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

    No. 15-606

In The

mpreme Court of tf)e Untteb is>tate£

Miguel Angel Pena-Rodriguez
Petitioner,

v.

State of Colorado,

Respondent.

On Writ of Certiorari to the 
Colorado Supreme Court

BRIEF OF AMICI CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC., THE NATIONAL ASSOCIATION 

OF CRIMINAL DEFENSE LAWYERS, AND THE 
AMERICAN CIVIL LIBERTIES UNION 

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

June 30, 2016

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

[Additional Counsel On Inside Cover]

mailto:jschnapper@naacpldf.org


R. Reeves Anderson 
Holly E. Sterrett 
Arnold & Porter LLP 
370 Seventeenth Street 
Suite 4400 
Denver, CO 80202
Counsel for the National Association of Criminal 

Defense Lawyers

Barbara Bergman 
Co-Chair, Amicus Committee 

National Association of Criminal Defense Lawyers 
1117 Stanford, N.E.
Albuquerque, NM 87106

Steven R. Shapiro
American Civil Liberties Union Foundation 
125 Broad Street 
New York, NY 10004



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

SUMMARY OF ARGUMENT................................ 3
ARGUMENT................................................................. 6
I. THE RIGHT TO AN IMPARTIAL JURY 

INCLUDES THE RIGHT TO A JURY 
DETERMINATION UNCORRUPTED BY 
RACIAL PREJUDICE............................................ 7

A. The Colorado Supreme Court 
Misapprehended the Constitutional 
Import of Racial Prejudice in the Jury 
System as a Uniquely Harmful and 
Critical Issue...................................................9

B. Policy Concerns Underlying No- 
Impeachment Rules Cannot Override 
Constitutional Rights..................................14

II. EXCLUDING EXPLICIT EVIDENCE OF 
RACIAL DISCRIMINATION IN JURIES 
WOULD SERIOUSLY UNDERMINE 
PUBLIC CONFIDENCE IN THE CRIMINAL 
JUSTICE SYSTEM.............................................. 20

A. Racial Prejudice in the Jury System
Damages Individual Proceedings, 
Community Perceptions, and
Democratic Principles...................................21

B. A Court’s Refusal to Consider Whether a
Verdict is Tainted by Racial Prejudice 
Erodes Public Confidence.............................23

CONCLUSION...........................................................26



TABLE OF AUTHORITIES

Cases

ii

Aldridge v. United States,
283 U.S. 308 (1931)............................................... 23

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

Ballard v. United States,
329 U.S. 187 (1946)......................................... 21, 22

Batson v. Kentucky,
476 U.S. 79 (1986)................................... 1, 8, 10, 21

Berghuis u. Smith,
559 U.S. 314 (2010)............................................... 18

Buck v. Stephens,
630 F. App’x 251 (5th Cir. 2015), cert.
granted, No. 15-8049, 2016 WL 531661
(U.S. June 6, 2016)....................................................2

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

Chambers v. Mississippi,
410 U.S. 284 (1973)...............................................  15

Commonwealth v. Laguer,
571 N.E.2d 371 (Mass. 1991).................................25

Crawford v. Washington,
541 U.S. 36 (2004).................................................. 14



Ill

Duncan v. State of Louisiana,
391 U.S. 145 (1968).............................................. 7-8

Duren v. Missouri,
439 U.S. 357 (1979)..............................................  18

Dyer v. Calderon,
151 F.3d 970 (9th Cir.), cert, denied,
525 U.S. 1033 (1998)............................................  10

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

Foster v. Chatman,
136 S. Ct. 1737 (2016)..................................... 11, 18

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

Glasser v. United States,
315 U.S. 60 (1942)................................................... 8

Gray v. Mississippi,
481 U.S. 648 (1987)..............................................  18

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

Hobby v. United States,
468 U.S. 339 (1984).............................................. 22

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)................................................1

Kittle v. United States,
65 A.3d 1144 (D.C. 2013)...................................... 25

Little v. United States,
73 F.2d 861 (10th Cir. 1934)................................. 14

McDonald v. Pless,
238 U.S. 264 (1915)...............................................  15

