Bias in Jury Deliberations: A Discussion of Pena-Rodriguez

PJ’s Jason Baldwin recently sat down with Steve Braga to discuss the United State Supreme Court’s March 2017 decision in Pena-Rodriguez v. Colorado. A 1981 graduate of Georgetown University Law Center, Stephen Braga is a criminal defense attorney who has been repeatedly recognized as one of the top lawyers in the country by multiple organizations. He has worked on multiple high-profile wrongful conviction cases. He is also a professor at the University of Virginia School of Law and board member of Proclaim Justice.

Jason Baldwin: In March 2017, the Supreme Court announced its ruling on the Pena-Rodriquez v. Colorado case. It is a sexual assault case, but ended up being an important Supreme Court case because it got into what is normally sacred ground: the jury. The court ruled if a juror has made overtly racist comments then that could be considered part of their reasoning in reaching a verdict and a case can be overturned as a result. Is that correct?

Stephen Braga: Absolutely correct. Pena-Rodriguez is a landmark decision. You can tell by the dissent from Justice Alito in particular, but also from Justice Thomas, that it was sort of bitterly decided at the Supreme Court. The majority opinion was written by Justice Kennedy. Most of the opinion actually talks about the general rule, which is that ever since Lord Mansfield in common law England a long time ago, jurors have never been allowed to be questioned about why they reached their decision. I think the first case discussed in Pena-Rodriguez adopting this rule by Lord Mansfield back in common law England is the jurors said they decided the case by lots. Basically tossing a coin. And Lord Mansfield said it doesn’t matter. We can’t look into that. Once the jurors are sworn we should never question why they did what they did, otherwise we’ll always be challenging it. And so the common rule that was codified in our general system rules of evidence is that you cannot introduce after a juror verdict evidence of why the jury decided the way they did.

Two exceptions in the rule: One exception is if extraneous influence comes before the jury, such as an outside third party threatening the jurors. We all should know about that. And the second thing is if somebody brings evidence to jurors that wasn’t introduced at trial. And there are simple cases on this all the time, where the jury has a term they don’t understand. It may be “consciously” or “willfully” and they use a dictionary to look it up, but the dictionary was never admitted into evidence. So those exceptions, outside influences and evidence that wasn’t before the jury, we’re allowed to look at. But never in the history of the law before Pena-Rodriguez could a juror’s bias be looked into. It’s a landmark decision.

JB: A very good landmark decision. You mentioned that the exceptions are extraneous information and an outside influence but what kind of timeline could this been done in?Could it be during the trial if an attorney became aware of these things?

SB: Yes – this is an absolutely great question. If the attorney has some awareness of this before the verdict then then counsel could bring it to the judge right away. And the reason for this in the common law rule that we don’t inquire into why jurors decided what they did is designed to protect the integrity of the verdicts. So, if you can bring it to the attention of the court before verdict then that is okay. That doesn’t infringe the policies of the rule. The principal is that we don’t want to second guess, or question jurors after the verdict. So, if you are aware of this as an attorney before the trial is over. Let’s say you see a juror walking back into the jury room with a newspaper article about the case. That’s not supposed to happen. Jurors are told not to read the news about the case. If you as an attorney see it, that’s external evidence that shouldn’t be in the jury room and that fits the exception and you’ve got to bring it to the attention of the court right away.

JB: What kind of motion would that be? Would you have to make a formal motion in front of the judge?

SB: Yeah, it would be a Motion to Inquire Into Possible Juror Misconduct. There is not a sort of ready to form motion for this. It does not happen that often. But you might see, for example, jurors talking about the case in the courtyard before lunch. You might see a marshal talking to a juror about the case and overhear something. Then right away you would actually approach the judge, usually off the public record, maybe back in chambers, maybe up at the front of the bench if you were in trial and say, ‘your honor, I’ve just become aware of potential improper evidence, potential improper contacts with the jurors I’d like the court to make an inquiry.”

Typically what the court does in those types of situations is evaluate whether it is serious enough to warrant an inquiry. If it really is something improper the court will then call the jurors and question them and talk to them and ask them about it. If something really is there then there might be a mistrial and if there is nothing there the case will go on.

JB: Right. So, this is all during the trial. But in the Pena case it is all post-conviction, after the trial.

SB: Right.

JB: How did this case come about if this is supposed to occur before the trial’s verdict?

SB: Some jurisdictions have rules that jurors are allowed to talk to the lawyers after the verdict if they want to. They are never required to.

JB: Right.

SB: Lawyers are never supposed to harass the jurors after the verdict, but jurors are allowed to talk to them if they want to. That was the case in Colorado where this case originated. After the trial was over, after the verdict, the defense lawyer did a really good thing. He went back to the jury room to talk to the jurors. Now, you can talk to them about anything. It can be “hey, what did you think of my closing argument?” “What did you think of my cross examination skills?” “What did you think of the government’s witnesses?” “What did you think was missing in the defense?”

You can talk about anything. But in this case what makes it timely, at least more timely than most post-conviction challenges which usually happens years later, is right after the verdict was over two of the jurors stayed back as I recall, and wanted to talk to the lawyer and wanted to tell him was that one of the jurors seemed to have an anti-Hispanic bias. They stated he said things in deliberations that this defendant, Pena-Rodriquez, did it because he was a Mexican man, and Mexican men are aggressive with their women and that they take what they want. Terrible racist things like that. They brought it to the defense lawyer’s attention and he brought a motion to the judge.

JB: Was it just enough for him to have those beliefs or did it have to reach a threshold where his beliefs encroached upon the minds of the other jurors?

