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March 6, 2017
SCOTUS rules in Pena-Rodriguez that Sixth Amendment creates exception to jury impeachment rule when racial animus revealed
A split Supreme Court weighed in on the intersection of racial bias and jury decision-making via a notable Sixth Amendment ruling in Pena-Rodriguez v. Colorado, No. 15–606 (S. Ct. March 6, 2017) (available here). Here is how Justice Kennedy's opinion for the Court gets started and concludes:
The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.
In the era of our Nation’s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty. See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A. Hamilton). The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6. By operation of the Fourteenth Amendment, it is applicable to the States. Duncan v. Louisiana, 391 U. S. 145, 149–150 (1968).
Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense. A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question 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....
The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.
The start of the dissenting opinion by Justice Thomas explains his concerns and the core concerns of the other dissenters (which are expressed via an opinion by Justice Alito joined by the Chief and Justice Thomas):
The Court today holds that the Sixth Amendment requires the States to provide a criminal defendant the opportunity to impeach a jury’s guilty verdict with juror testimony about a juror’s alleged racial bias, notwithstanding a state procedural rule forbidding such testimony. I agree with JUSTICE ALITO that the Court’s decision is incompatible with the text of the Amendment it purports to interpret and with our precedents. I write separately to explain that the Court’s holding also cannot be squared with the original understanding of the Sixth or Fourteenth Amendments.
March 6, 2017 at 10:33 AM | Permalink
A lawless decision. It's really that simple.
Posted by: federalist | Mar 6, 2017 11:45:29 AM
Federalist, I notice that every decision you disagree with is "lawless" or written by "hack" judges. What inference can we draw from this pattern?
Posted by: anon5 | Mar 6, 2017 11:59:36 AM
anon5 nails it. Federalist, if only you were on the Court, all would be right with the world.
Posted by: Emily | Mar 6, 2017 12:00:47 PM
I don't know about all, but certainly a lot.
Posted by: Soronel Haetir | Mar 6, 2017 12:43:14 PM
It's lawless for any number of reasons:
(1) The idea that jurors cannot impeach their own verdict is unquestionably a constitutional rule, and that doesn't depend on what was said during deliberations.
(2) What's the logical stopping point? Are we going to have intrusive review of everything a juror ever said in his life? Are we going to permit investigations? What about denials by the person who said it? What about anti-male comments? Or code words?
Posted by: federalist | Mar 6, 2017 1:50:10 PM
Federalist writes the case is lawless because "(1) The idea that jurors cannot impeach their own verdict is unquestionably a constitutional rule, and that doesn't depend on what was said during deliberations." Last I heard the Supreme Court decides what the law is.
(2) What's the logical stopping point? remarks showing that the juror is racially biased against the defendant. That's the logical stopping point.
Posted by: Jane | Mar 6, 2017 2:26:00 PM
"Last I heard the Supreme Court decides what the law is."
From a power standpoint, that's true (until it's not.) From the standpoint of logic (see Scalia's dissent in Dickerson), it's certainly not.
Posted by: federalist | Mar 6, 2017 3:19:51 PM
Oh, and Jane, go re-read the opinion, there is a lot of conditionality (sure to go bye-bye) on the admissibility of impeachment evidence.
Posted by: federalist | Mar 6, 2017 3:21:56 PM
Jane. I am sorry. The constitution prohibits judicial review in Article I Section 1, giving law making power to a Congress. The repeal of a law is law making.
Posted by: David Behar | Mar 6, 2017 4:10:47 PM
Mr. Behar, "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137, 177 (1803).
Posted by: Jane | Mar 6, 2017 4:54:41 PM
Jane is understandably unclear on federalist's terms since things like "unquestionably" includes "not only things what the Supreme Court questions but what many others do." So, we are left with wondering the test other than "I disagree strongly."
As to limits, bias is a test that arises in various contexts. I don't know of anyone who disagrees that this is valid at some point. In each case, some similar slippery slope concern can be raised. For instance, bias of the judge is cited for recusal purposes. What is valid there? Some criteria over time are formulated and weighed.
Basically, there is a reasonable debate on the appropriate rule, which makes the narrowly divided Court here unsurprising.
