississippi, 410 U.S. 284, 302

(1973)); Davis v. Alaska, 415 U.S. 308, 320 (1974)

(“The State’s policy interest in protecting the

9

confidentiality of a juvenile offender's record cannot

require yielding of so vital a constitutional right as

the effective cross-examination for bias of an adverse

witness.”).

When the Court balances competing interests

to determine whether a defendant’s fair trial rights

should override an evidentiary exclusion, the central

question is whether “the interests served by a rule

justify the limitation imposed on a defendant's

constitutional right.” Rock v. Arkansas, 483 U.S. 44,

56 (1987). The policy interests behind enforcement of

Rule 606(b) are simply “at their weakest” in cases of

jury bias involving racial prejudice. See Wright &

Gold § 6074, at 513. Because racial or ethnic animus

by jurors poses a particular danger to fair trial

rights, the Rule 606(b) bar should not preclude

consideration of juror testimony about the narrow

category of statements expressly revealing such

prejudice during deliberations.

Il. ALTERNATE MECHANISMS FOR

UNCOVERING TAINTED DELIBERATIONS

ARE INSUFFICIENT SUBSTITUTES FOR

JUROR TESTIMONY ABOUT RACIAL OR

ETHNIC BIAS.

An exception to the rule against juror

impeachment is particularly important with respect

to racial or ethnic bias because it is unlikely

otherwise to be ferreted out. The Vanner Court

envisioned safety valves through which alleged

biases would be revealed and addressed despite the

Rule 606(b) bar: mechanisms like external

observation and the voir dire process, as well as non-

juror or pre-verdict evidence of misconduct. 483 U.S.

at 127. The Colorado Supreme Court in this case,

and other courts that have followed similar

10

reasoning, relied on these safeguards to conclude

that the Tanner protections are “also available to

expose racial biases.” United States v. Benally, 546

F.3d 1230, 1240 (CA10 2008), cert. denied, 558 U.S.

1051 (2009).

Yet visual observation by the judge, counsel,

or court personnel can do little to bring racial or

ethnic bias to light. Incompetence and prejudice

reveal themselves differently. For example, non-

jurors are unlikely witnesses to prejudicial

statements about a defendant, even though they can

often testify to misconduct like intoxication. Racial

animus also lies especially well hidden. The bias at

issue in Warger—a jurors sympathy with a

defendant who had caused a car accident—might

have been established through objective evidence

about her personal history, or through statements

that the juror made outside of the jury room. But

evidence beyond the jury deliberations is unlikely to

reveal a juror’s racially discriminatory reaction to

the evidence at trial. Although there could be

indications of animus such as membership in certain

groups, complaints involving other racial

discrimination, or past behavior towards individuals

of other races or ethnicities, those external signals

would not necessarily connect to invidious

discrimination against a criminal defendant.

Furthermore, the voir dire process itself will

rarely uncover racial or ethnic prejudice in jurors.

Voir dire questioning might expose incentives like

the Warger juror’s potential identification with the

defendant because of her daughter’s experience.

Nothing inhibited the Warger juror from freely

expressing her views about liability for car accidents

during voir dire. When it comes to racial or ethnic

bias, however, a juror can hardly be expected to

11

acknowledge that he harbors some prejudice. A juror

“may have an interest in concealing his own bias” or

may even be “unaware of it.” See McDonough Power

Equip., Inc. v. Greenwood, 464 U.S. 548, 558 (1984)

(Brennan, J., concurring); see also Neil Vidmar &

Valerie P. Hans, American Juries: The Verdict 91

(2007); Maria Krysan, Privacy and the Expression of

White Racial Attitudes: A Comparison Across Three

Contexts, 62 Pub. Opinion Q. 506, 507-09 (1998)

(describing experiments on social pressure to

conform to norms against prejudice). “Some jurors

will intentionally deceive the courts, perhaps

because they are ashamed to admit attitudes that

are socially unfashionable or even because they

might welcome the chance to seek retaliation against

a litigant.” Barbara Allen Babcock, Voir Dire:

Preserving “Its Wonderful Power’, 27 Stan. L. Rev.

