Minimizing racism in jury trials
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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. 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. 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 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.
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