Jus­tices weigh dis­pute over ra­cial bias in jury room

Daily Freeman (Kingston, NY) - - WEATHER -

WASH­ING­TON >> There was noth­ing sub­tle about the eth­nic slurs a ju­ror in Colorado is re­ported to have made dur­ing de­lib­er­a­tions over a His­panic de­fen­dant charged with in­ap­pro­pri­ately touch­ing teenage girls.

Two other ju­rors claim their col­league de­ter­mined that de­fen­dant Miguel An­gel Pena Ro­driguez was guilty be­cause Pena Ro­driguez is “Mex­i­can, and Mex­i­can men take what­ever they want.”

Now the Supreme Court will de­cide how to rec­on­cile two tenets of the le­gal sys­tem that clash in Pena Ro­driguez’s case: trial by an im­par­tial jury and se­crecy in jury de­lib­er­a­tions.

The court is hear­ing ar­gu­ment Tues­day in Pena Ro­driguez’s bid to up­end his crim­i­nal con­vic­tion.

The Con­sti­tu­tion guar­an­tees crim­i­nal de­fen­dants a trial by an im­par­tial jury. Se­crecy in jury de­lib­er­a­tions is an Amer­i­can le­gal prin­ci­ple that goes back more than 200 years.

The high court has re­sisted the call in ear­lier cases to ex­am­ine what was said in the jury room. Se­crecy, em­bod­ied in state and fed­eral rules, is in­tended to pro­mote the fi­nal­ity of a ver­dict and shield ju­rors from out­side in­flu­ences.

In Pena Ro­driguez’s case, no other ju­ror was al­leged to have said any­thing im­proper and all 12 ju­rors, in­clud­ing the two who re­ported the in­ap­pro­pri­ate com­ments, voted to con­vict him.

In 2014, the jus­tices unan­i­mously reaf­firmed the sanc­tity of jury de­lib­er­a­tions. A mo­tor­cy­cle rider who lost a civil law­suit over a griev­ous in­jury he suf­fered in a traf­fic ac­ci­dent sought a new trial. He based his claim on one ju­ror’s re­port that a se­cond ju­ror said dur­ing de­lib­er­a­tions that her daugh­ter had been at fault in a sim­i­lar case and a law­suit against the daugh­ter would have “ru­ined her life.”

Jus­tice So­nia So­tomayor’s opin­ion in that case left open the pos­si­bil­ity that some com­ments might go too far.

“There may be cases of ju­ror bias so ex­treme that, al­most by def­i­ni­tion, the jury trial right has been abridged,” So­tomayor wrote in a foot­note to her opin­ion.

Af­ter a jury con­victed Pena Ro­driguez of un­law­ful sex­ual con­tact and ha­rass­ment in­volv­ing teenage sis­ters at a Den­ver-area horse race track, two ju­rors pro­vided his lawyer with sworn state­ments claim­ing that a third ju­ror made deroga­tory re­marks about Mex­i­can men be­fore vot­ing guilty.

The ju­rors at­trib­uted sev­eral trou­ble­some state­ments to the ju­ror iden­ti­fied in court records by the ini­tials H.C. He told the ju­rors that he used to be in law en­force­ment and where he used to pa­trol, “nine times out of 10 Mex­i­can men were guilty of be­ing ag­gres­sive to­ward women and young girls.” He also is said to have cast doubt on an alibi pro­vided by a His­panic wit­ness for Pena Ro­driguez be­cause the wit­ness was “an il­le­gal.” The wit­ness tes­ti­fied that he was in the coun­try legally.

Pena Ro­driguez’s case cries out for a strong mes­sage from the court in sup­port of the right to a fair and im­par­tial jury, his lawyers ar­gued in court pa­pers. “Bar­ring de­fen­dants from in­tro­duc­ing ju­ror tes­ti­mony re­count­ing racially bi­ased state­ments made dur­ing de­lib­er­a­tions strikes at the heart of the Sixth Amend­ment’s im­par­tial-jury guar­an­tee,” they said.

Colorado, backed by 12 other states and the Obama ad­min­is­tra­tion, ac­knowl­edged that “ra­cial bias is rep­re­hen­si­ble and has no place in the jury room.”

But Colorado At­tor­ney Gen­eral Cyn­thia Coff­man said this case is not the oc­ca­sion for a ground-break­ing rul­ing.

There are other ways to get at ju­ror bias, the Obama ad­min­is­tra­tion said in a brief sup­port­ing Colorado. In one ex­am­ple given by the Jus­tice Depart­ment, Pena Ro­driguez’s lawyers did not ques­tion prospec­tive ju­rors about prej­u­dice, even af­ter the judge cau­tioned lawyers that ju­rors in past cases “have been vo­cal in their dis­like of peo­ple who aren’t in the coun­try legally.”

Had the two com­plain­ing ju­rors spo­ken up sooner — be­fore the jury reached a ver­dict — the judge could have in­ves­ti­gated and re­placed the ju­ror, if nec­es­sary, with­out call­ing the whole trial into ques­tion.

The trial judge re­jected de­fense lawyers’ bid to ques­tion the ju­ror and that de­ci­sion was up­held by split de­ci­sions in two Colorado ap­peals’ courts.

Civil rights groups in­clud­ing the NAACP Le­gal De­fense and Ed­u­ca­tional Fund and the Amer­i­can Civil Lib­er­ties Union told the court that fail­ing to con­sider the com­ments made by a ju­ror iden­ti­fied only by the ini­tials H.C. would have reper­cus­sions beyond Pena Ro­driguez’s case.

AP FILE

The Supreme Court build­ing in Wash­ing­ton, D.C., is shown in Fe­bru­ary.

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