Peña-Rodriguez v. Colorado Brief Amicus Curiae in Support of Petitioner

    No. 15-606

In The

Supreme Court of tfje ®mteb i§>tat

M iguel Angel Pena-Rodriguez,
Petitioner,

v.

State of Colorado,
Respondent.

On Petition for Writ of Certiorari to the 
Colorado Supreme Court

BRIEF OF THE NAACP LEGAJL DEFENSE & 
EDUCATIONAL FUND, INC. AS AMICUS 
CURIAE IN SUPPORT OF PETITIONER

Sherrilyn Ifill 
Director-Counsel 

Janai Nelson 
Christina Swarns 
Jin Hee Lee 
Liliana Zaragoza 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, NY 10006

December 10, 2015

John Paul Schnapper- 
Casteras *

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I Street NW 
Washington, DC 20005 
202-682-1300 
jschnapper@naacpldf.org

* Counsel of Record

mailto:jschnapper@naacpldf.org


TABLE OF CONTENTS
TABLE OF AUTHORITIES....................................... ii
INTEREST OF AMICUS CURIAE............................ 1
INTRODUCTION AND

SUMMARY OF ARGUMENT................................ 2
ARGUMENT.................................................................5
I. RACIAL BIAS IN THE JURY SYSTEM IS A 

CRITICALLY IMPORTANT ISSUE THAT 
WARRANTS INTERVENTION BY THIS 
COURT...................................................................... 6

A. This Court has long approached racial
prejudice in the jury system as a 
uniquely harmful and critical 
constitutional issue......................................... 6

B. This case presents a quintessential issue
of racial bias in the jury system that 
warrants Supreme Court intervention......10

C. If racial bias is allowed to infect jury
deliberations with impunity, public 
confidence in the criminal justice system 
will be seriously undermined....................... 13

II. THE COLORADO SUPREME COURT 
FUNDAMENTALLY MISAPPREHENDED 
THE CONSTITUTIONAL SIGNIFICANCE 
OF RACIAL BIAS IN JURIES............................. 17

CONCLUSION....... ...................................................22



11

TABLE OF AUTHORITIES

Cases
Aldridge v. United States,

283 U.S. 308(1931)...............................................  19

Alexander v. Louisiana,
405 U.S. 625 (1972)...................................................1

Ballard v. United States,
329 U.S. 187 (1946)...............................................  15

Batson v. Kentucky,
476 U.S. 79 (1986)...........................................passim

Carter v. Jury Commission,
396 U.S. 320 (1970)...................................................1

Commonwealth u. Laguer,
571 N.E.2d 371 (Mass. 1991).................................12

Crawford v. Washington,
541 U.S. 36 (2004).................................................  18

Duncan v. Louisiana,
391 U.S. 145 (1968).........................................   6

Dyer v. Calderon,
151 F.3d 970 (9th Cir.), cert, denied,
525 U.S. 1033 (1998)................................................ 9

Edmonson v. Leesville Concrete Co.,
500 U.S. 614 (1991)....................................... .passim

Edmonson v. Leesville Concrete Co.,
No. 89-7743, 1991 WL 636291 (U.S. Oral
Arg., Jan. 15, 1991).................................................. 3



Georgia v. McCollum,
505 U.S. 42 (1992)..........................................passim

Glasser v. United States,
315 U.S. 60 (1942)................................................... 6

Ham v. South Carolina,
409 U.S. 524 (1973)................................................. 1

Irvin v. Dowd,
366 U.S. 717(1961)................................................. 8

J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994).......................................passim

Johnson v. California,
543 U.S. 499 (2005)................................................. 2

Kittle v. United States,
65 A.3d 1144 (D.C. 2013).......................................11

Miller-El v. Cockrell,
537 U.S. 322 (2003).................................................. 2

Powers v. Ohio,
499 U.S. 400 (1991)................................  5, 9, 13, 14

Rose v. Mitchell,
443 U.S. 545 (1979)....................................... .passim

Shillcutt v. Gagnon,
827 F.2d 1155 (7th Cir. 1987)..............................  12

Smith v. Phillips,
455 U.S. 209 (1982)...........................................5, 20

Smith v. Texas,
311 U.S. 128 (1940)...............................................  15

I l l



IV

State v. Brown,
62 A.3d 1099 (R.I. 2013)..................................11, 12

Sterling v. Dretke,
117 Fed. App’x 328 (5th Cir.),
cert, denied, 544 U.S. 1053 (2005)..................15-16

Strauder v. West Virginia,
100 U.S. 303 (1879).......................................... 7, 8-9

Swain v. Alabama,
380 U.S. 202 (1965)................................................ . 1

Turner v. Fouche,
396 U.S. 346 (1970)................................................. 1

United States v. Benally,
546 F.3d 1230 (10th Cir. 2008)............................  11

United States v. Heller,
785 F.2d 1524 (11th Cir. 1986)............................  12

United States v. Hendrix,
549 F.2d 1225 (9th Cir.),
cert, denied, 434 U.S. 818 (1977)......................9-10

United States v. Maldonado-Rivera,
922 F.2d 934 (2d Cir. 1990).....................................5

United States u. Villar,
586 F.3d 76 (1st Cir. 2009).............................  11, 12

Warger v. Shauers,
135 S. Ct. 521 (2014)........................................19-20



V

Constitutional Provisions

U.S. Const. Amend. V I ....................................... .passim

U.S. Const. Amend. XIV................................................ 5

U.S. Const. Art. VI........................................................18

Other Authorities

27 Charles A. Wright & Victor J. Gold, Fed.
Prac. & Proc.: Evid. (2d ed. 2007)..............9, 18, 20

Benjamin T. Huebner, Beyond Tanner: An 
Alternative Framework for Postverdict 
Juror Testimony, 81 N.Y.U. L. Rev. 1469 
(2006)....................................................................... 21

