Racist Jurors Watch Out!

by Jeffrey Abramson

Jeffrey Abramson, Professor of Law and Government, University of Texas at Austin, is theauthor of We, The Jury: The Jury System and the Ideal of Democracy (Harvard University Press). An earlier version of this article was previously published by the Dallas Morning News.

What happens if, after a jury convicts a defendant, one or more of the jurors alert the judge or lawyers that serious misconduct occurred in the jury room? The answer, in a major Supreme Court decision this past week, is that it depends on what the wrongdoing was.

In 1987, jurors complained that several of their fellow panelists were using drugs and alcohol, and often asleep, during the trial. Nonetheless, the Supreme Court upheld the defendant’s conviction, citing centuries-old principles that prevent courts from invading the confidentiality of privacy jury deliberations. We want jurors to have the independence it takes to converse freely. That independence is lost, if jurors know that judges can investigate their behavior. While it is bothersome to find that jurors were high on drugs, the Court concluded there was no evidence that such wrongdoing was common enough to change the traditional prohibition from reviewing what went on in the jury room.

This prohibition dates back to the greatest jury trial of all – the acquittal in 1630 of William Penn on charges meant to suppress the Quaker religion. When the trial court punished the jurors for perjury, the highest Court in England ruled that no court can ever second-guess a final jury verdict of acquittal, since it is impossible to stand in the jurors’ shoes or see the evidence with their eyes.

What about when the misconduct involves racial or ethnic prejudice? That’s different, the Supreme Court correctly ruled last week. In 2010, a Colorado jury convicted Miguel Angel Pena-Rodriguez of sexual assault. Following conviction, two jurors submitted an affidavit reporting that a fellow juror blatantly argued “the defendant was guilty because Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” Following the Supreme Court precedent set in the 1987 case, the Colorado Supreme Court upheld Mr. Pena-Rodriguez’s conviction.

The Supreme Court reversed. Even centuries-old jury traditions have to give way to the paramount importance of rooting out racial prejudice from the criminal justice system. As opposed to the occasional misconduct of rogue jurors using drugs during a trial, anyone familiar with the history of the American jury knows that racial bias is “a familiar and recurring evil.” In the past decade, federal courts have dealt with alleged remarks in the jury room against Native Americans (“they all drink”), Arabs (“they all look alike” when dressed in their “costume”), and African Americans (“I guess we’re profiling but they cause all the trouble”). Any rule or tradition that keeps courts from protecting jury trials from such prejudices would make a mockery of the Constitution’s guarantee of trial before an “impartial jury.”

In the current political climate, the Court’s call to recommit the nation to eliminate racial prejudice is welcome. But will it make a difference? The Court limited its decision to cases of overt or explicit bias of the sort Mr. Pena-Rodriguez faced. The justices suggested more tolerance for “off-hand” stereotypical remarks, without providing guidance as to when stereotypes morph into prejudice. Clearly, the Court is worried about chilling the rough and tumble exchanges we might want among jurors. Only when judges are convinced that racial bias was a “significant factor” influencing a juror’s vote should they throw out the verdict.

The Court also limited its decision to instances of “racial or ethnic” prejudice. But what about remarks expressing religious bias, or prejudice against gays or lesbians? The Court cited historical reasons for singling out race as a special case. But in today’s world, who can say a jury exposed to these other forms of prejudice was impartial? Once again, the Court did not wish to open Pandora’s Box and start routinely investigating jury deliberations. It wants both to preserve our general faith in the jury system while dealing with the particularly egregious effects of race on the administration of justice.

This may be a hard combination to pull off. When I go into class this week to teach my jury seminar to law students, I will pepper them with hypotheticals. What if white jurors report that an African-American juror was prejudiced against police witnesses? Is anti-police bias “code” for anti-white bias? What if a juror makes explicit comments about laziness of welfare moms – is that a dog whistle to a racial stereotype?

We should not seek to make jurors into more perfect human beings than we are. But we can insist, as the Court did, that it would be unconscionable as well as unconstitutional to let a jury conviction stand in the face of evidence of juror racial bias. Whatever else the Court decision accomplishes, it serves as a necessary corrective to the accommodation with prejudicial rhetoric on the rise elsewhere in our politics.