Miller-El v. Cockrell,
537 U.S. 322 (2003)...................................................1

Miller-El v. Dretke,
545 U.S. 231 (2005)...............................................  10

Patterson v. Alabama,
294 U.S. 600 (1935)...................................................3

Perkins v. LeCureux,
58 F.3d 214 (6th Cir. 1995),
cert, denied, 516 U.S. 992 (1995)......................... 16

Peters v. Kiff,
407 U.S. 493 (1972).................................................21

Powell v. Alabama,
287 U.S. 45 (1932).....................................................3

Powers v. Ohio,
499 U.S. 400 (1991)........................................ passim

Ristaino v. Ross,
424 U.S. 589 (1976)...............................................  12

iv



V
Rose v. Mitchell,

443 U.S. 545 (1979).............................. 9, 13, 21, 22

Sheppard v. Maxwell,
384 U.S. 333 (1966)............................................... 23

Shillcutt v. Gagnon,
827 F.2d 1155 (7th Cir. 1987).............................. 25

Smith v. Brewer,
444 F. Supp. 482 (S.D. Iowa 1978), aff’d,
577 F.2d 466 (8th Cir.), cert, denied,
439 U.S. 967 (1978)................................................ 25

Smith v. Phillips,
455 U.S. 209 (1982)................................................ 16

Smith v. Texas,
311 U.S. 128 (1940)................................................ 22

Snyder v. Louisiana,
552 U.S. 472 (2008)........................................... 10-11

Strauder v. West Virginia,
100 U.S. 303 (1879)...............................................  10

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)............................ 25

United States v. Heller,
785 F.2d 1524 (11th Cir. 1986) 25



VI
United States v. Hendrix,

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

United States v. Henley,
238 F.3d 1111 (9th Cir. 2001)...............................25

United States v. Reid,
53 U.S. (12 How.) 361 (1851).......................... 15-16

United States v. Shalhout,
507 F. App’x 201 (3d Cir. 2012)........................... 25

United States v. Villar,
586 F.3d 76 (1st Cir. 2009)....................................25

Warger u. Shauers,
135 S. Ct. 521 (2014).............................................  12

Williams v. Pennsylvania,
579 U.S. No. 15-5040, 2016 WL
3189529 (U.S. June 9, 2016)..................................20

Constitutional Provisions

U.S. Const. Amend. VI....................................................7

U.S. Const. Amend. XIV.................................................7

U.S. Const. Art. VI........................................................ 14



Other Authorities

Alexis de Tocqueville, Democracy in America
(Henry Reeve trans., George Adlar 1840)...... 9, 20

Barbara E. Bergman et al., Wharton’s
Criminal Evidence (15th ed. 1999)...................... 15

Benjamin T. Huebner, Beyond Tanner: An 
Alternative Framework for Postverdict 
Juror Testimony, 81 N.Y.U. L. Rev.
1469 (2006)............................................................. 18

Brief of the NAACP Legal Defense and
Educational Fund, Inc. as Am icus 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) ....................................................... 16

Charles Abrams, Forbidden Neighbors: A 
Study of Prejudice in Housing (1955) in 
The Suburb Reader (Becky M. Nicolaides 
& Andrew Wiese eds., 2006)..................................11

Charles A. Wright & Victor J. Gold, Fed.
Prac. & Proc.: Evid. (2d ed. 2016)................passim

CNN/ORC Poll of December 22, 2014,
http://i2.cdn.turner.com/cnn/2014/images/ 
12/22/cnn.poll. 12.22................................................ 24

http://i2.cdn.turner.com/cnn/2014/images/


Vlll
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)................................................... 10

Edmonson v. Leesville Concrete Co.,
No. 89-7743, 1991 WL 636291 (U.S. Oral
Arg., Jan. 15, 1991)...................................................6

Edward J. Imwinkelreid & Paul C.
Giannelli, Courtroom Criminal Evidence 
(Lexis Nexis, 5th ed. 2015)............................. 14, 15

Edward T. Swaine, Pre-Deliberations Juror 
Misconduct, Evidential Incompetence, 
and Juror Responsibility, 98 Yale L. J.
187 (1988)...............................................................  17

