One Angry Man: Supreme Court Confronts Racial Bias in Jury Deliberations

Update 3/6/17: Today the Supreme Court ruled 5-3 in the defendant's favor and held that jury deliberations can be examined when there are allegations of racial bias. I'll have more details soon in a future post. In the classic movie “Twelve Angry Men,” jurors file into a jury room to deliberate on the case of a young man charged with stabbing his father to death. Upon a preliminary vote, eleven of the twelve are in favor of a quick guilty verdict. The sole holdout, Juror #8 (played by Henry Fonda) insists they should not rush and that the young man’s fate deserves at least some of their time and consideration. As the deliberations proceed, every other juror eventually comes to agree with #8, as they discover different reasons to have a reasonable doubt. The film ends with the jurors heading back to the courtroom to return a “not guilty” verdict. Sorry -- maybe I should have led this post with, “Spoiler Alert.”

The Jury Votes in "Twelve Angry Men"

Part of the appeal of “Twelve Angry Men” probably stems from the way it pulls back the curtain on a scene that most of us never see. Jury deliberations take place in secret. Although jurors generally are not prohibited from discussing the deliberations once the case is over, the public usually does not get much information about what goes on behind the jury room door. The confidential nature of jury deliberations is reflected in a long-standing rule in federal court and in most states providing that information about what was discussed during jury deliberations cannot later be used to question the verdict. In federal court this rule is embodied in Federal Rule of Evidence 606(b), which provides that a juror’s testimony about things discussed or taking place during jury deliberations is not admissible in a later proceeding to challenge the jury’s decision. Recently the U.S. Supreme Court heard arguments in a fascinating case, Peña- Rodriguez v. Colorado, that tests the limits of this rule when it collides with the compelling societal interest in not allowing racial bias to taint a criminal conviction.

Peña-Rodriguez v. Colorado

The defendant, Miguel Angel Peña-Rodriguez, was accused of groping two teenage girls at the Colorado racetrack where he worked. The girls were inside a restroom when a man they had seen at the racetrack earlier entered and asked them if they wanted to “drink or party.” When they said no, the man turned off the lights and tried to grab the girls. He touched one of them on the buttocks; the other girl felt his hand on her shoulder and moving towards her breast but she was able to push it away. The girls escaped and ran to their father, who also worked at the racetrack, to tell him about the incident. Based on their description the father believed the man was Peña-Rodriguez, and he notified the authorities. Peña-Rodriguez was later stopped by the police and the girls identified him as their assailant. The state of Colorado charged Peña-Rodriguez with one felony count of attempted sexual assault on a minor and three misdemeanors. The government’s evidence consisted primarily of the testimony and identifications from the victims. The defense presented alibi testimony from the defendant’s co-worker, who testified that the defendant was with him at the time of the offense. After what appears to have been a lengthy and difficult period of deliberations, the jury found Peña-Rodriguez guilty of the misdemeanors. They could not reach a verdict on the felony count, which was later dismissed. After trial, two of the jurors spoke with defense counsel. They reported that one of the jurors – identified in the case only as “H.C.” -- had expressed bias against the defendant during the jury deliberations. H.C., a former law enforcement officer, reportedly said the defendant was probably guilty because he was Mexican and Mexican men “ take whatever they want.” He said that Mexican men believe they can do whatever they want with women, and that when he was working on patrol, "nine times out of ten" Mexican men were guilty of being sexually aggressive towards women. He also said the defendant’s alibi witness could not be believed because he was “an illegal.” (This was not true; the witness testified that he was a legal resident.) After obtaining affidavits from the two jurors the defense requested a new trial, arguing that racial animus had tainted the jury's verdict. But Colorado, like most states, has a rule of evidence essentially identical to Federal Rule 606(b) that prohibits challenges to jury verdicts based on testimony about what happened during deliberations. Based on that rule, the trial court denied the motion. The Colorado Court of Appeals and Colorado Supreme Court affirmed this decision, and the Supreme Court agreed to hear the case.