545, 554 (1975). And “the more prejudiced or bigoted

the jurors, the less they can be expected to confess

forthrightly and candidly their state of mind in open

court.” /d.; see also Jessica L. West, 12 Racist Men:

Post-Verdict Evidence of Juror Bias, 27 Harv. J.

Racial & Ethnic Just. 165, 201 (2011) (“Because

jurors may have difficulty recognizing or admitting

their biases, the potential for misrepresentations of

bias may be even greater than it is for other types of

juror misrepresentations.”).

During the voir dire process in the present

case, for example, prospective jurors were repeatedly

asked routine questions about whether they could be

“fair” and whether they had feelings “for or against”

petitioner. Pet. App. 3a. No juror acknowledged any

racial or ethnic bias. /d. Two of the seated jurors

have since alleged that in the intimacy of the jury

room, away from authority figures and public

scrutiny in the courtroom, a juror made repeated

12

statements to the effect that the jury should convict

the defendant “because he’s Mexican.” Pet. App. 4a.

A juror’s overt bias was clearly intertwined with

consideration of the defendar*’s culpability. But the

sole mechanism for addressing this “grave” instance

of juror prejudice was consideration of statements

made during deliberations and brought to light by a

juror after the verdict. United States v. Villar, 586

F.3d 76, 87 (CAl1 2009).

Although courts applying Rule 606(b) to

potential racial or ethnic bias point to the possibility

that jurors can express concerns about deliberations

prior to the verdict, that rarely occurs. See Kittle v.

United States, 65 A.3d at 1155; Commonwealth v.

Laguer, 571 N.E.2d 371, 376 (Mass. 1991). As in this

case, jurors typically come forward only after a

verdict is rendered. The Court’s recent decision in

Warger has also foreclosed post-trial evidence that a

juror concealed biases during voir dire. 135 S. Ct.

521. Cf West, supra, at 202 (advocating a 606(b)

exception for cases in which juror statements during

deliberations reveal a discrete misrepresentation

about bias during voir dire).

Accordingly, post-verdict juror testimony is

likely to be “the only available evidence to establish

racist juror misconduct.” Aacist Juror Misconduct

During Deliberations, 101 Harv. L. Rev. 1595, 1596

(1988). And the surface protections that the Court

referenced in Tanner will not suffice to protect Sixth

Amendment rights. See West, supra, at 187

(concluding that the Tanner protections against

juror bias and misconduct fail when it comes to

racial bias in the deliberative process).

13

Ill. A NARROW EXCEPTION FOR

CONSIDERATION OF JUROR TESTIMONY

ABOUT DISCRIMINATORY STATEMENTS

AS TO A DEFENDANTS GUILT OR

INNOCENCE IS WORKABLE AND

CONSONANT WITH EXISTING

EXCEPTIONS TO 606(b).

A narrow constitutional exception to consider

juror testimony on racial or ethnic bias will not

meaningfully increase the administrative burden on

the courts or lead to undue harassment of jurors. In

jurisdictions where it has been permitted, the

potential ability to impeach jurors on these issues

has not opened the door to juror testimony beyond a

small subset of cases involving overt discrimination

directed at the defendant. It has not required courts

to evaluate mental processes of jurors in the context

of deliberations. Nor is there any indication that the

few claims of this nature have increased post-verdict

juror harassment.

In the many courts that allow’ such

impeachment, there has been no “barrage of

postverdict scrutiny of juror conduct.” Janner, 483

U.S. at 120-21. In the nineteen federal and state

jurisdictions that are already hospitable to juror

impeachment on the question of racial or ethnic bias,

decades of appellate case law reflect only thirty

claims by defendants who sought to introduce juror

testimony concerning racial or ethnic bias in

deliberations. Experience thus suggests that these

claims will arise infrequently and that courts can

ably sort and evaluate them when they do.

Although a constitutional exception to Rule

606(b) will require more courts to engage in line-

drawing, statements concerning explicit racial or

14

ethnic bias in the consideration of the defendant's

guilt can be readily identified. Even in factual

situations where prejudice is much harder to

disentangle from the surrounding facts, such as

prosecutorial bias in the exercise of peremptory

challenges, the Court has stated that it cannot be

“blind” to “the circumstances that bear upon the

issue of racial animosity.” Foster, 2016 WL 2946233

at *18. Yet in contrast to nuanced inquiries such as

Batson challenges, an exception for racist

statements during deliberations is circumscribed by

inherent limiting principles. It extends only to

express racial or ethnic animus pertaining to the

defendant and addressed to the substance of the

case.