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

Fed. R. Evid. 606 Advisory
Committee’s Notes.....................................................7

Federal Evidence (4th ed. 2016).................................. 15

George Gallup, Jr., The Gallup Poll: Public
Opinion (1996).........................................................24

John C. Tucker, Trial and Error: The
Education of a Courtroom Lawyer (2003)............  11



IX
King’s Dream Remains an Elusive Goal;

Many Americans See Racial Disparities,
Pew Research Ctr. (Aug. 22, 2013), 
http://www.pewsocialtrends.org/2013/08/ 
22/kings-dream-remains-an-elusive-goal- 
many-americans-see-racial-disparities/.........24-25

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).......................................................19

Nicholas S. Bauman, “Extraneous
Prejudicial Information”: Remedying 
Prejudicial Juror Statements Made 
During Deliberations,
55 Ariz. L. Rev. 775 (2013).................................... 17

Racist Juror Misconduct During 
Deliberations, 101 Harv. L. Rev.
1595 (1988)......................................................  17, 23

Reason-Rupe Public Opinion Survey,
October 2014 National Telephone Survey, 
Reason-Rupe, http://reason.com/assets/ 
db/1412808480505.xlsx.......................................... 24

Richard Kluger, Simple Justice (Vintage
Books, 1977 ed.)................................................. 12-13

http://www.pewsocialtrends.org/2013/08/
http://reason.com/assets/


Robert P. Jones, Daniel Cox & Juhem 
Navarro-Rivera, Economic Insecurity,
Rising Inequality, and Doubts about the 
Future: Findings from the 2014 American 
Values Survey, Pub. Religion Research 
Inst. (Sept. 23, 2014), 
http://publicreligion.org/site/wp- 
content/uploads/2014/11/
PRRI-AVS-with-Transparancy-Edits.pdf............24

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........................................................2

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

William Blackstone, Commentaries on the 
Laws of England (William D. Lewis ed.,
Rees Welsh & Co. 1900) 8-9, 16

http://publicreligion.org/site/wp-content/uploads/2014/11/
http://publicreligion.org/site/wp-content/uploads/2014/11/
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
http://www.naacpldf.org/document/ldf-testimony-presidents-task-force-21st-century-policing
http://www.naacpldf.org/document/ldf-


INTEREST OF AMICI CURIAE 1
The NAACP Legal Defense & Educational Fund, Inc. 

(“LDF’) is the nation’s first and foremost civil rights 
law organization. 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 have a disproportionate negative impact 
on communities of color, especially African Americans. 
For example, LDF served as counsel of record in cases 
challenging racial bias in the criminal justice system, 
including 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 v. Jury 
Commission, 396 U.S. 320 (1970), and Turner v. 
Fouche, 396 U.S. 346 (1970); and appeared as amicus 
curiae in cases involving the use of race in peremptory 
challenges in Johnson v. California, 543 U.S. 499 
(2005), Miller-El v. 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

1

1 Pursuant to Supreme Court Rule 37.6, counsel for amici 
curiae state that no counsel for a party authored this brief in 
whole or in part and that no person other than amici curiae, their 
members, or their counsel made a monetary contribution to the 
preparation or submission of this brief. All parties have 
consented to the filing of this brief.



2
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 
confidence and trust in our public institutions.2 LDF 
is also lead counsel in Buck v. Stephens, 630 F. App’x 
251 (5th Cir. 2015), cert, granted, No. 15-8049, 2016 
WL 531661 (U.S. June 6, 2016), a case involving the 
explicit use of race in capital sentencing in which this 
court recently granted certiorari.

