IN­SIDE: Supreme Court backs out of high-pro­file case,

Austin American-Statesman - - FRONT PAGE - Adam Lip­tak

The WASH­ING­TON— Supreme Court ruled Mon­day that courts must make an ex­cep­tion to the usual rule that jury de­lib­er­a­tions are secret when ev­i­dence emerges that those dis­cus- sions were marred by racial or eth­nic bias.

“Racial bias im­pli­cates unique his­tor­i­cal, con­stitu- tional and in­sti­tu­tional con- cerns,” Jus­tice An­thony Kennedy wrote for the ma­jor­ity in the 5-3 de­ci­sion.

The case arose from state­ments made dur­ing jury de­lib­er­a­tions in a 2010 sex­ual as­sault trial. “I think he did it be­cause he’s Mex­i­can, and Mex­i­can men take what- ever they want,” a ju­ror said of the de­fen­dant, ac­cord­ing to sworn state­ments from other ju­rors sub­mit­ted by de­fense lawyers af­ter the trial was over.

The ju­ror, iden­ti­fied in court pa­pers as H.C., was a for­mer law en­force­ment offi- cer. Af­ter the trial was over, two other ju­rors sub­mit­ted sworn state­ments de­scrib­ing what he had said dur­ing de­lib­er­a­tions.

“He said that where he used to pa­trol, nine times out of 10 Mex­i­can men were guilty of be­ing ag­gres­sive to­ward women and young girls,” one ju­ror re­called.

Those state­ments, Kennedy wrote, war­ranted an in­ves­ti­ga­tion by the trial judge into de­lib­er­a­tions that are or­di­nar­ily secret. Jus­tices Ruth Bader Gins­burg, Stephen Breyer, So­nia So­tomayor and Elena Ka­gan joined the ma­jor­ity opin­ion.

In dis­sent, Jus­tice Sa­muel Al­ito, joined by Chief Jus­tice John Roberts and Jus­tice Clarence Thomas, wrote that the ma­jor­ity opin­ion was a well-in­ten­tioned but ill-con­sid­ered in­tru­sion into ju­rors’ pri­vacy.

Kennedy wrote that the usual tools to root out bi­ased ju­rors — ques­tion­ing dur­ing jury se­lec­tion and re­ports from ju­rors be­fore they ren­der a ver­dict — are less ef­fec­tive when race is at is­sue. Pointed ques­tions about racism may ex­ac­er­bate ten­sions, he wrote. And ju­rors may be re­luc­tant, he added, to ac­cuse one an­other of in­sen­si­tiv­ity.

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