Wednesday, October 17, 2018


Excerpted From: Virginia Weeks, Fairness in the Exceptions: Trusting Juries on Matters of Race, 23 Michigan Journal of Race and Law 189 (2017-2018) (175 Footnotes) (Full Document)


Virginia WeeksSelf-identified White supremacists gathered one May, wielding Confederate flags and chanting "we will not be replaced." Torches featured prominently as protesters reacted to the proposed removal of a statute of Confederate commander Robert E. Lee. Months later, in August, another such rally took place, torches abounding. And then again in October. All of these details are likely unsurprising to Americans steeped in an educational system that teaches them about the antebellum years, the civil rights movements of the 20th century, and constant attempts to foster racial equality - from ending slavery to affirmative action. What is unnerving is that these rallies occurred in 2017 and featured young leaders and participants.

The series of rallies in Charlottesville, Virginia, in 2017 led by White nationalists highlights crucial issues surrounding the First Amendment, but it is important to acknowledge what underlies the uncertainty around the legitimacy of such protests: racial bias is alive and well in the United States. Indeed, these rallies were an aggressive and explicit expression of such bias, but more insidious examples exist, too, from our mass incarceration system to experiences of students of color in our schools. Implicit bias research demonstrates the pervasive power of racial bias among both White and Black Americans. Implicit bias is so deeply rooted in our mental processes that experts tend to discuss mitigating it rather than eradicating it--if we cannot remove our biases, how might we consciously control them?

Accepting the power of such bias, it becomes necessary to consider its consequences for our justice system, which strives for fairness and requires equal protection of the laws. In the quest for fairness, our justice system often relies on juries to be the final decision-makers, for it is in the collective voice of the many members of our communities that we will reach a reliable and fair result. To foster trust in our system, it is important that we have a reason to trust jury verdicts--a value reflected in federal and state evidence rules that protect verdict finality with very few and narrow exceptions. Our justice system therefore empowers jurors to wield vast decision-making power while ensuring that their verdicts maintain integrity.

Of course, it is equally important that the verdict reached be a fair one, thus, our justice system seeks to balance finality with fairness. Critical to our conception of fairness is the Sixth Amendment right to a trial by an impartial jury. To ensure that jurors reach reliable verdicts, the legal system insulates their deliberations from influences outside of the jury box. In the context of trials, there will always be a winner and loser. It is understandable, then, that at least one party may deem an outcome unfair after months of preparation and best efforts. But this indignation is not sufficient grounds for disrupting the finality of a verdict. Other safeguards exist, such as the right of appeal and judge leniency during the sentencing phase. Therefore, in considering racial bias, the legal system must be careful to neither inject undue judicial interference in jury deliberations ex ante nor threaten the stability of verdicts ex post. Key to trusting the integrity of jury verdicts is the belief that they were reached after an autonomous deliberation process in which the considerations of the many reach a fair and balanced final decision.

Thus, those considering how to mitigate racial bias in our justice system must also consider how to do so without undermining the role of the jury. One way the legal system has attempted to reconcile these competing interests is by creating an additional exception to the rule safeguarding the finality of jury verdicts: when there is evidence that racial animus influenced a juror's decision to convict in a criminal trial, the verdict can be opened for examination. This form of mitigation is triggered ex post, and only when there is sufficient reason to suspect racism played a role. It thus relies on courts to make threshold determinations of what constitutes "enough" racism to warrant further investigation. As such, it is a difficult standard to implement in all but the most blatant cases of racist jurors. In the case of Peña-Rodriguez v. Colorado, for example, the court overturned a guilty verdict against a Hispanic defendant accused of unwanted sexual conduct and harassment after evidence of a juror making blatantly anti-Hispanic statements, including that he thought the fact that the defendant was Mexican made him more culpable because of Mexicans' general sexual views regarding women.

A more aggressive form of mitigation occurs ex ante, when jurors elect to nullify the verdict. Specifically, jurors can mitigate against the bias implicit in laws and their enforcement by electing not to convict a criminal defendant charged on the basis of such laws despite the facts proving his or her guilt. This mitigation applies to lower-grade crimes and serves as a form of civil disobedience. By refusing to convict despite proof of guilt, a juror engages in civil disobedience akin to protesting by indicating her lack of support for a system she believes to be unjust. While the verdict itself is not subject to formal judicial questioning in the same way it is with the ex post exception, the arbitrariness inherent in the choice to nullify creates a similar problem to the arbitrariness of threshold decisions of what is "enough" racism.

Despite the possible shortcomings of these two approaches, a vast body of research compels us to consider how to ensure our justice system can mitigate the implicit bias affecting the individual decision-makers comprising the system. This Note was prompted by the relatively new Peña-Rodriguez v. Colorado decision, which provides an unprecedented exception to the finality of jury verdicts, and the uncertainty of its impact. By comparing this new exception to another doctrine of mitigation--jury nullification--this Note explores considerations of race in the courtroom. It argues that these two approaches operate from opposite ends against the backdrop of how we perceive juries today. Despite the constitutionally codified power of the jury and the democratic ideals for which it stands, mechanical changes in our legal processes indicate that juries today are more constrained than in the early days of our republic. In this context, I argue that the Peña-Rodriguez exception and jury nullification both indicate that when it comes to keeping racial bias out of the courtroom, we only trust juries in exceptions to our normal protocols. The Supreme Court opened the door to explicit considerations of racism in jury decision-making, which should prompt us all to pay closer attention to how fair our verdicts are and can be.