The National Association of Criminal Defense 
Lawyers (NACDL) is a nonprofit voluntary 
professional bar association that works on behalf of 
criminal defense attorneys to ensure justice and due 
process for those accused of crime or misconduct. 
Founded in 1958, NACDL has a nationwide 
membership of 9,000 direct members and up to 40,000 
with affiliates. NACDL’s members include private 
criminal defense lawyers, public defenders, military 
defense counsel, law professors, and judges. NACDL is 
the only nationwide professional bar association for 
public defenders and private criminal defense lawyers. 
NACDL is dedicated to advancing the proper, efficient, 
and just administration of justice. NACDL files 
numerous amicus briefs each year in the U.S. Supreme 
Court and other federal and state courts, seeking to

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
provide amicus assistance in cases that present issues 
of broad importance to criminal defendants, criminal 
defense lawyers, and the criminal justice system as a 
whole. NACDL has a particular interest in ensuring 
that rules of evidence are interpreted and applied in a 
manner consistent with a criminal defendant’s 
constitutional right to a full and fair trial by an 
impartial jury.

The American Civil Liberties Union (ACLU) is a 
nationwide, nonprofit, nonpartisan organization with 
approximately 500,000 members dedicated to the 
principles of liberty and equality embodied in the 
Constitution. Since its involvement in the Scottsboro 
cases more than 80 years ago, Powell v. Alabama, 287 
U.S. 45 (1932) and Patterson v. Alabama, 294 U.S. 600 
(1935), the ACLU has been deeply engaged in 
identifying and addressing the persistence of racial 
discrimination in our criminal justice system—from 
policing to prosecution to sentencing—and has 
appeared before this Court in numerous cases raising 
those issues, both as direct counsel and as amicus 
curiae.

Given their expertise in matters concerning the 
influence of race on the criminal justice system, amici 
believe their perspective would be helpful to the Court 
in resolving the important constitutional issues 
presented by this case.

INTRODUCTION AND 
SUMMARY OF ARGUMENT

This case involves the extreme and explicit injection 
of racial prejudice into a jury’s deliberative process— 
through, in part, a juror’s use of racial slurs and 
stereotypes linking race to criminality. During 
deliberations on the guilt or innocence of Petitioner, 
Miguel Angel Pena-Rodriguez, one juror repeatedly



4
urged his fellow jurors to use Mr. Pena-Rodriguez’s 
ethnicity as a basis for conviction. The juror argued 
that Mr. Pena-Rodriguez was guilty “because he’s 
Mexican and Mexican men take whatever they want.” 
Pet. App. 4a-5a. The juror referenced his own 
experience as an ex-law enforcement officer” where he 

purportedly observed on “patrol, nine times out of ten 
Mexican men were guilty of being aggressive toward 
women . . . .” Id. This juror also asserted that an alibi 
witness’s testimony was not credible because he was 
an “illegal” (in fact, the witness was a lawful 
permanent resident). Pet. Br. 8.

This egregious display of racial bias was voluntarily 
reported by two concerned members of the same jury 
and decisively documented in affidavits. Yet, the 
Colorado Supreme Court held that, notwithstanding 
the Sixth Amendment’s guarantee of an impartial 
jury, this extreme misconduct was insulated from 
judicial review because the state rules of evidence 
generally bar the admission of juror testimony to 
impeach a jury verdict (the “no-impeachment” rule).

Amici represent three leading legal organizations 
that work on a wide range of civil rights, civil liberties, 
racial justice, and criminal justice issues in 
jurisdictions across the country. Two of the amici filed 
briefs at the certiorari stage in this case, to elucidate 
the important issues that it raises. Now, all three join 
together to urge the Court to recognize the 
constitutional limits of the “no-impeachment” rule in 
cases involving racially-prejudiced juror misconduct, 
and to highlight two key reasons for reversing the 
Colorado Supreme Court.

First, for over a century, this Court has strived to 
eradicate racial bias from our criminal justice system 
writ large. Because racial bias and discrimination in 
the jury system uniquely undermines the proper



5
functioning of the criminal justice system, this Court 
has consistently treated such discrimination as an 
exceptional harm that requires exceptional remedies. 
Recent national events exposing the stubborn 
persistence of racial bias in the administration of 
criminal justice powerfully reinforce the continued 
need for this Court’s commitment to fair and race- 
neutral criminal proceedings.