Brief of the NAACP Legal Defense and
Educational Fund, Inc. as Amicus Curiae 
in Support of Petitioner, Sterling v.
Dretke, 117 Fed. App’x 328 (5th Cir.)
(unpublished), cert, denied, 544 U.S.
1053 (2005), 2005 WL 952252
(Apr. 22, 2005) .................................................. 15-16

Charles Abrams, Forbidden Neighbors: A 
Study of Prejudice in Housing (1955) in 
The Suburb Reader (Becky M. Nicolaides 
& Andrew Wiese eds., 2006)............................ 16-17



VI

Colin Miller, Dismissed with Prejudice: Why 
Application of the Anti-Jury 
Impeachment Rule to Allegations of 
Racial, Religious, or Other Bias Violates 
the Right to Present A Defense, 61 Baylor
L. Rev. 872 (2009)......................................................9

Edward T. Swaine, Pre-Deliberations Juror 
Misconduct, Evidential Incompetence, 
and Juror Responsibility, 98 Yale L.J.
187 (1988)................................................................ 20

Fed. R. Evid. 606(b) .............................................passim

Fed. R. Evid. 606 Advisory Committee’s
Notes...........................................................................5

John C. Tucker, Trial and Error: The
Education of a Courtroom Lawyer (2003)........... 16

Mark W. Bennett, Unraveling the Gordian 
Knot of Implicit Bias in Jury Selection: 
The Problems of Judge-Dominated Voir 
Dire, the Failed Promise of Batson, and 
Proposed Solutions, 4 Harv. L. & Pol’y
Rev. 149 (2010).......................................................21

Michelle Alexander, The New Jim Crow:
Mass Incarceration in the Age of 
Colorblindness (2010)............................................ 16

Nicholas S. Bauman, “Extraneous
Prejudicial Information”: Remedying 
Prejudicial Juror Statements Made 
During Deliberations,
55 Ariz. L. Rev. 775 (2013)................. 21



Note, Racist Juror Misconduct During 
Deliberations, 101 Harv. L. Rev. 1595 
(1988)...........................................................19, 20-21

Statement by the NAACP Legal Defense 
and Educational Fund, Inc. Before the 
President’s Task Force on 21st Century 
Policing (Jan. 13, 2015), available at 
http://www.naacpldf.org/document/ldf- 
testimony-presidents-task-force-21st-

vii

century-policing...................................................... 2

Stern & Gressman, Supreme Court Practice
(8th ed. 2002).........................................................  10

Testimony of Sherrilyn Ifill to the United 
States Senate Judiciary Committee, 
Subcommittee on Oversight, Agency 
Action, Federal Rights and Federal 
Courts (Nov. 17, 2015), available at 
http://www.naacpldf.org/document/ldf- 
testimony-senate-judiciary- 
committee%E2%80%99s-subcommittee- 
oversight-agency-action-federal-rig....... 2

http://www.naacpldf.org/document/ldf-testimony-presidents-task-force-21st-
http://www.naacpldf.org/document/ldf-testimony-presidents-task-force-21st-
http://www.naacpldf.org/document/ldf-testimony-senate-judiciary-committee%E2%80%99s-subcommittee-oversight-agency-action-federal-rig
http://www.naacpldf.org/document/ldf-testimony-senate-judiciary-committee%E2%80%99s-subcommittee-oversight-agency-action-federal-rig
http://www.naacpldf.org/document/ldf-testimony-senate-judiciary-committee%E2%80%99s-subcommittee-oversight-agency-action-federal-rig
http://www.naacpldf.org/document/ldf-testimony-senate-judiciary-committee%E2%80%99s-subcommittee-oversight-agency-action-federal-rig


INTEREST OF AMICUS CURIAE i
The NAACP Legal Defense & Educational Fund, 

Inc. (“LDF”) is the nation’s first and foremost civil 
rights law firm. LDF was founded as an arm of the 
NAACP in 1940 by Charles Hamilton Houston and 
Thurgood Marshall to redress racial discrimination 
and to assist African Americans in securing their 
constitutional and statutory rights. Through 
litigation, advocacy, public education, and outreach, 
LDF strives to secure equal justice under the law for 
all Americans, and to break down barriers that 
prevent African Americans from realizing their basic 
civil and human rights.

LDF has long been concerned about the influence of 
race on the administration of the criminal justice 
system in particular and with laws, policies, and 
practices that impose a disproportionate negative 
impact on communities of color more generally. For 
example, LDF served as counsel of record for the 
defendants in cases involving racial bias and the 
racial make-up of juries, Swain v. Alabama, 380 U.S. 
202 (1965), Alexander v. Louisiana, 405 U.S. 625
(1972) , and Ham v. South Carolina, 409 U.S. 524
(1973) ; pioneered the affirmative use of civil actions 
to end jury discrimination in Carter u. Jury 
Commission, 396 U.S. 320 (1970), and Turner v. 
Fouche, 396 U.S. 346 (1970); and appeared as amicus 1

1

1 Pursuant to Supreme Court Rule 37.2(a), counsel of record 
for both parties received notice of amicus curiae’s intention to 
file this brief at least 10 days prior to the due date. Petitioner 
and Respondent have consented to the filing of this brief, and 
their letters of consent have been filed with the Clerk. No party 
authored this brief in whole or in part, and no person or entity, 
other than amicus curiae, its members, or its counsel, has made 
a monetary contribution to the preparation or submission of 
this brief.



2
curiae in cases involving the use of race in 
peremptory challenges in Johnson v. California, 543 
U.S. 499 (2005), Miller-El u. Cockrell, 537 U.S. 322 
(2003), Georgia v. McCollum, 505 U.S. 42 (1992), 
Edmonson v. Leesville Concrete Co., 500 U.S. 614 
(1991), and Batson v. Kentucky, 476 U.S. 79 (1986) 
(overruling Swain). LDF also recently testified 
before the United States Congress as well as the 
President’s Task Force on 21st Century Policing 
about the prevalence of racial bias throughout the 
criminal justice system and the need to eliminate 
such discrimination in order to foster public 
confidence and trust in our public institutions.2

Given its expertise in matters concerning the 
influence of race on the criminal justice system, LDF 
believes its perspective would be helpful to the Court 
in evaluating the importance of this case and 
determining whether to grant certiorari.