The Rule Against Impeachment of Jury Verdicts

All sides in the case agreed, of course, that H.C.’s comments were reprehensible and have no proper place in jury deliberations. But the issue is whether, once those comments are discovered, a defendant’s Sixth Amendment right to a fair trial requires an exception to the rule against impeaching a verdict based on evidence of what went on during jury deliberations. The rule dates back more than two centuries and is based on several policy considerations. One concern is that allowing such evidence might inhibit full and frank discussions in the jury room, particularly about sensitive or controversial topics. Jurors should be free to speak their minds without fear that their statements may later become the subject of litigation challenging the verdict and potentially accusing them of misbehavior. The possibility of subsequent proceedings based on deliberations might also make jurors reluctant to return difficult or controversial verdicts. Another concern is protecting jurors from harassment. If post-verdict litigation based on jury deliberations became routine, attorneys would have an incentive to track down jurors, even weeks or months after a case was concluded, to probe their recollections about deliberations and look for possible ways to get another bite at the apple. It’s true that jurors now sometimes voluntarily remain after a case is over to discuss deliberations informally with counsel – but that’s far different from being subpoenaed, put on the stand, and cross-examined about deliberations weeks or even months after the case is over. But perhaps the paramount rationale for the rule is verdict finality: there is a public interest in having criminal judgments be final and respected and not subject to potentially endless rounds of challenges and rehearings. Public respect for and confidence in the jury system would be undermined if jury verdicts were routinely subject to attack and litigation long after a case is supposedly over. There are other safeguards in the system that protect against juror bias. The most important is voir dire, the jury selection process, where attorneys and the judge may ask questions designed to ferret out any potential biases. A primary purpose of voir dire is to screen out at the front end any potential jurors who may be biased or otherwise unable to be impartial. In addition, jury panels are required to represent a fair cross-section of the community, and racial bias in jury selection is prohibited. If there are signs of juror bias during trial or deliberations but prior to a verdict, other jurors or court personnel may bring those matters to the judge’s attention. And the requirement of a unanimous verdict of guilt beyond a reasonable doubt dilutes the ability of any one prejudiced juror to influence the final outcome of the case. (In this regard, it’s interesting to note that the defense at Peña-Rodriguez’s trial chose not to voir dire the potential jurors about any potential bias against Hispanics – a decision that apparently surprised the trial judge. And the two jurors who later raised concerns about H.C.’s comments did not bring those concerns to the judge’s attention during the jury deliberations, when the judge could have acted on them.) Relying on these policy rationales and the presence of these other safeguards, the Supreme Court has upheld Rule 606(b) against Sixth Amendment challenges in cases involving significant juror misconduct. For example, in Tanner v. United States the Court refused to allow the defendant to present evidence that a majority of the jurors in his case had been drinking, using drugs, or sleeping during the proceedings. And in Warger v. Shauers, a car accident case, the Court refused to allow evidence that a juror had revealed during deliberations that her daughter had been involved in a very similar accident. Neither Tanner nor Warger, however, involved claims of racial bias.

Should There Be an Exception for Juror Bias Based on Race?