Yet, despite this Court’s longstanding concerns, the 
Colorado Supreme Court fundamentally misconstrued 
the constitutional significance of racial bias in jury 
deliberations. It failed to appreciate this Court’s well- 
established precedents addressing both the special 
harms of racial bias in jury decision-making and the 
critical importance of public confidence in the 
operation of our system of justice. In doing so, the 
Colorado Supreme Court subjugated Mr. Peha- 
Rodriguez’s federal Sixth Amendment rights to the 
state policy concerns that animate Colorado’s state 
rules of evidence.

Second, allowing racial bias to fester in the jury 
system has grave ramifications for public confidence in 
the criminal justice system at several levels. Leaving 
the lower court’s decision in place raises the risk of 
apparent and actual bias for an individual facing 
criminal charges in what should be fair and impartial 
judicial proceedings. It erodes community trust in the 
objectivity and accuracy of jury verdicts and the legal 
system overall. It also undermines central democratic 
ideals of fairness and equality that the jury and the 
Sixth Amendment’s guarantee of impartiality aim to 
uphold. Thus, the Colorado Supreme Court’s refusal 
to allow the lower court to even consider the 
undisputed racial prejudice that tainted Mr. Peha- 
Rodriguez’s jury deliberations not only harmed Mr. 
Pena-Rodriguez in a very tangible way, but also



6
undermined public confidence in this particular jury 
verdict and the fair operation of the judicial system 
generally.

Were this Court to affirm Colorado’s decision to 
insulate overt juror racial discrimination, it would 
send an ominous signal to jurors, judges, defendants, 
and the public that the courts condone racially biased 
verdicts. As this Court has repeatedly declared, 
however, this simply cannot be true. Given the 
egregiousness of this case and the growing public 
concerns about racial bias in our criminal justice 
system, it is imperative for this Court to reaffirm its 
existing precedents regarding the sanctity of the Sixth 
Amendment and the integrity of the justice system.

Ultimately, defendants and jurors alike should be 
able to enter the courthouse, “believing that times 
ha[ve] changed” and “confident that justice . . . [will] 
be guided by the promise .. . that they would be judged 
not by the color of their skin, but by the content of their 
character.”3 That promise was broken for Mr. Pena- 
Rodriguez, but this Court can and should restore that 
covenant by correcting the overt and extreme racial 
prejudice that infected the jury verdict in the 
proceedings below.

ARGUMENT
After two jurors came forward to report how racial 

animus had tainted the jury’s deliberations, Mr. Pena- 
Rodriguez claimed that this prejudice violated his 
Sixth Amendment constitutional right to trial “by an

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



7
impartial jury,” U.S. Const. Amend. VI,4 and sought a 
new trial. A bare majority of the Colorado Supreme 
Court affirmed Mr. Pena-Rodriguez’s conviction based 
on Colorado’s “no-impeachment” rule, which closely 
mirrors Federal Rule of Evidence 606(b) and reflects 
the general common law practice that juror testimony 
is not normally admissible to impeach a jury verdict.5 
Amici urge this Court to make clear that the Sixth 
Amendment right to an impartial jury indisputably 
trumps the policy considerations underlying state 
evidentiary rules—especially where, as here, a juror 
contaminated the deliberation process with egregious 
and explicit racial bias.

I. THE RIGHT TO AN IMPARTIAL JURY 
INCLUDES THE RIGHT TO A JURY 
DETERMINATION UNCORRUPTED 
BY RACIAL PREJUDICE.

For over a century, strong majorities of this Court 
have repeatedly recognized that racial prejudice in the 
jury system is an exceptional problem meriting 
recurrent and decisive interventions. This is because 
the right to a trial reflects “a fundamental decision 
about the exercise of official power—a reluctance to 
entrust plenary powers over the life and liberty of the 
citizen to one judge or to a group of judges,” rather 
than a defendant’s fellow citizens. Duncan v. State of

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.

5 The Rule says 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.



8
La., 391 U.S. 145, 155-56 (1968). This investiture of 
judicial power in the community upholds democratic 
principles of sovereignty and legitimacy by “ensuring] 
continued acceptance of the laws by all of the people.” 
Edmonson, 500 U.S. at 624 (quoting Powers v. Ohio, 
499 U.S. 400, 407 (1991)) (internal quotation marks 
omitted).