The courts that have recognized a

constitutional override in cases of alleged racial

prejudice only hear testimony when the statements

directly relate to the Sixth Amendment concern by

implicating objective facts about the case. The Sixth

Amendment issue arises when the juror’s statements

are linked with consideration of the defendant’s guilt

or innocence and “received and utilized by the jury in

an evidentiary context.” Smith v. Brewster, 444 F.

Supp. 482, 490 (S.D. Iowa 1978). Accordingly,

comments made by jurors to non-jurors, Wright, 559

F Supp. at 1129, statements to non-deliberating

jurors, United States v. Shalhout, 507 Fed. Appx.

201, 207 (CA3 2012), and offhand remarks after a

verdict had already been reached, SAilicutt v.

Gagnon, 827 F.2d 1155, 1158-59 (CA7 1987), have all

been held inadmissible.

The statements in question must also be

objectively verifiable and subject to corroboration.

See Perry v. Bailey, 12 Kan. 539, 545 (1874) (“If one

[juror] affirms misconduct, the remaining eleven can

15

deny.”). The California Evidence Code, for example,

permits juror testimony about statements made

during deliberations, but only with regard to

statements that give rise to a presumption of

misconduct just because they were uttered. See Cal.

Evid. Code § 1150(a); Jn re Stankewitz, 40 Cal. 3d

391, 398 (1985). The California courts have rejected

speculative claims or subjective impressions of

prejudice. /n re Stankewitz, 40 Cal. 3d at 398.

In many other jurisdictions that permit juror

impeachment to address racial prejudice, courts

have similarly declined to review statements of bias

that do not relate to “specific readily identifiable

facts or actions as opposed to evidence of subjective

mental attitudes on the part of a juror.” Laguer, 571

N.E.2d at 376; see also United States v. Brassler,

651 F.2d 600, 603 (CA8 1981); People v. Holmes, 372

N.E.2d 656, 659 (Ill. 1978). A_ constitutional

exception to Rule 606(b) thus would only render

testimony about racist statements admissible when

that testimony can be proven or disproven. The

objective verifiability of the evidence alleviates any

concern with juror fraud or the possibility that a

disgruntled juror could invent misconduct.

Furthermore, only overtly racist statements

directed at the evidence—not stray remarks, insults

exchanged between jurors, or even indications of

general bigotry unrelated to the defendant—would

render statements during deliberations admissible.

See Villar, 586 F.3d at 87; Shalhout, 507 Fed. Appx.

at 206-07 Despite the permissive approach to juror

impeachment in the California rules, for example,

courts there have held that the statements in

question must constitute more than mere

suggestions of racist thinking. See People v. Steele, 4

P.3d 225, 248 (Cal. 2002). Accordingly, courts have

16

rejected testimony concerning general references to

racial stereotypes during deliberations, as well as

alleged statements equally applicable to gang

membership or racial status. See People v. Ali, 2013

WL 462901, at *19 (Cal. Ct. App. Feb. 7, 2013).

Nor would broader application of the

constitutional exception significantly alter jurors’

post-trial interactions with counsel and

investigators. In states that recognize the exception,

as in states that do not, juror contact rules and

ethical canons already discourage parties from

seeking juror statements after trial. The Colorado

Code of Professional Conduct, for example, prohibits

post-discharge communications with jurors that

involve “misrepresentation, coercion, duress or

harassment.” Colo. R. Profl Conduct 3.5(c)(3). In

many jurisdictions, jurors also receive instructions

that they need not respond to any post-trial inquiries

from counsel.

The present case arose because two jurors

voluntarily reported their misgivings about the

deliberations. A strict construction of Rule 606(b) is

not necessary to protect jurors post-trial but will

have the effect of frustrating jurors who seek to

expose the possibility of a tainted verdict.

