Miguel Angel Peña-Rodriguez is a victim of discrimination; that, nobody denies. Nine years ago, two teenage girls accused him of sexually assaulting them in a Colorado public bathroom, and a jury convicted based exclusively on the girls’ own testimony that Peña-Rodriguez was their attacker. No physical evidence linked Peña-Rodriguez to the crime, and he insisted he had been misidentified. The discrimination came later, when Peña-Rodriguez, who is Hispanic, learned from a distraught juror that the deliberations had been poisoned by racism. One juror, a former police officer, had declared that, based on his professional experience, he knew that “Mexican men” have “a sense of entitlement” and a “bravado” that makes them think they can “do whatever they want” with women. When he was on patrol, he told the jurors, “nine times out of 10,” Mexican men were guilty of “being aggressive toward women and young girls.”
If Peña-Rodriguez had discovered these comments before the jury reached a verdict, he could have notified the court and halted the proceedings. But the information didn’t emerge until after his conviction. That created a problem: Like many states, Colorado forbids jurors from testifying about juror statements made during deliberations—even when a defendant needs those statements to challenge the validity of his conviction. On Tuesday, Peña-Rodriguez’s attorneys challenged that rule at the Supreme Court, arguing that it abridged his right to trial “by an impartial jury” under the Sixth Amendment. Now the court has the unenviable task of squaring two contradictory values: the sanctity of secret jury deliberations and the constitutional right to a fair trial.
Let’s start with the easy stuff: Everyone agrees that the racist juror poisoned deliberations with his outrageous remarks and probably deprived Peña-Rodriguez his right to a “fair trial” in theory. The question isn’t simply whether Peña-Rodriguez has a right that was violated; it’s whether that violation has a remedy. Colorado law bars him from putting jurors on the stand to testify that deliberations were biased, effectively denying him access to post-conviction relief. His argument is straightforward: When evidence suggests a jury was prejudiced by racism, the right to an “impartial jury” overrides any law protecting jury secrecy.
When superhuman criminal defense attorney Jeffrey Fisher approaches the lectern to defend Peña-Rodriguez, Chief Justice John Roberts sounds wary of a Trojan horse. He wants to know why the court should draw the line at race and allow other forms of bias to go unchecked. What about religious bias? Anti-Semitism? Islamophobia? Sexism? And hey, what about (wait for it) homophobia?
“Somebody gives a bigoted speech in the jury room about sexual orientation,” Roberts elaborates, “and how particular types of people are more likely to commit crimes like the one before them. Is that sufficiently odious” to pierce the secrecy of deliberations? (Note: This may be the first time Roberts has ever evinced a concern about anti-gay discrimination.)
Fisher notes that the court has occasionally established safeguards against courtroom racism without extending the rule to other forms of bias. Justice Samuel Alito snaps that he’s “not being very helpful to the court” with his answers. Justice Sonia Sotomayor steps in to help.
“I always thought the most pernicious and odious discrimination in our law is based on race,” Sotomayor says. Fisher agrees. Sotomayor continues: Why can’t the court limit any rule it declares to racism when it’s “the most pernicious thing in our justice system?”
Fisher, naturally, says it could, but that lets Roberts return to his opening sally: “You think it’s odious to have the same sort of discrimination against someone because he’s a Muslim or practices Islamic faith? … Is that not sufficiently like racial discrimination that it should be carved out?”
Alito then jumps back in for good measure: “Race is different for some purposes. But why is it different from other things for Sixth Amendment purposes?” How can a jury that’s biased because of racism be constitutionally distinguished from, say, a jury so indifferent to justice that it reaches a verdict by flipping a coin?
Fisher actually has a pretty good answer to that one. He explains that the jury trial right is a fundamental component of due process and that the court has read due process to be “infused with the values of the Equal Protection Clause.” Since that clause was designed to address “the particular harms of racial discrimination,” shouldn’t its “values” be “read into” the jury trial right?
But Alito, who visibly clenches his jaw whenever Fisher speaks, isn’t buying this highfalutin theorizing. He has larger concerns.
“In this case, we have a very blatant statement,” he tells Fisher. “But let’s consider the standard that now applies on a lot of college campuses as to statements that are considered by some people to be racist. What would happen if one of the jurors has the sensibility of a lot of current college students and thinks something that’s said in the jury room falls into one of those categories was a racial comment?”
Shorter Alito: Sure, extreme racism in the jury room is horrible—but what about politically correct college students? Aren’t they pretty bad, too?
Justice Elena Kagan hops in to point out that the exact same issue arises if a juror tips off the judge before the verdict, which is undoubtedly permissible, so Alito’s question is pretty silly. Fisher agrees, noting that judges could conduct the same analysis they would in a typical juror bias case. He sits down with four votes in his pocket. Is a fifth on the table?
Colorado Solicitor General Frederick Yarger takes to the lectern to defend the sacrosanct secrecy of jury deliberations and promptly watches his odds of winning float away. Justice Anthony Kennedy, who has stewed in silent pensiveness up till now, leans forward and asks whether Yarger would make the same argument in a capital case—“that the person can be executed despite what we know happened in the jury room?”
Yarger, who is weirdly caught off guard by this eminently predictable question, answers that “this isn’t a capital case” (we know!) and “that might raise different issues.” Kennedy sits back and we all watch his vote drift toward Fisher’s table. He asks Department of Justice attorney Rachel Kovner, who is defending Colorado’s position, the same question 20 minutes later. She asserts that “under the Eighth Amendment [which prohibits cruel and unusual punishment], different sets of rules apply, and there may be different considerations in that context.” That’s a decent answer, but it would be hard for the justices to explain why the death penalty is severe enough to justify calling out racist jurors but life imprisonment isn’t. Then Kovner says that courts should be especially hesitant to puncture the secrecy of jury deliberations when racism might be involved, because “you’re talking about a very sensitive allegation that racial bias occurred.” Kovner has a tough job, but that just doesn’t make any sense to Kennedy (or anyone).
“So the more insidious the evil,” Kennedy snaps, “the more caution we should have in inquiring of the jury?”
Kennedy’s remaining concern is that allowing post-conviction juror testimonials might overwhelm the system with convicts who want a second bite at the apple by alleging racism during deliberations. But it turns out that 18 states already allow defendants to question allegedly racist jurors in order to impeach their convictions, and the floodgates haven’t burst open. With his vote safely in Fisher’s pocket, it looks like champagne (or at least a post-conviction hearing!) is in order for Peña-Rodriguez.
As arguments draw to a close, the lingering question is how Roberts will play this one. The man has banked his judicial career on colorblindness, insisting that the law must be oblivious to race—even when it’s trying to help underprivileged minorities. Yet he has often affirmed the validity of conservative laws that feign neutrality but are obviously motivated by racial discrimination.
Near the end of arguments, Fisher sums up the government’s position: “The court’s duty here is to choose the lesser of two evils”—permitting jury discrimination or failing to protect jury secrecy. But “racial bias,” Fisher says, “is never the lesser evil.” Roberts sometimes recognizes that truth. And if he doesn’t in this case, how can he ever again insist with a straight face that he’s America’s chief justice of colorblindness?