• Mario Nicolais

Supreme Court reviews pulling back the jury curtain for racial bias

The Sixth Amendment to the U.S. Constitution guarantees “an impartial jury” to all defendants. But what seems to be a clear and concise rule becomes much less so in practice. Most dramatically, whatever is said among deliberating jurors cannot be used to prove bias. No matter how far from impartial such statements may remove a jury.


That is the case of Miguel Angel Pena-Rodriguez recently heard by the U.S. Supreme Court. Charged with sexual assault against two teenage girls, the jury convicted him 12-0. The unanimous opinion of his peers found him guilty, just as the system is supposed to work.


But then one juror relayed the rationale employed by another. Specifically, the juror said he thought the Mexican immigrant Pena-Rodriguez was guilty “because he’s Mexican and Mexican men take whatever they want” due to their “sense of entitlement to do what they wish with women.” Worse still, the juror was a former police officer who voiced his opinion that “9 times out of 10,” Mexican men were guilty of being aggressive toward women and young girls.”


That should be frightening to anyone involved in criminal justice.


Before hearing any other evidence, that juror believed 9 out of 10 people must be guilty of sexual assault based solely on Mexican heritage. That is anything but impartial. Furthermore, given the juror’s background as a police officer, he almost certainly held more influence on his fellow jurors. It is common knowledge in the legal field that juries generally hold the opinions of law enforcement in high regard. Consequently, he was in a position to sway other jurors with his warped perspective.


The kicker comes in the form of Colorado Rule of Evidence 606(b). That rule bars jurors from testifying “as to any matter or statement occurring during the course of the jury’s deliberations” when conducting an “inquiry into the validity of a verdict.” Consequently, courts are deaf to racist remarks eviscerating the Sixth Amendment when it occurs within the confines of the jury room.


Now, there are certainly good reasons for the rule protecting jury deliberations. It protects jurors from harassment and promotes the free exchange of ideas among jurors outside the spotlight of the courtroom. Like the Wizard of Oz, it creates a curtain behind which the magic of the American judicial system is supposed to take place.


But as the Wizard of Oz taught us, sometimes when you pull back the curtain, things aren’t what they appear from the outside. And at least some of the Supreme Court justices listening to Pena-Rodriguez’s plight seemed empathetic and exasperated. However, others worried that peeking just-this-once would open a flood gate to other discrimination claims. It seems very possible that the Court will split 4-4 (given the current vacancy), upholding the verdict.


That outcome would further enhance the relevance of a case I wrote about earlier this year. In Foster v. Chatman, prosecutors systematically challenged potential jurors of African-American descent from sitting on a jury of a black defendant. It is not hard to imagine the prosecutors in that case would salivate over a former police officer harboring strong racial stereotypes.


These cases highlight the no-win scenarios minority advocates bristle over. While blind jury selection is undermined by systemic racial divisions, the courts are deaf to actual racial bias behind the jury’s closed doors. Wrongs cannot be righted at either the beginning or the end.


Pena-Rodriguez may be guilty of the horrendous crimes. But he should be convicted based on the evidence of those crimes, not the lineage of his ancestors. Anything else is a disservice to all the rest of us.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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