Moreover, permitting juror testimony on bias

expressed during deliberations would not require

any mew procedural protocols. The screening

mechanisms courts currently employ are the same as

those used when allegations of external influences

on jury deliberations arise pursuant to Rule

606(b)(2). Judges also screen claims that there is

“good cause” to remove deliberating jurors under

Rule 23(b). Fed. R. Crim. Pro. 23(b)(2)(B). See, e.g.,

United States v. Thomas, 116 F.3d 606, 620 (CA2

17

1997). Granting review of evidence of racial or ethnic

bias thus will not upset the existing balance between

exposing juror misconduct and shoring up the

finality and legitimacy of verdicts. As with

allegations of racially-tainted remarks, claims of

external influence are subject to corroboration and

refutation. The only initial question is whether the

information was received or the influence occurred.

Impact on the verdict is a separate inquiry.

Faced, for example, with an allegation of

bribery or receipt of extraneous information, a court

first allows testimony to determine whether the act

occurred. See, e.g., Haugh v. Jones & Laughlin Stee!

Corp., 949 F.2d 914, 917 (CA7 1991) (stating that the

proper procedure is to establish “whether the

communication was made and what it contained”

“without asking the jurors anything further and

emphatically without asking them what role the

communication played in their thoughts or

discussion”). The same basic objective analysis

applies when allegations arise that jurors made

racially prejudiced statements. Courts need only

determine “wheil.er the communication was made

and what it contained.” /d. They make no subjective

inquiry into the impact of the communication on the

deliberations.

Therefore, broader recognition of a

constitutional exception would encompass only the

objectively verifiable statements of a juror and would

not require examination of the internal mental

processes that Rule 606(b) was drafted to protect.

See Fed. R. Evid. 606(b), Advisory Committee Note

(the rule shields “mental operations and emotional

reactions” during the jury’s deliberative process); see

also Tobias v. Smith, 468 F Supp. 1287, 1290

(W.D.N.Y. 1979) (allowing “objective evidence of

18

matters improperly introduced and considered by

the jury in its verdict”). Courts need not analyze the

jury’s actual reasoning process or engage in an ex

post assessment of whether the jury was affected by

the racist assertions.

This is so in determining a remedy for the

violation as well as its existence. The issue of remedy

is not before the Court. Nor need the Court decide

how lower courts should proceed to consider

testimony about juror statements that reveal

prejudice during deliberations. The only question

presented is whether the evidence of bias lies behind

the 606(b) shield. Indeed, the rule clearly states that

it “does not purport to specify the substantive

grounds for setting aside verdicts for irregularity.”

Fed. R. Evid. 606(b), Advisory Committee Note.

Notably, however, none of the approaches that

courts currently employ at the remedial stage would

require evaluation of the jury’s reasoning process

during deliberations.

Under one approach, many lower courts have

concluded that the Sixth Amendment right is

violated “if even one member of the jury harbors

racial prejudice.” United States v. Booker, 480 F.2d

1310, 1311 (CA7 1973). According to this line of

cases, proven racial bias on the part of a juror

constitutes “a structural defect not subject to

harmless error analysis.” State v. Phillips, 927 A.2d

931, 934-36 (Conn. App. 2007); see also State v.

Santiago, 715 A.2d 1, 20 (Conn. 1998) (“Allegations

of racial bias on the part of a juror are

fundamentally different from other types of juror

misconduct because such conduct is, ipso facto,

prejudicial.”). That conclusion would be consistent

with this Court's holding in Gray that jury

impartiality is “so basic to a fair trial that [its]

19

infraction can never be treated as harmless error.”

481 U.S. at 668 (quoting Chapman v. California, 386

U.S. 18, 23 (1967)).

In other jurisdictions, once the defendant

establishes by a preponderance of the evidence that

the jury was exposed to racially biased statements

that may have infected the judicial process, the

burden shifts to the state to show that there was no

prejudice. Whether or not to grant a new trial turns

on whether there is a “substantial probability that

the alleged racial slur made a difference in the

outcome.” SAilicutt, 827 F.2d at 1159. Courts

consider whether comments about the defendant's

race or ethnicity would have “affected the verdict of a

hypothetical average jury.” State v. Hidanovic, 747

N.W.2d 463, 474 (N.D. 2008). A new trial only occurs

where the “probable effect” of the racially charged

comments was to taint the verdict. See, e.g., Villar,

586 F.3d at 87 (district court determined on remand

that the verdict was not tainted by the racially

discriminatory statements and could stand).

