High Court Weighs |Racial Bias Among Jurors

     WASHINGTON (CN) — The U.S. Supreme Court heard arguments Tuesday over whether a juror’s racist comments while deliberating a Colorado harassment case made the trial unfair.
     In 2007, two teenage girls identified Miguel Pena-Rodriguez as the man who allegedly made sexual advances toward them in the bathroom of a horse-racing facility where he worked.
     Pena-Rodriguez faced charges of attempted sexual assault on a child, unlawful sexual contact and harassment.
     After a three-day trial, a jury found him guilty of unlawful sexual contact and harassment. Two weeks later, he filed a motion for juror contact information, claiming that some jurors “used ethnic slurs in the course of deliberations,” according to court records.
     One juror identified as M.M. in court records claimed in an affidavit that another juror, H.C., said, “I think he did it because he’s Mexican and Mexican men take whatever they want.”
     M.M. also alleged that H.C. “made other statements concerning Mexican men being physically controlling of women because they have a sense of entitlement and think they can ‘do whatever they want’ with women,” according to court records.
     Another juror, L.T., corroborated M.M.’s allegations and claimed H.C. “believed that [Pena-Rodriguez] was guilty because in his experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women,” court records show.
     The trial court refused to consider the affidavits, finding that Colorado rules of evidence barred the inquiry into H.C.’s alleged bias during jury deliberations. A divided Colorado Court of Appeals affirmed, as did the state’s highest court.
     But Colorado Supreme Court Justice Monica Marquez, joined by Justices Allison Eid and William Hood, dissented, finding the right to a fair trial is infringed by a racially biased juror.
     “The one question is whether identity-based harms are different than other kinds of unfairnesses,” Justice Elena Kagan said Tuesday as Pena-Rodriguez’s attorney, Jeffrey L. Fisher of Stanford, Calif., argued they are.
     The case was before the U.S. Supreme Court on Tuesday for oral argument, which started at 11:08 a.m. local time and lasted just under an hour.
     By Fisher’s estimation, which the state of Colorado disputes, 20 jurisdictions already automatically throw out a verdict when racial bias is proven in the jury.
     The state and the federal government, appearing as a friend of the court, argued this upsets the confidentiality and sanctity of jury deliberations. They claim only six jurisdictions throw out cases for racial bias in the jury.
     “Racial bias is a real problem that the United States is committed to eradicating,” said Rachel Kovner, assistant to the federal solicitor general. “But there are ways to address that problem without undermining structural protections of the jury system that have withstood legal challenges for hundreds of years.”
     Justice Sonia Sotomayor challenged their assertion that these jurisdictions are more vulnerable to jury harassment by attorneys looking to clear their clients.
     “Is there evidence of some run-amuck sort of number of motions filed in any particular case based on racial discrimination, rampant jury harassment, any of the evils that you are predicting in your brief?” she asked, to which Colorado Solicitor General Frederick R. Yarger responded by citing a single case in Massachusetts.
     “In those jurisdictions, the six jurisdictions that adopt the extreme-cases rule, though, even when there is a very disturbing statement and surfaces post trial, the courts still say, ‘Well, the importance of the no-impeachment rule still applies here, and we’re not going to create an exception,'” Yarger argued.
     When Fisher took the stand for rebuttal, Justice Samuel Alito renewed his insistence that the attorney state whether a decision in Pena-Rodriguez’s favor in this case would apply to statements indicating religious, gender, political or other biases among jurors.
     “I’m trying to be forthright with the court by saying I acknowledge there will be other hard questions about identity, as Justice Kagan put it,” Fisher answered. “I’m not representing somebody today that has that case. And I think the court would want full briefing on it.”
     But racism is such a serious problem, Fisher argued, that it should be placed ahead of the public policy concerns in this case.
     “I respectfully submit that the court has never refused to remedy intentional race discrimination in the criminal justice system for fear of having to address other questions down the line,” Fisher said.
     It is unclear when the Supreme Court will make a decision in the case.

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