On Racial Justice, Thomas's Original Misunderstanding

      The Supreme Court struck a glancing blow for racial justice last week [March 6] by giving judges in criminal cases the power — and even the responsibility — to police racism in the jury room. The court's 5-3 ruling established a constitutional rule that entitles defendants to challenge a conviction if they have substantial evidence that a jury's verdict may have been tainted by racial stereotypes or animus.
      The ruling in a Colorado case seeks to enforce the Sixth Amendment's guarantee to "an impartial jury" by mandating a racial-bias exception to the general rule that prevents jurors from impeaching a verdict after the fact. The so-called "no-impeachment rule," aimed at protecting the confidentiality of jury deliberations, dates back to 18th century England and has prevailed generally in the United States but with a variety of specific exceptions.
      The ruling gives Miguel Peña-Rodriguez, a Mexican immigrant brought to the United States with his family as a child, a chance to overturn a sexual misconduct conviction that rested on shaky eyewitness testimony. In lengthy jury deliberations that ended with a compromise verdict, a former policeman told fellow jurors that Mexican men were sexual predators and that Peña's alibi witness, also Mexican, was not to be believed.
      The 5-3 majority in Peña-Rodriguez v. Colorado consisted of Justice Anthony M. Kennedy and the bloc of four liberal justices. Writing for the majority, Kennedy linked the ruling to an historical imperative: "The Nation must continue to make strides to overcome race-based discrimination," he wrote in a concluding paragraph.
      Writing for the three conservative dissenters, Justice Samuel A. Alito Jr. acknowledged the "great damage" from "even a tincture of racial bias" in the criminal justice system, but marshaled a series of doctrinal and practical objections to the "intrusion" into the confidentiality of jury deliberations. Chief Justice John G. Roberts Jr. joined Alito's opinion without writing separately, but Justice Clarence Thomas also added his own separate dissent to denounce the ruling as inconsistent with "the original understanding of the Sixth or Fourteenth Amendment."
      For Thomas, it was enough to know that the common-law right to a jury trial recognized by the English jurists William Blackstone and Lord Mansfield gave defendants no right to impeach a jury verdict with juror testimony about juror misconduct. Thomas cites his own concurring opinion from a 2000 decision as authority for limiting the Sixth Amendment right to the right as it existed in 18th century England.
      Even if one subscribes to the original understanding cult, Thomas overreads the history of the no-impeachment rule in 18th century England. The English common law gave judges the power to set aside a jury verdict because of "partiality." Thomas prominently cites a decision by Lord Mansfield in 1770 declaring that a juror's affidavit to impeach a verdict "can't be read." In a footnote, however, Thomas concedes that prior to 1770 juror affidavits "were sometimes received" to impeach a verdict though only "with great caution."
      Thomas concedes further that after independence American states took different positions on the issue in the 19th century. But he stresses, as the majority themselves acknowledge, that Lord Mansfield's rule had become "firmly entrenched" by the time the Fourteenth Amendment was ratified in 1868.  Thomas fails to note, however, that race was not an issue in 18th century England and that as of 1868 the United States had not even begun the effort to eliminate race from criminal justice system.
      For the original understanding crowd, history and law apparently stop there. But Kennedy notes in the majority opinion that some states began adopting more flexible rules by the early 20th century. He also lists in an appendix the 15 states and the District of Columbia that have recognized a racial-bias exception to the no-impeachment rule in judicial decisions going back as far as 1961. Answering the dissenters, Kennedy said none of the states have reported that jury deliberations have been chilled or that courts have had problems applying the exception.
      Colorado is one of nine other states that have codified exceptions to the no-impeachment rule generally to allow evidence of juror misconduct, such as use of alcohol or drugs or communication with nonjurors. The Colorado Rule of Evidence at issue in Peña's case followed many other states in allowing post-verdict evidence from jurors as to the use of extraneous prejudicial information, improper outside influence, or a mistake in the verdict form. The Colorado Supreme Court split 4-3 in rejecting Peña's plea for a full hearing to explore the influence of the racist juror's remarks on the other jurors.
      In federal courts, Congress enacted a no-impeachment rule in 1975, as recommended by the Supreme Court, that included only the three limited exceptions found in state rules. And the Court itself had declined to go further in decisions unrelated to racial issues in 1987 and more recently in 2014. In his dissent, Thomas argued that any further exceptions should be left to "the political process."
      For the majority, however, Kennedy said that eliminating racial prejudice from the criminal justice system could not be left to legislatures alone. "[B]latant racial prejudice must be confronted in egregious cases like this one . .  .," Kennedy wrote. "It is the mark of a maturing legal system that it seeks to understand and implement the lessons of history."