Although there are many sound arguments in favor of the rule against impeachment of verdicts, the public interest also demands that racial animus not be allowed to infect court proceedings. That’s what makes the Peña-Rodriguez case so intriguing. Once the information about Juror H.C.’s statements was discovered, can the criminal justice system allow that verdict to stand and still maintain its legitimacy? (As an aside, strictly speaking this case is about bias based on ethnicity or national origin, not race. But both sides agreed that for purposes of the defendant’s right to a fair trial this was not a meaningful distinction and used the term “racial bias” throughout the case.) I think it’s difficult for the justice system to tolerate an outcome that seems so infected by potential bias, and it may well be that the Court will rule in Peña-Rodriguez’s favor. But exactly how the Court resolves the issue will be extremely interesting. The case presents difficult line-drawing questions and raises fears of a number of proverbial slippery slopes. The most obvious question concerns how to deal with other kinds of bias. At oral argument Peña-Rodriguez’s attorney wasn’t more than a minute into his presentation when Chief Justice Roberts started pressing him on whether a ruling in his favor would mean that future courts also would have to allow challenges to verdicts based on religious bias. Justice Ginsburg posed a hypothetical case involving a car accident where a juror says that all women are terrible drivers and so the woman is probably responsible – would that be subject to challenge as well? Justices Kagan and Sotomayor in particular seemed willing to argue that “race is different.” They implied the Court could create an exception that encompassed only race and not other forms of bias, given our country’s long struggle against racial discrimination. But the Chief Justice and Justice Alito in particular seemed less inclined to believe that such a line could reasonably be drawn. I tend to agree that drawing such a line is problematic. Could the justice system really tolerate a rule that said a defendant could challenge a verdict following expressions of racial bias but not a verdict based on a juror’s bias towards the defendant's religion, gender, or sexual orientation? It’s arguable that allowing inquiry into only certain kinds of bias actually does more to undermine faith in the integrity of the justice system than a simple blanket prohibition against any such inquiries at all. A rule that “race (or ethnicity) is different” could lead to some bizarre results. Suppose a defendant of Middle Eastern descent is on trial. Presumably, if during deliberations a juror said he believed the defendant was probably guilty because he was an Arab, that verdict could be challenged. But if a juror said that same defendant was probably guilty because he was a Muslim, that statement could not be used to impeach the verdict. The more you start to think about how to draw the lines, the more you start to see the appeal of the current prophylactic rule that simply prohibits any such inquiries. Much of the debate in this case also seems to underestimate the importance of the requirements of twelve jurors and a unanimous verdict. There’s a reason we have twelve jurors and require unanimity on proof beyond a reasonable doubt: the ability of any one juror to use improper arguments to sway an entire jury is greatly reduced. Peña-Rodriguez’s attorneys argued in their brief that, “convicting someone of a crime because of his race tramples our most vital principles of liberty and equality.” No doubt that is true -- but it's not clear that’s what happened. We know that H.C. made racially biased statements, but that is not the same as saying the jury convicted the defendant because of his race. Are we to assume that the other eleven jurors were simply sheep, powerless to resist the influence of H.C.’s odious opinions? Or is it not just as likely that many of the jurors would consider the statements reprehensible and tend to “tune out” H.C. and discount anything further that he said about the merits of the case? In “Twelve Angry Men” there is a scene where one of the jurors goes on an extended rant demonstrating bias against the defendant and arguing that “these people” are all animals with no morals. The other jurors, rather than being swayed by his arguments, one by one slowly get up, walk away from the juror and ignore him, until he finally falls silent. That’s only Hollywood, but it does effectively demonstrate the limited potential of a single biased juror to sway the unanimous verdict of all twelve. It also highlights the potential difficulty of evaluating the total dynamic of a jury’s deliberations based on a handful of statements taken in isolation. Peña-Rodriguez’s attorneys would respond that they should at least have a chance to let a judge consider the statements in light of the overall case to determine whether they might have swayed the jury’s verdict. Of course a judge is not in the jury room during deliberations, so his or her ability to assess the impact of any statements may be somewhat limited. The Peña-Rodriguez  jury deliberated for twelve hours - how does the judge assess the impact of a handful of bigoted statements by one juror, short of having a full-blown hearing with all the other jurors testifying? We could have a rule automatically throwing out any verdict where any discriminatory statements are made during deliberations, without trying to evaluate their impact. This would have the virtue of simplicity, but it’s a bit odd to allow relief only in those cases in which a juror is willing to vocalize his prejudices. Unfortunately, with our polarized society being what it is, it is probably safe to assume that inappropriate bias sometimes exists in jurors who do not admit it. Perhaps it is better simply to rely on the requirement of a unanimous verdict and other safeguards to prevent a biased juror from determining the final outcome, rather than having a rule that would grant one defendant relief over another simply because a juror in one defendant’s case was more blatant about his prejudices.

In the end, I think it’s going to be hard for the Court to allow Peña-Rodriguez's conviction to stand in light of what took place during deliberations. And in reality, cases where this kind of evidence surfaces will probably be very rare, so perhaps the concerns about opening the floodgates to potential challenges and juror harassment are misplaced. Maybe the holding can be limited to criminal cases, and only to cases involving claims of racial bias. But I don't envy the Justices trying to craft a rule that will give defendants like Mr. Peña-Rodriguez a remedy without completely gutting the sound policy against impeaching jury verdicts that has existed since the country’s founding. And if that policy is gutted, the unintended consequences for the jury system could be severe. Click here to join the Sidebars mailing list and receive e-mail notifications of future posts.