Mimesis Law
18 June 2019

Is A Racist Juror Reason For Reversal? SCOTUS Takes The Case (Video)

Apr. 5, 2016 (Mimesis Law) — Kozinski summarized it pretty well. Jurors mess up. They don’t understand jury instructions. Or they vote to convict for stupid reasons. Sometimes they nullify. Sometimes they’re drunk or high, or fall asleep during important witness testimony. Some of them are bullied into a verdict they don’t support. Others care so little that they’ll join in any position if it gets them home even a minute faster. Many don’t understand the government’s burden of proof.

And some of them are racists.

The Supreme Court of the United States granted cert today in a case that asks an important question—if a defendant suspects that he was convicted due to the racist views of a juror, can he be constitutionally prevented from calling that juror as a witness at a later proceeding?[1]

Miguel Angel Pena-Rodriguez was charged with trying to grope two teenage girls in a dark room at a horse-racing track. The two girls described the man to their father, who worked at the racetrack, and he suspected Pena-Rodriguez. Later that night, police pulled Pena-Rodriguez over, and then had the girls identify him while he sat in the back of a squad car.

Despite the testimony of an alibi witness (also Hispanic), Pena-Rodriguez was convicted. But at least some of the jurors were trouble by the result. Two jurors lingered afterwards, and told defense counsel that one of the jurors (an ex-cop) had said things that would make Donald Trump’s hair curl, namely that:

  • Pena-Rodriguez “did it because he’s Mexican and Mexican men take whatever they want.”
  • Mexican men are physically controlling of women because they have a sense of entitlement and think they can “do whatever they want” with women.
  • Pena-Rodriguez “was guilty because, in [Juror 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.”
  • Where Juror H.C. used to patrol, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”
  • Pena-Rodriguez’s alibi witness was not credible because, among other things, he was “an illegal.”

So far, so good. Seems almost like a slam-dunk, in fact. At least one of the jurors on the panel convicted Pena-Rodriguez because he believed Mexicans were a group of sexually aggressive liars. He never told the court of those views, and his points may very well have persuaded the other jurors to convict. In our system of justice, failure to be subtle about racism can lead to a new trial.

And that’s particularly true when the evidence of guilt isn’t strong. The police did everything they could to screw up the identification. They didn’t provide a photo array or a line-up. They had the defendant sitting in the back of a squad car, with the girls identifying him from fifteen feet away, and then confirmed their choice.[2]

The problem is, in almost every jurisdiction in the country, you aren’t allowed to question jurors about their deliberations. Colorado’s rule 606 looks like this:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.

There are exceptions to the rule, of course. Jurors can testify about bribes and threats, outside research, and whether some idiot just happened to check the wrong box on the verdict form. But there is no exception for racism.

Given that the Supreme Court has already held that you can’t ask a juror after the trial about a traumatic car crash that affected her views, or about whether the jury was three sheets to the wind during the trial, the Colorado Supreme Court held that you can’t draw a line between racism and other kinds of pre-trial life experience just because racism is less popular:

To draw such a line would not only violate the longstanding rule of shielding private jury deliberations from public view—not to mention incentivize post-verdict harassment of jurors—but it would also require trial courts to make arbitrary judgments that hinge on the severity of a particular juror’s impropriety or the intensity of his bias. We decline to sanction such a haphazard process.

Meanwhile, many other courts have chafed at Rule 606, allowing questioning of jurors who say things like, “all the blacks are guilty” or who “mockingly beat water bottles ‘like tom-tom drums’” when trying a Native American defendant.

If you want to be a brilliant United States Supreme Court prognosticator, you should bet on the petitioner. They win 68% of the time these days. Given that there’s a big circuit split on this issue, and the Court has chosen a case where the State’s evidence is so weak, that is probably a safe bet here.

But, ultimately, it’s hard to distinguish between the stupidity of racism and the thousand other blunders that mark how juries think about a case. If we open the door on racism, there’s no telling what other stupid juror views might start coming to the forefront once a trial is over. Batson seemed like a pretty big win for defendants, after all, until the government started using it to challenge strikes of white jurors. Now, the panels are just as white as they always were, but we pretend to have a system to address it.