INTRODUCTION AND 
SUMMARY OF ARGUMENT

In the criminal proceedings below, Petitioner 
entered the courthouse “believing that times had 
changed” and “confident that justice . . . would be 
guided by the promise . . . that [he] would be judged

2 See Testimony of Sherrilyn Ifill to the United States Senate 
Judiciary Committee, Subcommittee on Oversight, Agency 
Action, Federal Rights and Federal Courts (Nov. 17, 2015), 
available at http://www.naacpldf.org/document/ldf-testimony- 
senate-judiciary-committee%E2%80%99s-subcommittee- 
oversight-agency-action-federal-rig; Statement by the NAACP 
Legal Defense and Educational Fund, Inc. Before the President’s 
Task Force on 21st Century Policing (Jan. 13, 2015), available at 
http://www.naacpldf.org/document/ldf-testimony-presidents- 
task-force-21st-century-policing.

http://www.naacpldf.org/document/ldf-testimony-senate-judiciary-committee%E2%80%99s-subcommittee-oversight-agency-action-federal-rig
http://www.naacpldf.org/document/ldf-testimony-senate-judiciary-committee%E2%80%99s-subcommittee-oversight-agency-action-federal-rig
http://www.naacpldf.org/document/ldf-testimony-senate-judiciary-committee%E2%80%99s-subcommittee-oversight-agency-action-federal-rig
http://www.naacpldf.org/document/ldf-testimony-presidents-task-force-21st-century-policing
http://www.naacpldf.org/document/ldf-testimony-presidents-task-force-21st-century-policing


3
not by the color of [his] skin,”3 but by relevant, 
objective, and fair measures. Instead, Petitioner was 
convicted after a trial in which a juror asserted 
during deliberations that Petitioner was guilty of the 
crime charged because of his race. Specifically, the 
juror made several statements urging the jury to 
convict Petitioner because of his ethnicity, arguing 
that Petitioner was guilty “because he’s Mexican and 
Mexican men take whatever they want,” and 
referencing the juror’s own “experience as an ex-law 
enforcement officer” where, allegedly, on “patrol, nine 
times out of ten Mexican men were guilty of being 
aggressive toward women . . . .” Pet. App. 4a-5a. 
That same juror also suggested that an alibi witness 
did not provide credible testimony because of his race.

Even after two other jurors came forward to report 
the explicit racial bias of their fellow juror, the 
Colorado Supreme Court held that, notwithstanding 
the Sixth Amendment’s guarantee of an impartial 
jury, this egregious misconduct was not subject to 
judicial review. This erroneous ruling not only 
violates Petitioner’s constitutional rights and 
undermines the integrity of his individual criminal 
trial, but it also gravely erodes public confidence in 
our system of justice more broadly. Recent events 
only confirm the stark and unsettling reality that 
racial bias and stereotyping remain serious and 
stubbornly persistent problems that undermine 
confidence in the criminal justice system.

Amicus curiae, therefore, writes separately at the 
certiorari stage of this case to emphasize two key 
reasons why this Court should grant the Petition:

3 Edmonson v. Leesville Concrete Co., No. 89-7743, 1991 WL 
636291, at *29 (U.S. Oral Arg., Jan. 15, 1991).



4
First, the problem of racial bias in the jury system 

is a vitally important issue that merits this Court’s 
intervention. For over a century, this Court has 
strived to eradicate racial bias from our criminal 
justice system. Time and again, this Court has 
treated such discrimination, particularly in the 
context of the jury, as an exceptional harm deserving 
of exceptional attention and remedies. Consonant 
with that history of intervention, the Petition should 
be granted to resolve an entrenched circuit split and 
because it implicates an important issue involving 
the Constitution’s special concern for racial prejudice 
in the jury system. Allowing the Colorado Supreme 
Court’s decision to stand would further undercut 
public trust in the criminal justice system.

Second, the Colorado Supreme Court 
fundamentally misconstrued the constitutional 
significance of racial bias in juries. The Colorado 
Supreme Court failed to appreciate — or even cite — 
this Court’s longstanding precedents addressing the 
special harms of racial bias in juries, its 
jurisprudence about extreme forms of bias like those 
expressed in this case, or the critical importance of 
public confidence in the operation of our system of 
justice. Remarkably, the Colorado Supreme Court 
equated constitutional protections of an impartial 
jury with policies animating the rules of evidence, 
thereby subjugating Sixth Amendment rights to mere 
policy concerns.

We urge this Court to grant the Petition and to 
restore the promise of an impartial jury trial free 
from the taint of racial animus to every defendant, 
who our Constitution commands be equal in the eyes 
of the law.



ARGUMENT
5

The Sixth Amendment guarantees a criminal 
defendant the right to a trial “by an impartial jury.” 
U.S. Const. Amend. VI.4 An “impartial jury” is one 
that is “capable and willing to decide the case solely 
on the evidence before it,” Smith v. Phillips, 455 U.S. 
209, 217 (1982), and that disregards any personal 
prejudices or biases. See, e.g., Powers v. Ohio, 499 
U.S. 400, 411 (1991) (referencing a defendant’s “right 
to be tried by a jury free from ethnic . . . [or] racial . . . 
prejudice”); United States v. Maldonado-Rivera, 922 
F.2d 934, 971 (2d Cir. 1990) (jurors must “be able to 
view the evidence with impartiality and to decide the 
case without bias”). At the same time, Federal Rule 
of Evidence 606(b) and its state analogs, such as the 
one at issue in this case, reflect the general practice 
that juror testimony is not normally admissible to 
impeach a jury verdict. The Rule itself recognizes 
that this practice promotes the “freedom of 
deliberation,” “finality of verdicts,” and “protection of 
jurors against annoyance,” Fed. R. Evid. 606 Advisory 
Committee’s Notes. But this so-called “no­
impeachment” rule is, of course, still subject to 
constitutional constraints. This Court should resolve 
the circuit split over the question of whether the 
Sixth Amendment requires consideration of juror 
testimony when racial bias infects jury deliberations.

