Equal protection and the Sixth Amendment

I've never been on a jury and now in old age and retirement do not expect ever to be on one. But I have studied their workings and the long struggle of women to serve on them. When I was a public defender, I tried cases to juries in D.C., wonderful mixed groups who took the work very seriously. Indeed most people find serving a fascinating and worthy experience, and feel that they have made an important contribution to our government, to our society.

I'm not sure the Colorado jury inPeña-Rodriguez v. Colorado, 2017 DJDAR 2037, a sexual assault case where the victims were teenage girls, felt so good about their extended deliberation (over 12 hours, ending hung on the felony charge, convicting on three misdemeanors). During those long hours, an authoritative man, a former law enforcement officer, made several openly racist comments about the dangerous tendencies of Mexican men. The defendant and his only witness were Mexicans. The same juror also referred to the alibi witness as untrustworthy because he was "illegal."

After the verdict was returned two of the jurors spoke with a defense lawyer about the tainted nature of the deliberation, and gave their affidavits swearing to it. The general rule is that what happens in the jury room stays there, but a number of jurisdictions make an exception when racial bias is raised. Colorado does not have such an exception; the trial judge rejected Peña-Rodriguez's claim, and the Colorado higher courts affirmed.

Professor Robert Weisberg, my colleague who is an expert on criminal procedure, has written a brief piece on the legal issues involved, making it clear and keeping it simple. With his permission, I'll quote him at length. The issue which reached the U.S. Supreme Court "was whether states arerequiredto add this exception [for racial bias], that is, whether the federal Constitution so demands. The Supreme Court has now said yes, by an all-too-familiar 5-vote majority (only 3 in dissent because of the vacancy), with Justice Kennedy writing for the Court.

"The Court's decision will make moral sense to many, but it also illustrates how race can challenge the usual boundaries of constitutional law. When we think of race under the Constitution, we think of the Equal Protection clause as the obvious vehicle for rooting out prejudice and discrimination. But the Equal Protection clause is often an ill fit in the legal context, because establishing an Equal Protection violation requires proof of intentional governmental discrimination. So sometimes the Court at least considers finding some other doctrine to address racial prejudice, with uneven results. ....

"The most famous twist is theBatsondoctrine, arising in 1986. The prosecutor used a peremptory challenge to knock out a potential juror because of the potential juror's race. And the prosecutor is an intentional state actor. But isn't thejurorthe one who suffered the intentional discrimination, not the defendant? Well the answer may seem to depend on whether the defendant is of the same race as the juror, but as the very complex developments in post-Batsoncases have made clear, that does not matter. Any defendant is granted standing to make the claim for the juror, through the legal magic of so-called 'jus tertii' standing. Somehow when racial prejudice taints a criminal conviction, the Court will seek, and often find a way.

"So back toPeña-Rodriguez. Was there intentional state-authorized racial discrimination? Should we say the racist juror was a state actor? Or that after the facts were revealed the state, through the court system, intentionally tolerated the juror's racism? Those questions are tricky, or even metaphysical. But no matter, because Justice Kennedy did not rely on the Equal Protection clause — he turned to the Sixth Amendment right to a trial by an impartial jury. Racial prejudice is surely partiality, but there are lots of other types of partiality, which do not receive this level of constitutional scrutiny. .....

"[InPeña-Rodriguez] the Sixth Amendment was found supple enough to offer Peña-Rodriguez relief, and will do so for defendants suffering similar harm, at least where the juror prejudice is so egregious and material. But that leaves another question. Justice Kennedy could be accused of sneaking in an Equal Protection holding under the mask of the Sixth Amendment. If so, why limit the holding to race? Other classifications — religion, gender — have purchase under the Equal Protection clause. Or what about a juror who convicts on the basis of the defendant's constitutionally protected political views — would the Sixth Amendment somehow draw on the First Amendment? The Court avoided addressing any such possible extension in this case. But if the Court ultimately wants to draw the line at race, it will be saying that because racial prejudice is the defining tragedy of American history it demands special recognition, and if that special recognition requires some, shall we say, flexibility in constitutional reasoning, so be it."

Weisberg, "On Juries and Racism and thePeña-Rodriguez v. Colorado Decision," SLS Legal Aggregate, March 8, 2017.

The fight to make the jury fair has a varied and noble history. I was proud but not surprised to learn that the two jurors who dared to report the egregious prejudice were female.SeeBarbara Allen Babcock, "A Place in the Paladium: Women's Rights and Jury Service," 61 University of Cincinnati Law Review 1139-80 (1993).