This approach involves the same burden-

shifting framework that operates when there are

allegations of extraneous prejudicial information

under Rule 606(b)(2). See United States v. Williams-

Davis, 90 F.3d 490, 497 (CADC 1996) (questioning

whether there is a reasonable possibility that the

outside intrusion affected the verdict). Courts are

already well-equipped to conduct the analysis, and it

closely resembles the harmless-error review that

occurs in a variety of contexts.

Courts confronting statements of racial bias

may look, for example, to external indications like

the jury's decision to acquit on some charges,

Shalhout, 507 Fed. Appx. at 207, or overwhelming

20

evidence of guilt that reduces concern about racial

bias infecting a verdict, Fields v. Woodford, 309 F.3d

1095, 1006-07 (CA9 2002). The admissibility inquiry

turns only on the objective existence of the racial or

ethnic prejudice and the nature and timing of the

statements in question. But the remedial step can

account for extrinsic indications of the impact on the

verdict. Appellate courts also generally defer to a

trial judge’s factual determinations with regard to

the impact that any racially or ethnically biased

remarks about the defendant had on _ the

deliberations. State v. Levitt, 176 A.2d 465, 468-69

(N.J. 1961).

In this case, the facts demonstrate both that

an individual juror harbored substantial racial bias

and applied that thinking to the determination of

the defendant's guilt or innocence and that the bias

was so frequently and clearly expressed that it

tainted the deliberations as a whole. A juror’s

statements were “directly tied to the determination

of the defendant’s guilt.” Pet. App. 26a (Marquez, J.,

dissenting). On more than one occasion during

deliberations, a juror asserted that the defendant

was guilty “because he’s Mexican.” Pet. App. 4a. The

trial court in fact acknowledged that the juror

testimony exposed prejudice in the deliberations, but

then ruled that the bias could not support a new

trial because of the no-impeachment rule. Tr. 3 (July

20, 2010).

In addition, petitioner's case was close and

dependent on a problematic identification. It turned

in important respects on the credibility of an alibi

witness whose testimony the juror at the center of

this appeal also discredited after (erroneously)

labeling the alibi witness an “illegal.” Pet. App. 4a-

5a; Tr. 14 (Feb. 25, 2010). The jury then indicated

21

initial deadlock on all four charges and ultimately

declined to convict on the most serious charge. The

bias expressed here is thus severe, focused on the

defendant’s ethnicity, clearly connected with

consideration of the facts of the case, and likely to

have had an impact on deliberations.

In future cases in which a defendant proffers

juror impeachment involving blatant expressions of

racism as an argument in favor of guilt, every court

should have access to the relevant testimony. There

is no reason to think that jurors would forfeit

meaningful protections as a result, or that courts

would be incapable of screening for legitimate

constitutional claims.

IV. THE POLICIES THAT RULE 606(b) SERVES

ARE FURTHERED BY ALLOWING JUROR

TESTIMONY IN CASES OF ALLEGED

RACIAL OR ETHNIC BIAS.

Finally, there are expressive harms to

applying the no-impeachment rule in cases in which

the jurors, the court, the defendant, and potentially

the public all know of overt discrimination for which

there is no potential remedy. The Colorado Supreme

Court’s 4-3 decision in this case turned in large part

on the policy implications of recognizing a

constitutional exception to Rule 606(b). See Pet. App.

13a-15a. To be sure, the rule may give effect to

concerns about intrusion into the jury room and

public confidence in the finality of verdicts. But the

scope of juror statements that would be considered

under a narrow constitutional exception to 606(b)

leaves the evidentiary exclusion largely intact. The

category of potential juror testimony is sufficiently

discrete that there is no danger of the exception

swallowing the rule.