4 The Fourteenth Amendment, which makes the Sixth 
Amendment applicable to the states, likewise provides a 
coterminous right to an impartial jury. See, e.g., Pet. 12 n.3. 
Throughout this brief, we refer to this simply as a Sixth 
Amendment right.



6
I. RACIAL BIAS IN THE JURY SYSTEM 

IS A CRITICALLY IMPORTANT ISSUE 
THAT WARRANTS INTERVENTION 
BY THIS COURT.

For over a century, spanning ten Chief Justices, 
strong majorities of this Court have repeatedly 
recognized that racial animus in the jury system is 
antithetical to core constitutional principles and 
deleterious to the integrity of -  and public confidence 
in -  our legal system. Accordingly, this Court has 
consistently identified jury-related racial bias as an 
exceptional problem meriting recurrent and decisive 
interventions.

A. This Court has long approached racial 
prejudice in the jury system as a 
uniquely harmful and critical 
constitutional issue.

This Court has consistently made clear that a 
criminal conviction cannot stand if it was 
compromised by racial bias. An “unbroken line of 
cases,” Rose v. Mitchell, 443 U.S. 545, 551 (1979), 
extending “over a century of jurisprudence [,] [has 
been] dedicated to the elimination of race prejudice 
within the jury selection process,” Edmonson, 500 
U.S. at 618. “[A] defendant has the right to an
impartial jury that can view him without racial 
animus, which so long has distorted our system of 
criminal justice.” McCollum, 505 U.S. at 58. If a jury 
is to fulfill its duty as a “prized shield against 
oppression,” Glasser v. United States, 315 U.S. 60, 84 
(1942), and the defendant is to reap the benefit of its 
“common-sense judgment,” Duncan v. Louisiana, 391 
U.S. 145, 156 (1968), then the jury must remain free 
from racial bias.



7
The Court has emphasized that jury-related 

discrimination is inimical to our judicial system 
“because it is ‘a stimulant to that race prejudice 
which is an impediment to securing to [Black 
citizens] that equal justice which the law aims to 
secure to all others.’” Batson, 476 U.S. at 87-88 
(quoting Strauder u. West Virginia, 100 U.S. 303, 308 
(1879)); see also Rose, 443 U.S. at 555 
(“Discrimination on the basis of race, odious in all 
aspects, is especially pernicious in the administration 
of justice.”); id. at 558-59 (describing modern forms of 
discrimination as “[p]erhaps . . . more subtle” but still 
seriously injurious). With respect to jury 
deliberations in particular, “[n]othing would be more 
pernicious to the jury system than for society to 
presume that persons of different backgrounds go to 
the jury room to voice prejudice.” J.E.B. v. Alabama 
ex rel. T.B., 511 U.S. 127, 154 (1994) (Kennedy, J., 
concurring in the judgment).

The Court has applied these foundational principles 
broadly. See, e.g., Edmonson, 500 U.S. at 618 
(concluding that racial discrimination in the jury 
system is impermissible in civil, as well as criminal, 
proceedings); J.E.B., 511 U.S. at 131-42 (extending 
Batson to prohibit discrimination in jury selection on 
the basis of gender). These expansive protections 
against discrimination in the jury are rooted in the 
critical role that juries play in ensuring the fair and 
impartial administration of justice:

We do not prohibit racial . . . bias in jury 
selection only to encourage it in jury 
deliberations. Once seated, a juror should not 
give free rein to some racial . . . bias of his or her 
own. The jury system is a kind of compact by 
which power is transferred from the judge to 
jury, the jury in turn deciding the case in accord



8

with the instructions defining the relevant issues 
for consideration. The wise limitation on the 
authority of courts to inquire into the reasons 
underlying a jury’s verdict does not mean that a 
jury ought to disregard the court’s instructions. 
A juror who allows racial . . . bias to influence 
assessment of the case breaches the compact and 
renounces his or her oath.

511 U.S. at 153 (Kennedy, J., concurring in 
the judgment); see also Edmonson, 500 U.S. at 624 
(“The jury exercises the power of the court and of the 
government that confers the court’s jurisdiction.”).

The Court’s special focus on eradicating racial bias 
in the jury system is grounded upon a jury’s critical 
role as the last line of defense in ensuring the proper 
administration of justice. “England, from whom the 
Western World has largely taken its concepts of 
individual liberty and of the dignity and worth of 
every man, has bequeathed to us safeguards for their 
preservation, the most priceless of which is that of 
trial by jury.” Irvin v. Dowd, 366 U.S. 717, 721 (1961); 
see also id. at 722 (noting that the right to an 
impartial jury requires that a “verdict . . .  be based 
upon the evidence developed at the trial”).

As this Court has repeatedly recognized, juries are 
the principal means by which to protect our citizenry 
from the State’s potential misuse of its broad powers 
to confine or execute its citizens. See, e.g., Batson, 
476 U.S. at 86 (“The petit jury has occupied a central 
position in our system of justice by safeguarding a 
person accused of crime against the arbitrary exercise 
of power by prosecutor or judge.”). A longstanding 
pillar of this Court’s jurisprudence is that the jury 
stands as a criminal defendant’s fundamental 
“‘protection of life and liberty against race or color 
prejudice.’” Batson, 476 U.S. at 87 (quoting Strauder,



9
100 U.S. at 309). Additionally, “the jury system 
performs the critical governmental function [] of . . . 
‘ensuring] continued acceptance of the laws by all of 
the people.”’ Edmonson, 500 U.S. at 624 (quoting 
Powers, 499 U.S. at 407); see also infra Part I.C 
(discussing linkages among jury, public confidence, 
and integrity of the judicial system).

