Oct
19

The Race Card Rears Its Head Again

Judges, despite their robes and the trappings of majesty — who else enters their workplace to the sound of a uniformed lawman commanding “All rise”? — are just like the rest of us. They are often motivated by high i­deals, but, being spun from the same mortal clay as we lesser mortals, their motives can often be venal, even petty.

 Most judges crave dispositions. They want the cases on their list of things that need doing, their dockets, to move. Getting between a judge and a closed file can be a risky thing to do. Judicial administrators are closet statisticians, keeping track of who moves cases and who doesn’t.

Hence, the importance of finality, of not disturbing a case that has finally ended with a judgment. Courts will go a long way toward keeping the lid down on a closed case. The United States Supreme Court has even gone so far as to permit the execution of prisoners about whom new evidence of innocence has arisen. Finality trumps innocence. Where’s the justice in that?

This week, the Supreme Court heard another case that challenges the court’s preoccupation with finality. It involves a man named Miguel Angel Pena Rodriguez. He was tried in Colorado on sexual assault charges. During deliberations, one juror apparently said to the others: “I think he did it because he’s Mexican, and Mexican men take whatever they want.”

Fellow jurors swore under oath in statements that their fellow juror had commented on Mr. Rodriguez’s national origins as the jury decided the case. Was Mr. Rodriguez deprived of a fair trial because of this comment?

As a general rule, the courts will not consider evidence about what goes on in jury deliberations. The federal rules of evidence go so far as to bar any evidence of a jury’s deliberative conduct for purposes of “impugning the integrity” of a verdict.

So what to do when a court becomes aware of a rogue jury or a rabid juror?

Should Mr. Rodriguez get a new trial because a juror uttered ethnic nonsense?

It’s unclear just how this juror made it onto the panel in the first instance. In every state of the union, jurors are questioned before being permitted to sit on a jury. The purpose of the questioning is to see whether the juror can be fair and impartial about the case set for trial. I’d be stunned if this potential juror was not questioned about his racial and/or ethnic biases.

But jurors, like judges, and like the rest of us, have a casual acquaintance with truth: We tell it, often enough, but all too often we color the truths we speak in shades corresponding to the light in which we want to be seen. It’s a rare person who will admit to identity bias, even in an age of identity politics.

So should Mr. Rodriguez be given a new trial because there was an infection in justice’s operating room?

Doing so would require the court to abandon the lip service it pays to the secrecy of jury deliberations. Judges guard what they call the “province of the jury,” its sole responsibility for deciding the facts of a case. To intrude by permitting a court to consider evidence of secret jury proceedings is a bridge the courts claim not to want to cross.

It’s sort of silly, really, to create this bridge in the first place.

Judges police the conduct of jurors all the time. If the juror had made the comment about Mr. Rodriguez’s ethnicity during the presentation of evidence, the court would, without hesitation, have hauled the juror into open court, put him on the witness stand, and asked him about it. I’ve seen judges question not just jurors who have made errant comments, but other jurors too, just to make sure that they could still be fair and impartial.

What magic line distinguishes comments made by jurors in private before deliberations from those made after the jurors are given the case to decide? Shouldn’t the courts have the responsibility to strike out at bias whenever it becomes obvious?

It would make sense to abandon the rule in favor of deliberative secrecy altogether once a court is presented with evidence of bias. Sure, that’s an awkward rule — if jurors are sworn to secrecy about deliberations, don’t jurors who complain about their colleagues break the rule? Truth and justice aren’t joined at the hip.

Arguments this week in the Supreme Court suggest the court is unwilling to walk away from this silly rule about secrecy. Instead, some justices seem prepared to make a bad situation worse: Why not permit claims of racial bias to advance? “I always thought the most pernicious and odious discrimination in our law is based on race,” Justice Sonia Sotomayor said.

But what of religious bias — isn’t that bad, too? Chief Justice John Roberts asked.

Even Supreme Court justices cannot avoid the new national cancer: everyone, everything, is reduced to their identity. God spare us the injection of identity politics into how we evaluate verdicts.

All sorts of biases can infect a jury. I’ve had jurors removed from a case because they liked cops, disliked gay folk, were hostile to people of color or simply because they did not think they could be fair and impartial to a stranger.

A criminal and civil justice system that truly cared about the right outcome in each and every case would not draw arbitrary racial and ethnic lines on the courtroom floor.

Demographics seem to drive our conceptions of justice, not neutral visions of simple human integrity. As the population browns and Caucasians approach minority status, the high court now openly and without embarrassment discusses rules of law intended to create special rules for when to permit courts to review potentially errant jury verdicts.

The Supreme Court should avoid creating special rules for special classes of people. The more honest course would be to put aside the judicial fetish with finality in favor of rules designed to see that justice is done.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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