Juries also serve as the principal means of protecting 
the American citizenry from the State’s potential 
misuse of its broad powers to confine or execute its 
citizens. See, e.g., Glasser v. United States, 315 U.S. 
60, 84 (1942) (the jury serves as the “prized shield 
against oppression”); Batson v. Kentucky, 476 U.S. 79, 
86 (1986) (“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.”); see also Batson, 476 
U.S. at 87 (arguing that juries ensure the ‘“protection 
of life and liberty against race or color prejudice.’”) 
(citation omitted). The right to an impartial jury trial 
establishes “an inestimable safeguard against the 
corrupt or overzealous prosecutor and against the 
compliant, biased, or eccentric judge,” “preventfs] 
oppression by the Government,” and “protect[s] 
against unfounded criminal charges” and “arbitrary 
law enforcement.” Duncan, 391 U.S. at 155-56. 
Indeed, jurists and historians alike have long 
recognized these critical functions of the jury, dating 
back to our nation’s founding.6

6 See, e.g., Irvin v. Dowd, 366 U.S. 717, 721 (1961) (“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.”); see also 3 Blackstone, 
William, Commentaries on the Laws of England *380 (William D.



9
In order to ensure that the jury is able to fulfill these 

vital functions, this Court has enacted a range of 
procedural safeguards and substantive requirements. 
Chief among them is the right to a jury untainted by 
racial bias because “[a] juror who allows racial. . . bias 
to influence assessment of the case breaches the 
compact [between judge and jury] and renounces his 
or her oath.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 
127, 153 (1994) (Kennedy, J., concurring in the 
judgment). Indeed, this Court has unequivocally 
declared that “discrimination on the basis of race, 
odious in all aspects, is especially pernicious in the 
administration of justice,” Rose v. Mitchell, 443 U.S. 
545, 555 (1979); see also id. at 558-59, and “nothing 
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,” 

511 U.S. at 154.
A. The Colorado Supreme Court 

Misapprehended the Constitutional 
Import of Racial Prejudice in the Jury 
System as a Uniquely Harmful and 
Critical Issue.

“It [would be] an affront to justice to argue that a fair 
trial includes the right to discriminate against a group 
of citizens based upon their race.” Georgia v. 
McCollum, 505 U.S. 42, 57 (1992). Jury-related 
discrimination is inimical to our judicial system and

Lewis ed., Rees Welsh & Co. 1900) (stressing the significance of 
unbiased jury members, who are “the best investigators of truth, 
and the surest guardians of public justice.”); 1 Alexis de 
Tocqueville, Democracy in America 282 (Henry Reeve trans., 
George Adlar 1840) (arguing that jury service is “as direct and as 
extreme a consequence of the sovereignty of the people as 
universal suffrage”).



10
“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 
v. West Virginia, 100 U.S. 303, 308 (1879)). In the 
context of criminal proceedings, the taint of racial bias 
can contaminate critical decisions affecting a 
defendant’s liberty, life, and death.7 A single juror 
harboring racial bias can infect every aspect of the 
deliberations and undermine the integrity of the 
particular case and the justice system as a whole.8

With respect to jury selection, this Court has 
consistently vacated criminal convictions that were 
compromised by racial bias because “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. 
See also Powers, 499 U.S. at 411 (referencing a 
defendant’s “right to be tried by a jury free from ethnic 
. . . [or] racial . . . prejudice”); Batson, 476 U.S. 79; 
Miller-El v. Dretke, 545 U.S. 231 (2005); Snyder v.

7 Especially troubling is 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. 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).

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



11
Louisiana, 552 U.S. 472 (2008); Foster v. Chatman, 
136 S. Ct. 1737 (2016). “ [0]ver a century of
jurisprudence [has been] dedicated to the elimination 
of race prejudice within the jury selection process.” 
Edmonson, 500 U.S. at 618 (concluding that racial 
discrimination in the jury system is impermissible in 
civil, as well as criminal, proceedings).