SB: So, this is the ultimate question, the ultimate question you’ve asked Jason, goes to the relief. Does Pena-Rodriguez get a new trial because of this. There are two stages. Stage number one is: do you have enough evidence as a defense lawyer to make that motion to the judge and then get a hearing and maybe get a new trial. Whether you get a new trial or not you have to show that somehow the jury’s verdict was compromised. If you can show that even one juror was biased and ruled on the basis of bias you will get a new trial.

But you can also imagine a scenario where somebody made some racist comments and almost all the jurors blew him off and didn’t believe him. That person wasn’t  necessarily biased in their vote. Although the kinds of things that were said in Pena-Rodriguez, I think it would be hard to conclude that at least that juror wasn’t biased. And if one juror is biased on an impermissible ground, in this case race (or ethnicity as the court calls it), you should get a new trial.

So, in the first step you’ve got to have enough to get the court to look into it. And before Pena-Rodriguez the court wouldn’t even look into it. They would say no, that’s just against the common rule that we don’t impeach jury verdicts, we’re not going to look into the allegation that this one juror was articulating racist comments. But after Pena-Rodriguez, this case opened up the door for a judge to say they will now look into it. When there is an allegation of racism I have to look into it and see whether it quote unquote infected the verdict.

JB: Right, and we talk about bias and specifically racial bias. This case calls out racial bias because of the pernicious history in America of racism from the slave days to the Dredd Scott days and all the way to now where we have a certain class, a certain race subjugating another race and so they’ve illustrated the importance of that. But there are other biases just as deadly, are there not?

SB: Oh absolutely. So, this is one of Justice Alito’s points in the dissent in Pena-Rodriguez. Justice Kennedy and the majority opinion does a very nice job of saying that this is a limited case about racial bias. And he does exactly as you said Jason, he grounds his decision in the fact that race is the most pernicious kind of bias in our system. Its been there forever in this country. We’ve always struggled with it from the days of slavery and so therefore we’ve gotta be really careful to avoid any injection of racial bias into our criminal justice system. We all would agree with that. Everybody sensible would agree with that.

The question raised by Justice Alito is if race is good enough to allow us to inquire into a jury’s verdict, then what about allowing in proof of gender bias? Let’s say in a case where a female is the defendant, some male chauvinist jurors might state well she must have done it because she is a woman. That has the same impact on a jury verdict as Pena-Rodriguez’s racial statement but it is not race, now you are talking about gender.

JB: Correct.

SB: Now what if you take it to the next step and talk about religion? Say you have a Catholic defendant and a juror who was not a Catholic says he must have done it because he’s a Catholic. Now we’re talking about religion and not race or gender. No one should go to jail because they happen to be a woman. No one should be convicted because they happen to be a Mexican. I tend to think that Justice Alito is right that Pena-Rodriguez will open up all those forms of potential bias as being permissible subjects for attacking jury verdicts after the fact.

JB: Do you hope it does?

SB: I hope it does because as a lifelong defense lawyer I think the integrity of our criminal justice system depends on the evidence at trial supporting the verdict. The jurors are told repeatedly they are only to judge this case based on the evidence presented in this court before you not on any prejudice, not any sympathy, not any passion. We shouldn’t look the other way and pretend that prejudice that will undermine the integrity of the verdict isn’t happening in any of these cases. Justice Alito identified the cost to considering biases, which is that juries might may become worried about if they are going to be second guessed and questioned about their decisions. But it seems to me that when you balance that cost benefit, the potential costs of undermining the juries’ independence are outweighed by the benefit of eliminating whatever bias we can in the system. So I am in favor.

I think it gets tricky though. We’re on this ski slope and we’re on top of the mountain. It’s racial bias that we get under Pena-Rodriguez, but now we slide down the mountain a little bit and now we have gender bias. Is that good enough? Slide down the mountain a little bit further and we get to religious bias. Is that then good enough? I just told you I think all of those are good enough, but let’s go one step further. Let’s say we’re talking about sexual orientation bias and all of a sudden somebody in the jury room says I think that the defendant should be guilty because he’s gay. Sexual orientation may or may not be a fundamental right, or a suspect class, because it’s all kind of still murky as far as equal protection under the law; it’s all new. In my mind, as a defense lawyer defending that gay man, I would want that gay man not to be convicted because he’s gay. If he’s convicted, I would want it to be based upon the evidence. But as you slide further down this slippery slope you can get to points where I’m not sure that’s the right case. Let’s say somebody says I’m gonna convict Jason Baldwin because he’s got a beard and I think bearded people are not trustworthy. I’m not sure that’s good enough. So I would limit it, or be in favor of limiting it, to anything that is a fundamental right or a suspect class of people. But at some point there are sound reasons for the general rule that we don’t want juries always to be subject to having their verdicts reopened after the fact.

JB: Very good. Anything you would like to add?

SB: Pena-Rodriguez, if I’m remembering it correctly, was a 5-3 decision. We have a potential new Supreme Court nominee coming up under the Trump Administration. Assume with me for just a moment that Supreme Court nominee might be in the conservative camp of Justices Roberts, Thomas, and Alito, who dissented in Pena-Rodriguez. Then all of a sudden its a 5-4 decision. Justice Kennedy wrote the decision in Pena-Rodriguez and he is sometimes predicted as the next Supreme Court Justice to retire. If he gets replaced by a conservative justice, it may be that Pena-Rodriguez gets very limited. It’s difficult, and the Supreme Court takes pains not to reverse its decisions, so Pena-Rodriguez will probably stand as good law. But a new conservative majority on the Supreme Court could say that it only going so far as race. We’re not going to go down this slippery slope to include gender or religion or any of the other things we’ve talked about today. It could be limited by a more conservative Supreme Court majority, which may happen in the Trump Administration, or it may not. We’ll see.

JB: Thank you very much, Mr. Braga. Let’s hope someday the Supreme Court will see the importance of taking a stand against any and all bias in the land.