The presence of racial bias in juries can be a pivotal 
factor in decisions affecting a defendant’s liberty, life, 
and death.5 Under such circumstances, “ [rjacial 
prejudice undermines the jury’s ability to perform its 
function as a buffer against governmental oppression 
and, in fact, converts the jury itself into an 
instrument of oppression.” 27 Charles A. Wright & 
Victor J. Gold, Fed. Prac. & Proc.: Evid. § 6074 (2d 
ed. 2007). Indeed, even a single juror harboring 
racial bias can infect every aspect of the deliberations 
and drastically alter the course of other jurors’ 
decision-making. See Dyer v. Calderon, 151 F.3d 970, 
973 (9th Cir.) (“The bias or prejudice of even a single 
juror would violate [the defendant’s right to a fair 
trial.”), cert, denied, 525 U.S. 1033 (1998); United 
States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.) (“If 
only one juror is unduly biased or prejudiced . . . the 
criminal defendant is denied his Sixth Amendment

5 The possibility that an individual could be sentenced to 
death by a racially biased jury and that a rule of evidence could 
trump constitutional protections and prevent any examination 
of such a claim is particularly troubling. See, e.g., Colin Miller, 
Dismissed with Prejudice: Why Application of the Anti-Jury 
Impeachment Rule to Allegations of Racial, Religious, or Other 
Bias Violates the Right to Present A Defense, 61 Baylor L. Rev. 
872, 897-98 (2009) (analyzing capital cases where Rule 606(b) 
was applied to prevent jurors from impeaching their verdicts 
with evidence of racial bias).



right to an impartial panel.”), cert, denied, 434 U.S. 
818 (1977).

Indeed, here the jury was initially unable to reach a 
verdict on any of the charges that Petitioner faced, 
and it ultimately failed to reach a verdict on the 
felony charge brought against him. Pet. 4. This sort 
of equivocation only confirms the likely reality that 
bias unfairly tilted the scales of justice.

B. This case presents a quintessential 
issue of racial bias in the jury system 
that warrants Supreme Court 
intervention.

Given this Court’s longstanding practice of 
remedying racial bias in the jury system, especially 
when there is a clear and intractable circuit split, the 
case at bar warrants this Court’s review. See 
generally Stern & Gressman, Supreme Court Practice 
222 et seq. (8th ed. 2002) (key guidelines for the 
exercise of certiorari jurisdiction include the 
emergence of circuit splits and the importance of the 
legal issue).

The facts here are appalling: After a jury convicted 
Petitioner on several misdemeanor charges, two 
jurors informed his counsel that another juror had 
infected the jury’s deliberations with racial animus. 
Specifically, the juror in question suggested that the 
jury should convict Petitioner on charges of 
attempted sexual assault, unlawful sexual conduct, 
and harassment, Pet. App. 3a, “because he’s Mexican 
and Mexican men take whatever they want.” Id. at 
4a. The same juror also contended that the jury 
should not believe Petitioner’s alibi witness because 
the witness was Hispanic. Id. at 4a-5a. Thereafter, 
Petitioner sought a new trial on the ground that his 
constitutional right to an impartial jury had been

10



11
violated. Over Justice Marquez’s vigorous dissent, 
the Colorado Supreme Court held that applying 
Colorado’s “no-impeachment” rule to bar courts from 
considering juror testimony of racial bias during 
deliberations is permissible under the 
Sixth Amendment.

The Colorado Supreme Court openly acknowledged 
that its decision had deepened the split of authority 
on a federal constitutional question. Id. at 23a n.4. 
Nonetheless, the court permitted the juror’s racist 
remarks about Petitioner’s guilt to go uninspected, id. 
at 16a, relying on dubious legal grounds regarding 
the relationship between constitutional rights and 
the rules of evidence, as discussed below, 
infra Part II.

Racial bias in jury deliberations continues to be a 
serious problem today, notwithstanding the progress 
that we, as a nation, have made towards greater 
equality and inclusion. In recent years, a number of 
courts across the country have faced incidents of 
racial animus in jury deliberations that are as 
offensive as those at issue here. See, e.g., Kittle v. 
United States, 65 A.3d 1144, 1147-48 (D.C. 2013) 
(jurors allegedly asserted that “all ‘blacks’ are guilty 
regardless”); State v. Brown, 62 A.3d 1099, 1106, 
1110 (R.I. 2013) (juror allegedly referred to Native 
American defendants as “those people” and 
mockingly beat water bottles “like tom-tom drums”); 
United States v. Villar, 586 F.3d 76, 81, 85-87 (1st 
Cir. 2009) (in case involving Hispanic defendant, one 
juror allegedly said “I guess we’re profiling but they 
cause all the trouble”); United States v. Benally, 546 
F.3d 1230, 1231 (10th Cir. 2008) (juror allegedly said, 
in case with Native American defendant, that “ [wjhen 
Indians get alcohol, they all get drunk, and . . . when



12
they get drunk, they get violent”).6 Many of those 
courts have rightly concluded that such expressions 
of race-based impartiality cannot go unaddressed.7

This is plainly an important issue given impartial 
juries are central to the fair administration of justice 
and in light of the range of circuits and states that 
are confronted with incidents of juror bias. Moreover, 
the constitutional law that applies to the Colorado 
Rules of Evidence also applies to the Federal Rules of 
Evidence, after which Colorado’s rules (and many 
other states’ equivalents) are modeled. See Pet. App.

6 See also, e.g., Commonwealth v. Laguer, 571 N.E.2d 371, 375 
(Mass. 1991) (during deliberations in aggravated rape trial, 
juror allegedly asserted that “spies screw all day and night” and 
alluded to defendant’s guilt); Shillcutt v. Gagnon, 827 F.2d 1155, 
1156 (7th Cir. 1987) (in prostitution case, white male juror 
commented about the defendant, “Let’s be logical. He’s black 
and he sees a seventeen year old white girl -  I know the type.”); 
United States v. Heller, 785 F.2d 1524, 1526 (11th Cir. 1986) 
(juror allegedly made ethnic slurs and jokes during trial of 
Jewish defendant).