22

Furthermore, concern with “chilling” jury

deliberations has no force when express racist

speech is at issue. The jury necessarily enjoys some

space for a “fruitful exchange of ideas and

impressions,” and jurors are “expected to bring

commonly known facts and their experiences to bear

in arriving at their verdict.” SAil/cutt, 827 F.2d at

1159. But there is nothing fruitful about racial

animus. Racial and ethnic prejudice are “unrelated

to any specific issue that a juror in a criminal case

may legitimately be called upon to determine.”

United States v. Henley, 238 F.3d 1111, 1119-20

(CA9 2001).

Occasional consideration of juror statements

under a constitutional exception would not inhibit

juror exchanges. As it is, jurors neither expect nor

enjoy complete privacy surrounding their

deliberations. Rule 606(b) has always permitted non-

juror testimony as well as the use of pre-verdict

statements. The rule further allows post-verdict

testimony about external influences even by jurors,

and it does not address juror revelations outside of

court. “Juror journalism” and public discussion about

jury service is not uncommon in high profile cases.

The Colorado ccurt’s construction of the rule thus

permits wide reporting in the public domain of

racially prejudiced statements by jurors while

precluding any redress in court.

Perhaps the strongest arguments favoring

strict interpretation of Rule 606(b) concern the

validity of jury decision-making itself, but those also

lack force when weighed against the harm of racial

or ethnic bias. Because of the nature of the

statements at issue, there are important

institutional interests that counsel in favor of

permitting inquiry into alleged statements of racial

23

or ethnic prejudice. That inquiry could support not

only the accuracy of criminal verdicts and the

unbiased administration of justice, but also the

integrity and legitimacy of the jury system as a

whole.

It is true that jury discussions might, upon

close scrutiny, fall short of ideals about the

deliberative process. Jury perfection remains an

“untenable goal.” Benally, 546 F.3d at 1240. Racial

prejudice is among the most dangerous of the jury’s

imperfections, however, and when it reveals itself

openly, confronting the available evidence will do

more to preserve the institution of the jury than

ignoring it.

A rigid interpretation of Rule 606(b) in the

face of allegations of racial or ethnic bias affects not

only the fundamental fairness of the trial but the

appearance of fairness in the public eye. Indeed, the

injury of racist fact-finding is not limited to the

criminal defendant deprived of a fair trial. As this

Court has recognized, prejudice causes injury “to the

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

community at large, and to the democratic ideal

reflected in the process of our courts.” Hose, 443 U.S.

at 556. See also McCollum, 505 U.S. at 49 (“One of

the goals of our 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.”);

Batson, 476 U.S. at 87 (stating that the “harm from

discriminatory jury selection extends beyond that

inflicted on the defendant and the excluded juror to

touch the entire community” and “undermine public

confidence in the fairness of our system of justice”).

24

When a decision is based on bigotry, removing

the deliberations from the court’s purview damages

rather than preserves the integrity of the jury. Both

defendants and the public may become aware of

racially biased statements by jurors through post-

trial disclosures, and then look to the court to

determine the constitutional significance of that

bias.

If those “smoking guns’ are ignored, we have

little hope of combating the more subtle forms of

racial discrimination” in the criminal justice system.

Wilkerson v. Texas, 493 U.S. 924, 928 (1989)

(Marshall, J., dissenting). Considering testimony

about openly expressed animus cannot “keep

improper bias from being a silent factor with a

particular juror.” Powell v. Allstate Ins. Co., 652

So.2d 354, 357 (Fla. 1995). It can, however, allow

courts to address cases in which a juror clearly

demonstrates prejudice against a defendant or that

bias is “expressed so as to overtly influence others.”

Id. at 358.

This Court has stated that the jury system

might not survive “efforts to perfect it.” Tanner, 483

U.S. at 120. But neither can it survive efforts to

protect it that shield explicit racial prejudice from

review.

25

CONCLUSION

For the foregoing reasons, the decision of the

Colorado Supreme Court should be reversed.

Respectfully submitted,

MARC A. GOLDMAN

Counsel of Record

MASSEY & GAIL

1325 G Street, NW

Washington, DC 20005

(202) 652-4511

mgoldman@masseygail.com

LISA KERN GRIFFIN

DUKE UNIVERSITY

SCHOOL OF LAW

210 Science Drive

Durham, NC 27708

griffin@law.duke.edu

Dated: June 30, 2016

26