After hearing oral argument in five cases last week, the Supreme Court is scheduled this week to take up argument in three more cases before recessing until October 31st. The most interesting of the two cases is Pena-Rodriguez vs. Colorado.
In recent years, the Supreme Court has shown a disdain for any taint of racism in court proceedings ruling on items such as jury selection, prosecutor comments, sentencing hearings, and judicial instructions to juries. This case involves the private deliberations of juries.
To fully understand the case, we have to go back to 1785 and Great Britain when the “Mansfield rule” was established at common law and adopted in this country. In fact, it has been incorporated into the Rules of Criminal and Civil Procedures. It basically states that the privacy of jury deliberations is of the greatest importance. Jury verdicts cannot be set aside by anything that occurs during deliberations EXCEPT under certain sets of circumstances. That is, a member of a jury cannot rat out another jury member for anything that was said or anything that happened during deliberations. However, if a third-party member overheard or saw something, then their testimony and accusations were fair game to set aside a verdict.
A member of a jury can testify against another juror in three distinct cases: (1) if they relied on evidence outside the record, (2) if the jury foreperson wrote the wrong verdict on the form, or (3) in any instance of juror misconduct before a final verdict is rendered. None of these exceptions apply in this case.
Pena-Rodriguez was charged with entering a female bathroom at a Colorado race track and groping two young women. However, he had an alibi stating that he was with someone else when this occurred and that the young girls in question had even misidentified him as the culprit. During deliberations, the jury reported that they could not reach a verdict. The judge sent them back into deliberations and asked them to try harder to reach a verdict. They eventually acquitted him on the lone felony count, but found him guilty on three misdemeanor counts under Colorado law.
After the trial, two jurors came forward and informed his defense counsel that another juror had made racist comments during the second round of deliberations. This juror, based on his previous law enforcement background, said Pena-Rodriguez was guilty because “he’s Mexican and Mexican men take whatever they want.” When he was confronted by other jurors that the defendant had an alibi, he noted that Pena-Rodriguez’s friend was “illegal” and must be lying. It was established at the trial that his friend was in the country legally.
Upon appeal in light of this information, the Colorado appeals court ruled that despite what happened during deliberations, criminal verdicts should be final. The Mansfield rule is needed to shield jurors from harassment by defense counsels should a guilty verdict result. Pena-Rodriguez argued that although these policy considerations were laudable, they cannot overcome his Sixth Amendment right to a fair and impartial jury. Of course, the British Judge Mansfield did not have to contend with a Sixth Amendment in 1785.
The Supreme Court has consistently upheld the Mansfield rule in previous cases. In 1987, juror misconduct that included possible drunkenness and drug use during trial recesses, although abhorrent, was not enough to overcome the Mansfield rule. Instead, Sandra Day O’Connor, the author of the opinion, stated that if every jury verdict was second-guessed after the fact, it would collapse the trial-by-jury system and undermine the justice system. Instead, she argued, other means to detect potential juror bias should be used such as pre-trial screening and observation during testimony. She also noted that any juror can come forward and note juror misconduct or bias BEFORE a final verdict is rendered.
Two years ago, the Court again upheld the Mansfield rule. In that case- a civil case involving a car accident- one juror swore that another juror injected her daughter’s accident into the deliberations. During jury selection, this particular juror was asked if there was any reason they could not be impartial and they replied in the negative. The Court decided that the no-impeachment rule did not violate the Sixth Amendment. Hence, despite this injection of her daughter’s accident during deliberations, the final verdict stood.
Both these cases did not involve a potentially racist comment. One involved alleged juror misconduct and the other involved bringing up a personal anecdote. In that case- Warger vs. Schauers- the Court did leave themselves a possible exception in a footnote which stated : “There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.”
The question then becomes whether these statements made in this case are an example of “juror bias so extreme” that the Supreme Court should overrule the Colorado Supreme Court? The question needs to be answered since different Circuit Courts of Appeal view the importance of the Mansfield rule differently. In a brief filed by special interest groups, they cite a litany of apparently racist comments made during deliberations. Undetermined is how many actually led to guilty verdicts. For example, in one case a jury stated that “all Indians get drunk and when they get drunk they get violent.” On the surface, it seems like a racist comment, but something missing in the entire argument is how much sway that comment had in determining the outcome. Did the other 11 jurors ignore it, or did they consider this as biased truth and then factor it into their verdict?
One can understand the confusion this can cause if every utterance during jury deliberations is later questioned. An innocent comment made off the cuff could conceivably be perceived by a single other juror as racial bias and animus. Is every juror to be polled after a verdict is rendered to determine whether anything that can be construed as a racial slur was mentioned during deliberations? And if so, how much importance was placed on that alleged racial slur or bias in reaching the final verdict?
This is the danger that Sandra Day O’Connor warned about in that 1987 case and it’s potential to undermine the sanctity of jury trials and the equally important deliberation process. In the end, the Court may just adopt the Las Vegas attitude: what happens in the jury deliberation room stays in the jury deliberation room.