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Secret Jury Deliberations, Not So Much

This Area For Jurors Only sign with red background
photo by Douglas Muth

This week’s U.S. Supreme Court decision on jury room secrecy brings to mind a personal experience I had in 1985.

After covering the libel trial brought by Gen. William C. Westmoreland against CBS, its correspondent Mike Wallace and two co-defendants (which ended in a settlement), I discovered that one of the jurors – Patricia Roth – had kept a diary. I went to her home in Westchester County, New York, interviewed her and reviewed the diary, and wrote a piece for The Associated Press that got a lot of play.

The following year Roth published a book, “The Juror and the General,” which recounted her experiences. Whether related to that or not, my original AP article is now quite hard to find online. The Los Angeles Times also interviewed Roth, not quoting from her diaries, along with several of her fellow jurors. One, David Lederman, reportedly kept about 700 pages of notes on the trial. The jury that included Roth and Lederman never had a chance to deliberate because of the settlement, but if they had, nothing would have blocked either from speaking or writing about what occurred inside the jury room.

Jury deliberations have traditionally been secret only insofar as no juror could be compelled to talk about what happened. Every state and the federal government have variations on a “no impeachment” rule, which prevents jurors from testifying about their deliberations after a verdict has been reached. However, unlike a grand jury proceeding, which obliges jurors to maintain secrecy, trial jurors have always been free to talk about what they saw and heard, in court or even in the jury room itself. While state laws vary, the general rule is that jurors are free to discuss or refuse to discuss their experiences as they choose. Attorneys frequently interview jurors after a trial to gain insights into appeal or retrial prospects.

Colorado’s “no impeachment” provision was a crucial element of Pena-Rodriguez v. Colorado, the Supreme Court decision in question. After Miguel Angel Pena-Rodriguez was convicted of harassment and unlawful sexual contact, two of the jurors told the defense counsel that a fellow juror had made prejudiced and arguably racially biased comments about the defendant, indicating the juror was inclined to believe in Pena-Rodriguez’s guilt and to discount the testimony of a witness providing an alibi for him. Pena-Rodriguez’s lawyers asked that the judge investigate these comments and decide whether they effectively deprived Pena-Rodriguez of a fair trial. The judge, and subsequently the Colorado Supreme Court, said that such a review was not allowed under the law.

The U.S. Supreme Court reversed. In a 5-3 decision, the high court ruled that if a juror openly expresses racial animus, it is grounds for potentially setting aside a verdict. (This assumes you consider the term “Mexican” to be racial as distinct from ethnic; the majority opinion touches on this distinction and settles on referring to a racial animus based on the terminology used in the briefs of the both petitioner and the respondent.) Justice Anthony Kennedy, writing for the court, acknowledged that it is important that jurors feel able to hold “full and vigorous” discussions within the privacy of the jury room. However, he argued that such considerations must yield when evident racial bias threatens to undermine the possibility of securing a fair trial.

“This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system,” Kennedy wrote. “The two lines of precedent, however, need not conflict.” The foundational idea underpinning the majority decision is that racial prejudice presents a special danger to the American justice system, and as such creates a worthy exception to the rules designed to preserve the finality of jury verdicts in most cases.

I believe the Court came to the right result in the end, even though I agree, in part, with the dissent written by Justice Samuel Alito: “Today, with the admirable intention of providing justice for one criminal defendant, the Court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the Constitution. This is a startling development, and although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

In other words, the well-meant majority decision represents a well-greased slope away from the confidentiality of jury deliberations. In fact I believe the majority already started the slide by using “Mexican” as a racial classification, an outcome that clearly could not have been envisioned by the people who wrote either the Bill of Rights or the 14th Amendment.

But I part company with the minority over whether this departure is unacceptable. Should an individual sit in jail, perhaps for life, without justification just to preserve the finality of jury verdicts? If that is the case then the entire Innocence Project is a misguided waste of time. Or, as in Pena-Rodriguez’s case, should an individual indefinitely remain on a registry of sex offenders, severely limiting access to work and housing, in order to honor the same principle?

I don’t believe that at all, and I don’t think many people do. If new post-trial evidence proves a convict’s innocence, there is no justification to continue imposing the penalty for the crime. And if similarly strong evidence shows that a verdict was rendered not on the basis of the evidence but because one or more jurors failed to faithfully perform the duties they undertook, then again, the conviction should not stand – although in many cases the alternative would be retrial, rather than automatic release. The Supreme Court specifically declined to comment on the procedures a trial court should follow when one or more jurors comes forward with evidence of racial bias; it merely stated that a no impeachment law does not mean the court cannot take action at all.

Yes, once we open the door to post-trial consideration of racial animus, we almost inevitably proceed to consider other forms of juror misconduct or malfeasance. But which engenders more confidence: a legal process that feigns omniscience or one that admits the possibility of error in any individual case, along with the certainty that errors will arise in some percentage of cases overall? One that leaves convictions untouched for the sake of principle or one which strives to correct errors in the interest of justice?

I don’t have much trouble answering that question. If dissenting Justices Alito, Clarence Thomas and John Roberts had a wrongfully convicted spouse or child sitting in prison or carrying the burden of placement on a sex offender registry, I don’t think they would have much trouble answering it either.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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