7 See, e.g., Brown, 62 A.3d at 1110 (“no-impeachment” rule 
cannot preclude admission of testimony concerning jurors’ racial 
bias in deliberations where necessary to protect defendant’s 
constitutional right to fair trial by impartial jury); Villar, 586 
F.3d at 85-87 (trial court has discretion to conduct inquiry into 
jurors’ expressions of racial animus during deliberations under 
the Sixth Amendment and the Due Process Clause); Laguer, 571 
N.E.2d at 376 (Sixth Amendment requires consideration of juror 
testimony alleging racially biased statements during 
deliberations because “the possibility . . . that the defendant did 
not receive a trial by an impartial jury, which was his 
fundamental right, cannot be ignored”); Heller, 785 F.2d at 
1527-28 (reversing conviction of Jewish defendant in light of 
allegations that juror engaged in ethnic slurs and jokes during 
trial because it “displayed the sort of bigotry that clearly denied 
the defendant . . . the fair and impartial jury that the 
Constitution mandates”); see also Pet. 14-15.



7a (“Colorado’s rule is virtually identical to its 
federal counterpart.”).

This Court’s previous admonition remains as true 
today as ever before: We “cannot deny that . . . racial 
and other forms of discrimination still remain a fact 
of life, in the administration of justice as in our 
society as a whole. Perhaps today that 
discrimination takes a form more subtle than before. 
But it is not less real or pernicious.” Rose, 443 U.S. 
at 545. In short, “[rjace discrimination within the 
courtroom raises serious questions as to the fairness 
of the proceedings conducted there.” Edmonson, 500 
U.S. at 628. “If our society is to continue to progress 
as a multiracial democracy, it must recognize that the 
automatic invocation of race stereotypes retards that 
progress and causes continued hurt and injury.” Id. 
at 630-31. For all these reasons, the Court should 
adhere to its longstanding tradition of promoting 
fairness in the criminal justice system by reviewing 
the still-pressing issue of racial bias in the jury 
system once more.

C. If racial bias is allowed to infect jury 
deliberations with impunity, public 
confidence in the criminal justice 
system will be seriously undermined.

The jury exists, in part, to instill public confidence 
in our legal system, but when racial bias in jury 
deliberations is allowed to fester, this important trust 
is eroded. “ [T]he jury system performs the critical 
governmental functions of guarding the rights of 
litigants and ‘ensuring] continued acceptance of the 
laws by all of the people.’” Edmonson, 500 U.S. at 
624 (quoting Powers, 499 U.S. at 407); see also 
McCollum, 505 U.S. at 49 (“One of the goals of our 
jury system is ‘to impress upon the criminal 
defendant and the community . . . that a verdict . . .  is

13



14
given in accordance with the law by persons who are 
fair. . . (quoting Powers, 499 U.S. at 413).8 
Allowing racial prejudice in juries to proceed 
unchecked undermines these foundational 
constitutional and democratic values. “Racial bias 
mars the integrity of the judicial system and prevents 
the idea of democratic government from becoming a 
reality,” thereby “compound[ing] the racial insult 
inherent in judging a citizen by the color of his or her 
skin.” Edmonson, 500 U.S. at 628 (citations omitted).

As recurring majorities of this Court have made 
clear, racial discrimination in the jury system 
imposes at least two critical systemic harms:

First, prejudice in the jury system impairs the 
fairness of specific proceedings. See, e.g., id. 
(discrimination in the courtroom “raises serious 
questions as to the fairness of the proceedings 
conducted there”); Powers, 499 U.S. at 411 (“[Rjacial 
discrimination in the selection of jurors . . . places the 
fairness of a criminal proceeding in doubt.”). This, in 
turn, “destroys the appearance of justice and thereby 
casts doubt on the integrity of the judicial process” 
overall. Rose, 443 U.S. at 555-56; see also id. at 556 
(allowing jury partiality to fester “impairs the 
confidence of the public in the administration of 
justice”); J.E.B., 511 U.S. at 140 (unredressed juror 
prejudice “invites cynicism respecting the jury’s 
neutrality and its obligation to adhere to the law”); 
id. (noting the “inevitable loss of confidence in our 
judicial system that state-sanctioned discrimination 
in the courtroom engenders”). Indeed, bias in the jury

8 Indeed, this Court has made clear that “[t]he need for public 
confidence is especially high in cases involving race related 
crimes,” where “emotions in the affected community will 
inevitably be heated and volatile.” McCollum, 505 U.S. at 49.



15
system “undermine [s] the very foundation of our 
system of justice — our citizens’ confidence in it.” 
McCollum, 505 U.S. at 49-51.

Second, racial bias in the jury system injures the 
broader community and democratic ideals. See 
Ballard v. United States, 329 U.S. 187, 195 (1946) 
(“The injury is not limited to the defendant -  there is 
injury to the jury system, to the law as an institution, 
to the community at large, and to the democratic 
ideal reflected in the processes of our courts.”); see 
also 511 U.S. at 140 (“The community is
harmed by the State’s participation in the 
perpetuation of invidious group stereotypes.”); 
Batson, 476 U.S. at 87 (explaining that the harm 
“extends beyond that inflicted on the defendant and 
the excluded juror to touch the entire community”). 
And, as this Court repeatedly has emphasized, race- 
based discrimination in juries “‘is at war with our 
basic concepts of a democratic society and a 
representative government.’” Rose, 443 U.S. at 556 
(quoting Smith v. Texas, 311 U.S. 128, 130 (1940)).

