Uh-oh: Juror statements can undo guilty verdict


If you’re on jury duty, watch what you say. Your words during secret deliberations are not so secret anymore, and may be held against you in a court of law.

United States law has moved into the era where your juror comments, which are to be held in secrecy to allow you to speak frankly as you decide a case, may undo your jury’s entire decision.

On Monday, the U.S. Supreme Court ruled that statements made by a juror during deliberations were enough to call that verdict into question.

By a vote of 5-3, the Supreme Court tossed the case of Miguel Pena-Rodriguez back to a lower court to consider the allegations made by two jurors about comments made by a fellow juror.

Pena-Rodriguez was required to register as a sex offender after he was convicted in 2010 of sexual contact with two teenage girls in Colorado. He was originally charged with trying to grope the girls in the women’s bathroom at a Denver horse racing track where he worked. He was also charged with harassing them.

The jury had deadlocked on the felony charged but convicted Pena-Rodriguez of three misdemeanors and sentenced him to two years of probation.

Pena-Rodriguez is Hispanic.

After the verdict, two jurors accused a third juror of saying that Mexican-American men, 9 times out of 10, were guilty of being aggressive toward women and young girls. “I think he did it because he’s Mexican, and Mexican men take whatever they want,” the juror, a retired police officer, allegedly said during deliberations.

Pena-Rodriguez’ defense attorney obtained affidavits from the two jurors who alleged the politically incorrect juror also said that Mexican men are physically controlling of women because they have a sense of entitlement, and that the alibi witness was not credible because, among other things, he was an illegal immigrant.

Never has a case been tossed because of remarks made during the secret deliberations that could considered racist. The decision opens up the door to a flood of appeals that could be based on such comments as, “He doesn’t seem gay,” “He acts so macho,” or “That tattoo is ghetto.”

The Sixth Amendment of the Constitution guarantees the right to a fair trial. Avoiding racial bias is just one aspect of fairness. There are others.

Could utterances made by citizens regarding other qualities, such as religion, ethnicity, gender, gender identity, or intelligence, now be used to unwind a verdict? It appears so.

If a defense team fails to adequately screen potential jurors about their racial bias during voir dire, can they get a “do-over”? Well, now they can.

Chief Justice John G. Roberts noted in October, when the case was being deliberated, that allowing an exception for a race bias would open the door to challenges for other types of bias.

“The next case is going to be religion,” he said. “So whatever we say on race is going to have either a limiting principle that makes sense, or it’s going to open up a broad category of cases.”

Justice Sonia Sotomayor shrugged off that concern, because race is  “the most pernicious and odious discrimination.”

Justice Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sotomayor, and Elena Kagan made up the majority decision on Tuesday, weakened what is known as the “no impeachment rule,” which allows open, frank debate and discussion among jurors, whose utterances are kept in complete secrecy so that there will be finality when the verdict is read.

Under the “no impeachment rule,” jurors don’t have to worry about being politically correct or stepping on other jurors feelings when they debate a case. Until now.

The decision means political correctness has overcome the constitutional requirement for secrecy in deliberations.

In the case of Pena Rodriguez v. Colorado, it appears the jury screening process failed. That is the defense team’s fault. It can happen sometimes, as justice is not perfect.

Yet, it is unlikely that overturning the constitutional requirement for secret deliberations in favor of the changing whims of political correctness will result in better justice.