Posted by: Joe | Mar 6, 2017 6:13:50 PM
I find myself torn on this issue but I do want to respond to one point. Jane writes, "remarks showing that the juror is racially biased against the defendant. That's the logical stopping point." Sorry, Jane but that's not a logical stopping point. That doesn't mean that it is wrong; it just means that a racial stopping point has no basis in logic. Indeed the majority opinion explicitly denies any basis in logic, it roots its argument in the idea that race is special /historically/. The point that Kennedy makes about history is valid--we fought a war over race. I just don't know that I find it persuasive in this context.
Be that as it may, Federalist is correct on the logic point. The court did not use logic to defend its position; it used history. Whether that makes the decision "lawless" is debatable.
Posted by: Daniel | Mar 6, 2017 9:04:10 PM
Logical is defined by one dictionary as "characterized by or capable of clear, sound reasoning." I think Jane's statement works as applied here. There are clear, sound reasons for race to be given special concern here above and beyond other things ... at least if setting up a national floor.
Kennedy did not merely rest on history: "racial bias implicates unique historical, constitutional, and institutional concerns." Pragmatic concerns are also cited. One can debate the argument on the merits. But, logic was used. In fact, even if he merely used history, it might be logical, if history is an appropriate means to determining the meaning of constitutional terms. Originalists often think so.
Posted by: Joe | Mar 6, 2017 9:42:34 PM
Jane. The unlawful nature of Marbury is reviewed below.
The first expression of your judicial review was in Dred Scott. That decision cancelled the Missouri Compromise, that prevented war for 20 years. It violated a ratified international treaty with Canada. It set off the Civil War that killed 850,000 people. It set back race relations for 100 years. Aside from those consequences, judicial review is a great idea.
OK. The Civil War was really bad lawyer toxicity set on our lawyer besieged nation. How about the millions of babies that have been killed with no due process in our American holocaust, as a result of the judicial review in Roe v Wade?
Did you know that Dred Scott is not covered in law school, much in the same way, the attack on Pearl Harbor is not covered in Japanese history class?
The lawyer is a total denier.
Posted by: David Behar | Mar 6, 2017 11:29:07 PM
I would say that if it wasn't serious enough for the other complaining jurors to refuse to reach a verdict that it isn't serious enough to question now. They chose to come forward after the verdict rather than before, and I believe that makes all the difference.
Posted by: Soronel Haetir | Mar 7, 2017 1:55:57 AM
Mr. Behar, you write, "How about the millions of babies that have been killed with no due process in our American holocaust, as a result of the judicial review in Roe v Wade?"
A fetus is not a baby, no more than is a sperm cell. By the way, you (and all men) should be prosecuted for murdering hundreds of millions of living sperms, the source of life, everytime men masturbate. Mr. Behar, how many times did you do so this week?
Posted by: Virginia from Virginia | Mar 7, 2017 9:12:58 AM
The decision is lawless for any number of reasons, but one problem in particular is that this is simply not how a rights-based jurisprudence is supposed to work.
Obviously, the starting point for this right is the right to a fair jury. So, if the idea is that this right, in this context is only violated when the juror (we don't know the rule where there is a non-unanimous verdict) makes an explicit statement tying invidious views to his/her decision, the disconnect is obvious. First of all, it's an odd "magic words" approach which runs counter to pretty much everything in our law when it comes to the protection of basic constitutional rights--the only other thing I can think of that comes close is the idea that racial bias accusations against prosecutors must satisfy a pretty high threshold.
Second of all, just read this drivel:
"Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict."
So if a juror says the "n-word" but doesn't tie that to the juror's decision to convict, the defendant is out of luck? Are you kidding me? Once the right has been established, it needs to be protected, or else it's not really a right, but a dog and pony show created so enlightened courts can join the national dialogue on race. Ok, so maybe there's another exception for the "n-word"--so what about a "YBM" slur?
This is just nonsense. The Constitution just doesn't cut this finely--either overt racial bias is ok in the jury room or it is not. So maybe, just maybe, the Constitution allows states to look at a process and decide that, hey, in a system where citizens are interposed between the state and the prison cell, we put them in the room and what is said in the room stays in the room, instead of creating a strained exception.