The Court’s failure to intervene in this case leaves 
untouched an outcome likely to erode public trust in 
the criminal justice system. In the instant case, two 
jurors lodged affidavits averring that a third juror 
urged the jury to convict Petitioner “because he’s 
Mexican and Mexican men take whatever they want” 
-  a statement that speaks directly to the defendant’s 
guilt and motive -  and challenged on racial grounds 
an alibi witness’s credibility.9 Permitting such

9 In some instances, a racial epithet alone will — in light of its 
substance and context — be egregious enough to raise a 
presumption of bias. See generally Brief of the NAACP Legal 
Defense and Educational Fund, Inc. as Amicus Curiae in 
Support of Petitioner, Sterling v. Dretke, 117 Fed. App’x 328 (5th



16
prejudice to stand without redress would lead to 
fundamental unfairness in Petitioner’s case, 
significant impairment of public confidence in our 
system of justice, and broader wounds to our society 
and its democratic ideals. The Court should not 
countenance such racial bias expressed by the 
representative of an institution designed to ensure 
fairness and equality in our criminal justice system.

It is especially important for this Court to continue 
its longstanding commitment to the eradication of 
racial discrimination in the jury system because such 
forms of racial bias have deep and obdurate roots. 
Throughout the post-Civil War period, and even as 
this Court began to overturn state laws restricting 
jury service based on race, these forms of exclusion 
and bias persisted. See, e.g., Michelle Alexander, The 
New Jim Crow: Mass Incarceration in the Age of 
Colorblindness 119 (2010) (tracing the return of the 
all-white jury during the Reconstruction era). In 
some instances, biased juries issued verdicts as a 
symbol of resistance to integration and civil rights 
laws. See, e.g., John C. Tucker, Trial and Error: The 
Education of a Courtroom Lawyer 288 (2003) (jury 
foreman said he hoped that the verdict, ruling 
against Black homeowners in a housing segregation 
case, would help end “the mess Earl Warren made 
with Brown v. Board of Education and all that 
nonsense”). In others, prejudiced juries issued 
indictments in ways that endorsed or exacerbated 
racial violence. See, e.g., Charles Abrams, Forbidden 
Neighbors: A Study of Prejudice in Housing 103-19

Cir.) (unpublished), cert, denied, 544 U.S. 1053 (2005), 2005 WL 
952252 (Apr. 22, 2005). But here, we have more than a 
presumption of bias; the juror’s expressed stereotype spoke 
directly to the defendant’s guilt and motive and to an alibi 
witness’s credibility.



17
(1955), in The Suburb Reader 328-30 (Becky M. 
Nicolaides & Andrew Wiese eds., 2006) (grand jury 
refused to indict the white mob that attacked the 
family of a Black veteran that had moved into an all- 
white apartment building, instead charging the 
family’s NAACP attorney and the apartment 
building’s owner, attorney, and agent).

Throughout the course of the twentieth century and 
continuing to the modern day, this Court has 
understood that the problem of racial prejudice in 
juries is especially damaging to the integrity of the 
judicial system and our nation’s democratic ideals. 
This Court’s decisions, therefore, have consistently 
treated racial bias as a uniquely injurious problem 
meriting an exceptional legal response. See, e.g., 
Edmonson, 500 U.S. at 618 (referencing “over a 
century of jurisprudence dedicated to the elimination 
of race prejudice within the jury selection process”). 
The Court should grant the Petition in this case in 
order to ensure public faith in the jury verdict and 
the judicial process as a whole.

II. THE COLORADO SUPREME COURT 
FUNDAMENTALLY MISAPPREH­
ENDED THE CONSTITUTIONAL 
SIGNIFICANCE OF RACIAL BIAS IN 
JURIES.

At the most basic level, the Colorado Supreme 
Court failed to recognize this Court’s repeated 
holdings about the special salience of racial bias in 
the jury system. As explained above, this Court has 
long emphasized a constitutional imperative to 
remove racial animus -  an “especially pernicious” 
form of bias — from the criminal justice system. See 
Rose, 443 U.S. at 555-56. Yet, nowhere did the 
Colorado Supreme Court even cite to any of this 
Court’s precedents regarding how “racial animus”



18
intolerably “distort[s] our system of criminal justice.” 
McCollum, 505 U.S. at 58. Nor did the Colorado 
court acknowledge this Court’s jurisprudence making 
clear that the failure to redress racial prejudice in a 
jury subverts the foundational purposes of the right 
to a jury trial. See id. at 49-51. Indeed, it was only 
the dissent below that pointed out how “[rjacial bias 
differs from other forms of bias in that it 
compromises institutional legitimacy.” Pet. App. 25a.

Instead, the Colorado Supreme Court majority 
erroneously equated constitutional principles with 
evidentiary rules. Pet. App. 2a (comparing “two 
fundamental tenets”: “a defendant’s constitutional
right to an impartial jury” and the protections of the 
state’s “no-impeachment” rule). The court plainly 
erred in according rules of evidence the same legal 
weight as a core provision of our federal constitution. 
See U.S. Const. Art. VI (Supremacy Clause); 
Crawford v. Washington, 541 U.S. 36, 51 (2004) 
(“ [W]e once again reject the view that the 
Confrontation Clause[’s] . . . application . . . depends 
upon ‘the law of Evidence for the time being.’”); 27 
Wright & Gold § 6074 (“Evidentiary rules that 
insulate from discovery the violation of constitutional 
rights may themselves violate those rights.”). This 
gross error alone invites the Court’s intervention.

Given that the U.S. Constitution, especially the 
Sixth Amendment’s impartial jury trial right, values 
the need for public confidence in the judicial process, 
supra Part II.C, it is particularly ironic that the 
Colorado Supreme Court invoked the public 
confidence stemming from the privacy and finality of 
jury verdicts to support its decision to bypass the 
Sixth Amendment. The majority opinion got it 
precisely backwards.



19
Indeed, in Aldridge v. United States, 283 U.S. 308 

(1931), this Court expressly rejected the argument 
“that it would be detrimental to the administration of 
the law in the courts of the United States to allow 
questions to jurors as to racial or religious 
prejudices,” id. at 314-15, on the ground that “it 
would be far more injurious to permit it to be thought 
that persons entertaining a disqualifying prejudice 
were allowed to serve as jurors and that inquiries 
designed to elicit the fact of disqualification were 
barred,” id. at 315. Here, too, there would be “[n]o 
surer way . . .  to bring the processes of justice into 
disrepute,” id., than to insulate a juror’s racial bias 
from judicial scrutiny or redress.