Ultimately, this Note argues that we do not trust our system as it currently stands to effectively mitigate racial bias. Part I concludes that the state of implicit bias research today indicates that jury verdicts regarding Black parties are inherently unfair. Part II then discusses Peña-Rodriguez v. Colorado and argues that in creating an exception to the finality of jury verdicts, the Supreme Court undermined a longstanding source of integrity in our justice system by creating a rule that will be difficult for lower courts to administer. In so doing, the Supreme Court was willing to allow some uncertainty rather than continue to trust that jury verdicts are always racially fair, suggesting that such an imperfect rule is necessary for racial justice. Part III then discusses jury nullification as civil disobedience, arguing that verdicts themselves may serve to counter established law. It concludes that nullification creates an exception suggesting that sometimes justice is better served by verdicts that explicitly reject the law at hand. Part IV situates these two forms of mitigation against the backdrop of diminishing trust in the jury, concluding that Peña-Rodriguez v. Colorado fits within this trend though jury nullification actually empowers the jury. Both, however, indicate that we trust verdicts to be free of racial bias in the exceptions to our normal processes.

. . .

Implicit bias research tells us that jurors are unlikely to avoid relying on unconscious racial stereotypes as they deliberate. Indeed, despite one's expressly stated and genuinely held views that we should all be treated equally under the law, implicit racial bias--forged by existing in a nation founded on the backs of slaves and still working to combat White supremacy--is the undercurrent of our decision-making processes. But the fact that implicit racial bias is pervasive does not mandate that we resign ourselves to societal outcomes skewed against Black Americans. In the absence of conscious mechanisms by which to prevent the formation of such bias, we can turn to external sources of mitigation. Implicit bias colors the laws legislatures create and prosecutors enforce, the punishments judges dole out, and the verdicts jurors reach.

Thus the great irony: the jury verdict represents the height of democracy's fairness and egalitarianism and yet falls victim to racial bias. It is a criminal defendant's constitutionally enshrined right to be judged by a jury, and we defer to jurors for credibility assessments and determinations of guilt. But to be judged by a fair cross-section of one's peers is to risk being judged by a group of racially biased or racist individuals. Of course, despite the lip service we pay to the glory of the jury, there has been a clear decline in the scope of the jury's power indicating that perhaps we do not trust them with the full decision-making process. Nor should we, at least when it comes to race in the courtroom and the normal decision-making protocols by which jurors must abide.

To that end, our legal system provides two particular forms of mitigation. The Supreme Court's decision in Peña-Rodriguez v. Colorado in March 2017 provides ex post mitigation by providing a remedy after the verdict has been issued. The Peña-Rodriguez exception on its face functions against explicit racial bias rather than implicit racial bias. But where there is explicit bias, there is surely also implicit bias. Though an imperfect and potentially weak remedy, the decision is rooted in an understanding of America's history of pervasive racism. As such, the exception represents the fallibility of the jury verdict in the face of racial bias. Though the Court's exception is narrow, it nevertheless acknowledges the powerful hold such bias still has in our nation. On the ex ante end of the spectrum, jury nullification as civil disobedience provides another source of mitigation. Recognizing that racial bias, both implicit and explicit, undergirds our laws and their enforcement, nullification empowers jurors to refuse to convict on the basis of such flawed laws. It is not the case that jurors cannot be trusted, but that the decision-making processes prior to the trial cannot be so trusted.

Peña-Rodriguez expresses that jury deliberations cannot always be relied upon to lead to a fair outcome. The idea of nullification seems to cut the other way: we should trust jurors more on matters of race in the courtroom. The sources of mitigation reflect the broader ambivalence as to how much trust to put in the jury in determining the outcome of a trial, but the commonality between the ex post and ex ante remedies is that they are exceptions to the normal protocol. Undermining the finality of a jury verdict is an exception to codified evidentiary rules safeguarding the very same. Nullification is an exception to how jurors are supposed to reach verdicts, i.e., in accordance with the relevant laws. This commonality is crucial, for while it implies that normal jury decision-making protocols fall prey to racism, it also suggests that there is hope. In recognizing the overwhelming influence of racial bias, law makers and adjudicators can consciously reflect on their decision-making motivations before creating laws and handing down verdicts that only perpetuate an America that does not treat all equally under the law. More importantly, if our legal system allows for chipping away at the sacredly held integrity of the jury verdict, then there is certainly room for race conscious adjustments to less enshrined parts of our legal system, like the legislative process and prosecutorial discretion.

University of Michigan Law School, J.D. Candidate, May 2019. Dartmouth College, B.A., June 2011.

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