And while a rule allowing defendants a new trial when racism has led to their conviction sounds great on the surface, let’s not forget that the powers that be are all-too-willing to treat violence against police as a “hate crime.” Imagine the difficulty convicting officers or maintaining verdicts when there’s the prospect of a post-trial inquiry into hidden anti-cop bias.

Alternately, there are some prosecutors who might consider an acquittal based on nullification not to be a “true” acquittal, since it’s not based on the law as given to the jury. Calling jurors after trial to ensure they followed their instructions could lead to a new way to challenge acquittals, or at a minimum, the prospect that a nullifying juror might be prosecuted for failing to follow his oath.

In short, before we cheer too loudly about transparency, let’s think for a minute about how a more accessible jury after trial might create problems for the very citizens whose rights they’re bound to respect. We might not be so happy once we come to learn how the sausage is made.

[1] “The question presented is whether a no impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.”

[2] There was a later in-court identification as well. An in-court identification occurs when a witness is called upon to point out which person sitting in the defendant’s seat at the defense table is the defendant, usually by excluding anyone who looks comfortable in a suit. “Faking out” the witness by having similar-looking people sit at the table has been held to be unethical in many states, probably because it shows what an embarrassment this procedure is.

6 Comments on this post.

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  • Miranda E Griffin
    5 April 2016 at 9:39 am - Reply

    Everyone is entitled to their opinions, but you’d think a former Law Enforcement Officer would know better, but I’m just a student…

    What say you attorneys, judges, and other Criminal Justice professionals?

  • Richard G. Kopf
    5 April 2016 at 10:06 am - Reply


    In my view, and after many, many criminal and civil jury trials, what jurors say to each other should remain entirely private away from the prying eyes of government lawyers and defense lawyers alike. This is one time where the slope is not only truly slippery but will end in disaster if the sanctity of jury deliberations is not maintained. If the “snitch” jurors thought there was a real problem, they should have brought it to the attention of the trial judge before they voted to convict.

    All the best.


    • Andrew Fleischman
      5 April 2016 at 10:51 am - Reply

      Judge Kopf,

      I think you make a good point. Finding ways to encourage jurors to speak up when this sort of thing happens is likely to be more effective (and less disastrous) then dragging them back to court to testify later.

  • WJM
    5 April 2016 at 1:16 pm - Reply

    There was also a District of South Carolina decision a few days ago where the court granted habeas and vacated a death sentence in part due to a juror’s racist remarks/bias:

    ***During a 2007 interview, PCR counsel asked a juror in the second sentencing jury (identified herein as the “Juror”), “why did you think Mr. Bennett had killed the victim?” The Juror responded, “because he was just a dumb nigger.”***

    Of course that was coupled with an all-white jury and prosecutorial conduct such as eliciting irrelevant testimony about a defendant’s (consensual) relationship with a white woman, comparing defendant to King Kong, and eliciting testimony regarding a dream about a horde of angry blacks coming after him from a guy that had been assaulted by the defendant in the past–all resulting in a death sentence.

    The juror’s remarks weren’t made during deliberations and only came out after the fact, so there’s at least one example of “alert the trial judge” not really being a great solution.

  • Scott Jacobs
    5 April 2016 at 2:24 pm - Reply

    For the record, when dealing with someone who speaks like the former cop, suggesting they only think the way they do because they’re mad over their wife having been fucking the gardener for the last year ends about as well as you would suspect it would…

  • Racism Isn’t A Reason For A Jury To Convict | Simple Justice
    7 March 2017 at 9:45 am - Reply

    […] The Supreme Court split 5-3 on whether the “no impeachment” rule for jurors remains constitutional when a juror is overtly racist during deliberations. The facts of the case were quite flagrant, with a juror imputing strong racial animus* into the jury’s deliberations. […]