Even if it were a close call as to whether the Sixth 
Amendment should give way to evidentiary rules -  
which it is not -  this Court has evinced particular 
concern for the public “impression that the judicial 
system has acquiesced” to certain forms of 
discrimination “or that the ‘deck has been stacked’ in 
favor of one side.” J.E.B., 511 U.S. at 140. “The fear 
that too much scrutiny of jury deliberations would 
undermine public confidence in jury verdicts ignores 
the demoralizing effect on public confidence caused 
by reports that jurors are racist, but evidence of their 
racism is not admissible to overturn their verdicts.” 
Note, Racist Juror Misconduct During Deliberations, 
101 Harv. L. Rev. 1595, 1600 (1988) (footnote 
omitted). “Permitting defendants to expose racially 
tainted deliberations gives the public — particularly 
[communities of color] -  more reason, not less, to trust 
the final results of the criminal justice system.” Id.

In fact, this Court has already recognized that 
“[t]here may be cases of juror bias so extreme that, 
almost by definition, the jury trial right has been 
abridged. If and when such a case arises, the Court



20
can consider whether the usual safeguards are or are 
not sufficient to protect the integrity of the process.” 
Warger v. Shauers, 135 S. Ct. 521, 529 n.3 (2014). In 
other contexts, members of this Court have 
recognized the desirability of having a postconviction 
hearing “to determine whether a juror is biased.” 
Phillips, 455 U.S. at 221-22 (O’Connor, J., 
concurring); see also id. (noting that there “are some 
extreme situations that would justify a finding of 
implied bias”). This case, in which a juror expressly 
urged the jury to convict a defendant based on his 
race, presents exactly the sort of “extreme” situation 
that the Court noted in Warger.

The remainder of the Colorado Supreme Court’s 
reasoning about the costs and benefits of ignoring 
racial bias in the jury system is deeply flawed. 
Concerns about attorney harassment alone cannot 
support an unbounded application of Rule 606(b), 
because many jurors volunteer information about 
racial bias in deliberations, and the rule otherwise 
contains exceptions allowing testimony about 
“outside influence” and “extraneous information.” 
See, e.g., 27 Wright & Gold § 6072 (noting that 
“sometimes a juror volunteers to take the stand, 
coming forward not as a result of an attorney ‘fishing 
expedition,”’ and that Rule 606(b) “contains 
exceptions permitting testimony about ‘extraneous 
information’ and ‘outside influence’”); Edward T. 
Swaine, Pre-Deliberations Juror Misconduct, 
Evidential Incompetence, and Juror Responsibility, 98 
Yale L.J. 187, 194 (1988) (noting the “evident 
willingness of jurors to volunteer information” and 
explaining Rule 606(b)’s exceptions arguably 
“permitQ good faith attempts to discover evidence 
relating to an ‘outside influence”’); see also Racist 
Juror Misconduct During Deliberations, 101 Harv. L.



21
Rev. at 1599 (“[A]n exception for testimony
pertaining to racist juror misconduct would not 
significantly impair rule 606(b),” yet “would promote 
universally accepted countervailing interests -  the 
defendant’s and society’s interests in having a 
criminal justice system free of racial bias.”).

Further, the Colorado Supreme Court failed to 
consider that other protections sufficiently address 
the valid policy concerns underlying Rule 606(b). See 
e.g., Nicholas S. Bauman, “Extraneous Prejudicial 
Information”: Remedying Prejudicial Juror
Statements Made During Deliberations, 55 Ariz. L. 
Rev. 775, 798, 802 & nn.245-47 (2013) (describing 
other rules some jurisdictions have adopted to protect 
jurors from harassment); Benjamin T. Huebner, 
Beyond Tanner: An Alternative Framework for 
Postverdict Juror Testimony, 81 N.Y.U. L. Rev. 1469, 
1493-95 (2006) (noting that states place other limits 
on attorneys or their investigators contacting jurors 
after trial). And it was erroneous for the Colorado 
Supreme Court majority to think that voir dire could 
root out racial bias in jury deliberations, see Pet. 21- 
25, because jurors are unlikely to publicly admit to 
their own racial prejudices, Pet. 23-24, and jurors’ 
unconscious biases may later manifest as explicit bias 
during deliberations.10

10 See, e.g., Mark W. Bennett, Unraveling the Gordian Knot of 
Implicit Bias in Jury Selection: The Problems of Judge- 
Dominated Voir Dire, the Failed Promise of Batson, and 
Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 152 (2010) 
(“Implicit biases . . . are unstated and unrecognized and operate 
outside of conscious awareness. Social scientists refer to them 
as hidden, cognitive, or automatic biases, but they are 
nonetheless pervasive and powerful.”); Pet. 23 (discussing 
observations of federal judge on unconscious bias).



22
On balance, courts are readily equipped to deal 

with extreme and extraordinary instances of juror 
bias, such as those in this case, and should not ignore 
a defendant’s Sixth Amendment impartial jury trial 
right irrespective of governing evidentiary rules. See 
Pet. 26, 29. The constitutional imperative to 
guarantee a fair and impartial trial to all criminal 
defendants takes primacy over any countervailing 
evidentiary concerns, and this Court should resolve 
the existing circuit split to make that mandate clear 
and unequivocal.

CONCLUSION
For the foregoing reasons, the petition for a writ of 

certiorari should be granted.
Respectfully submitted,

Sherrilyn Ifill 
Director-Counsel 

Janai Nelson 
Christina Swarns 
Jin Hee Lee 
Liliana Zaragoza 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, NY 10006

December 10, 2015

John Paul Schnapper- 
Casteras *

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I Street NW 
Washington, DC 20005 
202-682-1300 
jschnapper@naacpldf.org

* Counsel of Record

mailto:jschnapper@naacpldf.org