Justices asked to rule that racial bias trumps jury secrecy

Mark Sherman - Associated Press

WASHINGTON — A Supreme Court appeal from a Hispanic defendant in Colorado raises the prospect that a juror's comments during deliberations can be so offensive that they deprive a defendant of a fair trial.

The justices could say as early as Monday whether they will take up a case in the fall involving competing tenets of the US legal system: a defendant's constitutional right to trial by an impartial jury, and the need for secrecy in jury deliberations.

After a jury convicted Miguel Angel Pena Rodriguez of attempted sexual assault 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.

"I think he did it because he's Mexican and Mexican men take whatever they want," is one of several racially tinged statements attributed to the juror identified in court records by the initials H.C. In another comment, the juror 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.

But three separate courts in Colorado said those statements could not be used to upend Pena Rodriguez's conviction because of a long-standing rule that prohibits jurors from testifying about what happens during deliberations. The rule, found in both federal and state law, is intended to promote the finality of verdicts and to shield jurors from outside influences.

The Supreme Court also has been unwilling to intrude on deliberations.

In a 5-4 ruling in 1987, Justice Sandra Day O'Connor wrote the majority opinion that rejected calls for a hearing to explore allegations made by jurors of drug and alcohol use by jurors during a criminal fraud trial.

"There is little doubt that post-verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it," O'Connor wrote.

In dissent, Justice Thurgood Marshall said the right to an impartial jury was more important. "If, as is charged, members of petitioners' jury were intoxicated as a result of their use of drugs and alcohol to the point of sleeping through material portions of the trial, the verdict in this case must be set aside," he wrote.

In 2014, justices unanimously reaffirmed the sanctity of jury deliberations. The court rejected a challenge to a jury verdict in a civil case brought by a motorcycle rider who had his left leg amputated as a result of a traffic accident. He sought a new trial based 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.

Pena Rodriguez's case is one such example, his lawyers wrote in their Supreme Court filing, because the juror "injected racial animus into the deliberations."

His legal team also said that the justices should resolve a split among federal and state courts "on this manifestly important question" of whether juror testimony can be used to demonstrate racial bias in deliberations.

The NAACP Legal Defense and Educational Fund and the National Congress of American Indians are among the groups backing Pena Rodriguez, cataloguing examples of trials in which jurors uttered slurs or made derogatory remarks about Native American, African-American and Hispanic defendants.

Opposing the high court's involvement in this case, Colorado Attorney General Cynthia Coffman wrote that the verdict was based on overwhelming evidence and that no juror suggested that the offensive comments affected or persuaded anyone else. Coffman also said Pena Rodriguez's lawyer might have picked up on the juror's alleged bias during jury selection, but failed to ask any questions about race or ethnicity.

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