Inside the Criminal Case: Race, talking to jurors and impeachment
In a typical courtroom in Colorado, a jury found a defendant guilty of unlawful sexual contact with two teenaged girls. Pena-Rodriguez v. Colorado, 15-606, 2017 WL 855760 *5 (U.S. Mar. 6, 2017). As is custom in some areas, the lawyers for the case were permitted to speak with the jury after it returned its verdict. The group chatted, and as most of the jurors exited after the post-trial huddle, two hung back to inform the attorneys about one of the juror’s “anti-Hispanic bias toward” the defendant.
Specifically, this juror (who will be forever known in the history of jurisprudence as H.C.) stated that he “believed the defendant was guilty because, in [H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” Id. H.C. also expressed during deliberations that “I think he did it because he’s Mexican and Mexican men take whatever they want.” Id.
With the judge’s supervision, these jurors prepared affidavits and submitted them to the trial court. While acknowledging H.C.’s bias, the trial court denied a motion for a new trial based on the fact that Rule 606(b) of Colorado’s Rules of Evidence (which is similar to Indiana’s Rule 606(b)) prohibited a juror from testifying “as to any matter or statement occurring during the course of the jury’s deliberations.” Id. at *6.
As is typical in these articles, nine years of hard work by attorneys is summarized in three paragraphs and some writer like me says, “eventually this case landed before the United States Supreme Court.”
The Supreme Court noted that a “[g]eneral rule” called the “no-impeachment rule” had “evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict is entered, it will not later be called into question.” Id. at *4.
The specific issue raised in this case was “whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Id. at *4.
Noting that “[i]t must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons,” the Supreme Court eventually held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Id. at * 11, 14.
Here are a few takeaways from this holding:
1. The post-conviction flood gates are likely not open.
It is hard to imagine many cases that are unaffected somehow by the issue of race. When I first read this case, I began to wonder if this ruling would affect every jury verdict in Indiana history. I worried that our friends at the Post Office would not be able to carry the mail that goes to our colleagues who handle post-conviction work.
But in delivering the majority opinion, Justice Anthony Kennedy noted that “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar.” Id. The bar is set much higher and “[t]o qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Id.
2. Always talk to jurors if you get the chance.
In the Pena-Rodriguez case, the information that led to this ruling fell into the lawyers’ laps. They spoke to the jurors after the case, probably to learn how they can do better in the future (and probably in hopes of hearing how great they were). If not for this discussion, they probably would not have learned what H.C. said behind closed doors.
Information like this is difficult to compel. Justice Kennedy stated that the “practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors.” Id. So check your local rules and review Rule 3.5 of the Indiana Rules of Professional Conduct before you go knocking on jurors’ doors.
Please note “A lawyer shall not … communicate with a juror … after discharge of the jury if … the juror has made known to the lawyer a desire not to communicate.” Ind. R. Prof. Conduct Rule 3.5(c)(2).
3. Courts need to know prospective jurors’ views on race.
How many times has a juror made comments in deliberations like the ones made by H.C. and no court ever learned about it? How many times has race affected a verdict but the H.C.-like juror never made statements that could be used to impeach the verdict?
In the Pena-Rodriguez case, “[n]one of the empaneled jurors expressed any reservations based on racial or any other bias.” Pena-Rodriguez, 2017 WL 855760 at * 4. Justice Kennedy noted in his opinion that the “stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations.” Id. at * 13.
If it is difficult to tell on a fellow juror, it will be really difficult for a juror to tell on her or himself in crowded jury selection room full of strangers. If lawyers and courts can create more settings or utilize mechanisms (like questionnaires) where jurors can be honest about their opinions, the more likely the justice system will “rise above [the] racial classifications” that Justice Kennedy wrote about in Pena-Rodriguez. Id. at * 13•
Note: This article first appeared in the March 22, 2017 edition of The Indiana Lawyer.