Posted by: federalist | Mar 7, 2017 12:50:26 PM
The argument you present in defense of logic is itself illogical. For everything is unique, every second, every minute, every moment of space time is unique--like a snowflake. The argument that there is unique set of historical, legal, institutional set of circumstances that make racism special is a perfect example of an argument that proves too much because that is true of all arbitrary sets of circumstances. There is nothing logical about it; it's hocus pocus.
Posted by: Daniel | Mar 7, 2017 12:59:56 PM
To those above who write that the holding of the case is not logical. I say,
"it has been truly said that the life of the law is not logic but experience, see O. Holmes, The Common Law 1 (1881), California v. U. S., 98 S.Ct. 2985, 2987, 438 U.S. 645, 648 (1978) (Rehnquist, J).
Posted by: Jane | Mar 7, 2017 1:35:07 PM
Jane, you're just scoreboard pointing. The problem is that this decision is very difficult to defend in terms of legal process.
Posted by: federalist | Mar 7, 2017 1:44:44 PM
I am currently a criminal defense lawyer. I've tried more than 50 federal criminal cases to verdict, from the prosecution side and from the defense side. I strongly believe in the jury system, including the right of jurors to free and untrammeled deliberation. I was aghast when I read of this decision in this morning's paper.
It seems to me that Kennedy and the other Justices in the majority have an unjustified, unreasonable belief in their own ability to cleanse the process from racial elements. They want it to be pure as the driven snow, but life is not pure, and wanting something does not make it so. Jurors come to their deliberations with all of their biases intact. We need to trust that, collectively, they will respond to the better angels of their nature. We should not set aside their judgment just because some jurors, or defense lawyers, run to the court to disclose offensive, racist comments by another juror. The defendant should have been told this hard truth: "Life is not pure. Life is not fair. You may not have been treated fairly, but there are other values beside fairness, the confidentiality of jury deliberations is one of them, and fairness does not outweigh it."
The results of the process will be as fair and enlightened as the citizenry, embodied in the jury, are fair and enlightened. One would hope that the "enlightened" jurors would fight back against expressions of racial prejudice. In this case, it seems that they may have -- what else would explain what seems to have been a compromise verdict?
Posted by: Late Inning Relief | Mar 7, 2017 4:26:41 PM
I agree whole-heartedly with your Holmes quote because it is exactly my point. Just because something is illogical doesn't mean that it is wrong. However, we should be clear on our terms and not use the word "logic" to buttress our positions when in fact what we mean is "experience".
It's worth nothing that Holmes said that what is living in the law is experience. Sometimes, as in this case, the law presents a difficult choice between the living (experience) and the dead (logic).
Posted by: Daniel | Mar 7, 2017 5:08:09 PM
It's hard to make the argument that the rule against impeachment is a "constitutional" rule. Many states have versions of that rule with numerous exceptions. It's harder, however, to make the argument that the court makes which is that the constitutional right to a jury trial requires allowing impeachment in some circumstances. While the Framers of the Sixth and Fourteenth Amendment might have disagreed on whether the right to trial by jury absolutely requires the rule against impeachment, there is little or no support in the historical record for the proposition set forth by the five justices -- that the Sixth and Fourteenth Amendment require this exception to the rule against against impeachment.
Posted by: tmm | Mar 7, 2017 8:22:05 PM
Jane. Experience has shown us the judgment of lawyers has been catastrophic to the nation. The profession must be crushed to save this country. They are stupider and have less sense than kids in Life Skills class learning to use forks, and to tie their shoes as the curriculum.
Posted by: David Behar | Mar 8, 2017 8:38:03 AM
tmm, "is constitutional" means that states are permitted to adopt it--not that it is required by the constitution.
If racial bias is such a compelling reason to create an exception to a plainly constitutional rule, then the "narrowness" of when that exception will obtain is illogical.
Putting aside the results--what is better from the standpoint of adherence to justice:
(1) The Constitution allows states to protect the sanctity of the jury room by facilitating free and open debates within the room. This is necessary because the Framers decided that a jury of free citizens will always be interposed between the state and a prison cell. or
(2) Racial bias in the jury room is intolerable, but we're going to only allow evidence of that in certain situations.
Posted by: federalist | Mar 8, 2017 9:15:30 AM
"Basically, there is a reasonable debate on the appropriate rule, which makes the narrowly divided Court here unsurprising."
