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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0630%3A25

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0630%3A25. Public record. Not legal advice.