How much racism is allowed to infect a criminal trial before a court has to step in? That's the question in two Supreme Court cases to be argued this month. One case, Buck v. Davis, deals with an expert witness in a capital murder trial who testified at the sentencing hearing that Black defendants are overrepresented in the criminal justice system and that the defendant's race increases the likelihood of his committing more violent crimes in the future, which is one of the factors a capital sentencing jury considers. In the other case, Pena-Rodriguez v. Colorado, during jury deliberations over the guilt of a Mexican-American defendant charged with sexual assault on a white woman, one of the jurors - a former police officer - is alleged to have stated: "I think he did it because he's Mexican, and Mexican men take whatever they want." He also said that the jury should disbelieve the defendant's alibi witness because he is Hispanic. It would be hard to find a criminal trial featuring such blatant racism.
Not surprisingly, race and racism have for the past sixty years been at the center of the Supreme Court's jurisprudence about the meaning of equality in the Constitution. The Court, probably more than any other institution, has struggled with issues of race in education, housing, employment, and criminal law, and its rulings are marked by confusion and discord. One of the most vexing questions is the Court's disagreement over how much racial progress the country has made since slavery, segregation, and the more recent disparate treatment of minorities. Chief Justice John Roberts, writing for the majority in Shelby County v. Holder, the voting rights case, said that the country has come very far beyond its racist past, so far that the "extraordinary measures" in the Voting Rights Act to protect minorities from discrimination are no longer necessary. Contrast Justice Roberts's discourse on racial progress with Justice Sonia Sotomayor's dark commentary last term in Utah v. Streiff in which she described how people of color are disproportionately scrutinized, especially by police, and how black parents routinely give their children "the talk" about how to behave "out of fear that an officer with a gun will react to them."
While the impact of a person's race in the criminal justice system is the subject of intense debate among courts and commentators, there is no dispute that the race of a person investigated or accused of crime matters. It is well-documented that racial disparities are noticeable in police stops and frisks, prosecutorial charging, and court's bail and sentencing decisions. And that the most tragic examples may be the disproportionate killings of black men by police. But the appearance of overt racism in a public trial before a judge and jury is rare and most often seen in racial discrimination in the selection of juries and occasionally racial remarks by prosecutors in summations. But the racial issues in the pending Supreme Court cases are at least unusual, and for the Supreme Court should be treated a unprecedented.
The Colorado jury deliberation case offers the Supreme Court an opportunity to resolve a sharp conflict among the lower courts about the so-called "no impeachment" rule that protects the content of jury deliberations from being disclosed after a verdict. This rule of jury secrecy, according to a majority of the courts, encourages jurors to speak candidly without fearing that their communications with each other would be revealed. Moreover, these courts worry that without this rule lawyers would repeatedly harass jurors after convictions and impair the finality of verdicts. Other courts, by contrast, follow the rule but make a limited exception in cases where juror bias may be so extreme that a defendant's Sixth Amendment right to a jury trial has been abridged, as in the Colorado case. Although the Supreme Court has tolerated extreme instances of juror misconduct during deliberations - one case described the jury's deliberations as "one big party" contaminated by drug and alcohol abuse - the Court has not yet decided whether statements of racial bias during deliberations override the no-impeachment rule.
After deliberating over twelve hours, the Colorado jury deadlocked on the felony sexual assault count but convicted the defendant of three misdemeanors. In reaching their verdict the jurors had to weigh the credibility of the accuser - a white woman - against the credibility of an alibi witness who was Hispanic. Learning of one of the juror's racist comments about Hispanics, the defendant's lawyer appealed the conviction on this ground but Colorado's highest court, by a 4-3 vote, applied the traditional no-impeachment rule to uphold the verdict.
The second case, Mr. Buck's death penalty appeal, involved the confluence of several bizarre circumstances: testimony by the expert that in his opinion the defendant is more likely to commit future acts of violence because of his race; a much-criticized defense attorney who had lost twenty capital cases and who called the expert himself; and a concession by the State of Texas that race-as-dangerousness testimony is constitutionally prohibited and promised not to oppose new sentencing hearings in seven cases that included similar race-as-dangerousness testimony from the same expert. But when Mr. Buck filed a Habeas Corpus petition challenging his attorney's conduct as constitutionally deficient, Texas argued that the claim was defaulted because it was not raised in court in a timely manner. And the Fifth Circuit Court of Appeals agreed with Texas that the procedural rule bars appeals except in extraordinary circumstances, and that this case was not of them.
It is almost impossible today to discuss any issue in criminal justice without at the same time discussing the role that race plays at every phase of the process. Conduct by prosecutors and police outside the courtroom are not as closely monitored by the courts as conduct that happens inside the courtroom. And given the increasing focus on protecting defendants against wrongful convictions, it is critical that a defendant's constitutional right to a fair trial before an impartial jury not be corrupted by uniquely pernicious stereotypes promoted either by a purported "expert" witness or a bigoted juror. Both instances are so inflammatory as to destroy confidence in a jury's verdict. Will the Supreme Court see it that way in these cases?