Notice the elision. The issue for the Court, of course, was not whether the absolute rule is a good idea or not, but whether the Constitution forbids it.
Posted by: federalist | Mar 8, 2017 9:47:32 AM
"The argument you present in defense of logic is itself illogical. For everything is unique, every second, every minute, every moment of space time is unique--like a snowflake. The argument that there is unique set of historical, legal, institutional set of circumstances that make racism special is a perfect example of an argument that proves too much because that is true of all arbitrary sets of circumstances. There is nothing logical about it; it's hocus pocus."
Your use of language continues to be unconvincing to me. This extreme use of "unique" is not how the term is being used. And, again, HISTORY, which you single out as used by the Court here, was but ONE thing listed when defending the rule set forth. It used various criteria to defend using the rule specifically in case of race. If you don't like how they used "unique," take the word out. Use "very special for constitutional purposes" or whatever you want to use.
Posted by: Joe | Mar 9, 2017 12:19:46 PM
Late Inning Relief is "aghast." Thanks for your .02!
Still, I'm unsure why one should be "aghast" about this since jurors are not merely trusted to make a decision. There are a range of checks on the process. If this appalls you, I gather maybe you are not a big fan of Batson either! And, merely having an offensive opinion probably won't be enough under the opinion anyhow.
I can understand disagreement with the result. Going the other way would not be horrible. tmm notes "little or no support in the historical record" for it. I'm not an originalist, so original understanding doesn't compel me one way or the other. I think there is support in the "historical record" for special concern. Is this specific rule necessary? Logical arguments both ways imho. fwiw.
Posted by: Joe | Mar 9, 2017 12:28:48 PM
Late inning relief asserts that is aghast at the opinion. He asserts "Jurors come to their deliberations with all of their biases intact. We need to trust that, collectively, they will respond to the better angels of their nature." Who is he kidding?
So, let me ask, after a guilty verdict against a black defendant, a juror calls you up, Mr. Defense attorney, and says, "sir, I must tell you that we took the first round of votes and it was 10-2 for acquittal. Then the two dissenting jurors got up and proclaimed they would never vote to acquit that "nigger" because all niggers are guilty; "it's in their blood." They continued, "we didn't even listen to the evidence or to the jury instructions. We took one look at that black son of a bitch and said guilty, guilty guilty guilty." After this harangue, the the jury voted again 12-0 for guilt.
The juror says to you he doesn't think that was right. He asks you if there's anything you can do. So, given that scenario, do you just sit on your rear end? Federalist, just imagine (immplausible as it may be, I know) that you were the defense attorney who received the call, would you say, "thanks for the call; that's the way it goes."?
Posted by: anon | Mar 10, 2017 11:03:29 AM
anon poses a nice hypothetical Late Inning and Federalist, but make it even stronger: let me ask, after a guilty verdict against a black defendant, a juror calls you up, Mr. Defense attorney, and says, "sir, I must tell you that we took the first round of votes and it was 10-2 for acquittal. Then the two dissenting jurors got up and proclaimed they they too thought the defendant was innocent but that they would never vote to acquit a "nigger" because all niggers are guilty of something, even if not what this guy's on trial for; "it's in their blood." They continued. We took one look at that black son of a bitch and said guilty, guilty guilty guilty." After this harangue, the the jury voted again 12-0 for guilt.
the juror says to you he doesn't think he did right and what the dissenting jurors did was right. He asks you if there's anything you can do. So, given that scenario, do you just sit on your rear end? Federalist, just imagine (immplausible as it may be, I know) that you were the defense attorney who received the call, would you say, "thanks for the call; that's the way it goes."?
Posted by: anon2 | Mar 10, 2017 4:44:42 PM
The hypotheticals posed above by anon and anon2 convince me that Pena-Rodriguez was correctly decided.
Posted by: Mary from Rhode Island | Mar 10, 2017 4:46:27 PM
Virginia. Before answering questions about my sperm, I need to see a picture of you.
Posted by: David Behar | Mar 12, 2017 6:57:05 PM
Mr. Behar, I'm not sure you produce any sperm at all.
Posted by: Virginia from Virginia | Mar 12, 2017 9:12:17 PM