While racial discrimination in jury selection centers 
on an attorney’s discriminatory use of peremptory 
challenges to exclude members of protected groups 
from the jury, as opposed to the racial discrimination 
exhibited by a seated juror during jury deliberations, 
both forms of discrimination undermine the integrity 
of the jury process and public confidence in the justice 
system. “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.” J.E.B., 511 U.S. at 
153 (Kennedy, J., concurring in the judgment).9 
Indeed, race discrimination should play no part in the 
justice system at any stage: “In our heterogeneous

9 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 (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).



12
society policy as well as constitutional considerations 
militate against the divisive assumption—as a per se 
rule—that justice in a court of law may turn upon the 
pigmentation of skin, the accident of birth, or the 
choice of religion.” Ristaino v. Ross, 424 U.S. 589, 596 
n.8 (1976) (emphasis added).

In the jury deliberation context, this Court has 
warned that “ [tjhere may be cases of juror bias so 
extreme that, almost by definition, the jury trial right 
has been abridged,” Warger v. Shauers, 135 S. Ct. 521, 
529 n.3 (2014). If this case, involving multiple 
statements of overt racial and ethnic bias does meet 
that standard, it is hard to imagine any constitutional 
limits on “no-impeachment” rules.

The promise and protection of jury impartiality, as 
codified in the Sixth Amendment, has even greater 
constitutional significance in light of the Equal 
Protection Clause of the Fourteenth Amendment. 
Because “[eradication of the evil of state supported 
racial prejudice is at the heart of the Fourteenth 
Amendment,” the “constitutional interests of the 
affected party are at their strongest when a jury 
employs racial bias. . . .” 27 Charles A. Wright and 
Victor J. Gold, Fed. Prac. & Proc.: Evid. § 6074 (2d ed. 
2016) (footnotes omitted). Indeed, the Reconstruction 
Amendments took specific aim at both racial exclusion 
in jury selection and racial prejudice in jury 
deliberations:

A principal gain under that [Reconstruction] 
program, implicit in the Fourteenth Amendment 
and made explicit under the 1875 Civil Rights Act, 
was the right to a fair jury trial. . . . The 
Fourteenth Amendment and the 1875 follow-up 
legislation had pounded the point [of the Sixth 
Amendment] home. Their purpose in this 
connection was quite obviously to integrate



13
Negroes into the jury system in order to assure 
the black man of an impartial trial and thereby 
counteract a presumed hostility of white jurors 
toward black defendants. . . .

Richard Kluger, Simple Justice 62-64 (Vintage Books, 
1977 ed.).10

Thus, the Colorado Supreme Court committed a 
serious error in refusing to consider the extreme and 
explicit evidence that racial prejudice played a role in 
the jury deliberations in this case. In doing so, it 
ignored this Court’s instructions about the special 
salience of racial bias in the jury system and the 
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. 
The Colorado Supreme Court failed to acknowledge 
this Court’s denunciation of how “racial animus” 
intolerably “distort[s] our system of criminal justice” 
McCollum, 505 U.S. at 58, and subverts the 
foundational purposes of the constitutional right to a 
jury trial, see id. at 49-51. In fact, only the dissent 
below noted that “ [rjacial bias differs from other forms 
of bias in that it compromises institutional 
legitimacy.” Pet. App. 25a. Instead, the decision below 
erroneously suggests that the Sixth Amendment has 
little, if any, import or impact on a case where explicit

10 Even the adversaries of the Fourteenth Amendment 
understood that it would apply specifically to racial 
discrimination in jury participation, Kluger, supra, at 426 
(chronicling the opposition of Delaware), and thereby bolster 
Sixth Amendment rights, see generally Amicus Br. of 
Constitutional Accountability Center (discussing how the 
Framers of the Reconstruction Amendments viewed eliminating 
racial bias from jury deliberations as critical to vindicating the 
protections of both the Sixth and Fourteenth Amendments).



14
racial prejudice has tainted a jury verdict.11 Such a 
position should not be tolerated by this Court.

B. Policy Concerns Underlying No- 
Impeachment Rules Cannot Override 
Constitutional Rights.

The Colorado Supreme Court’s plain error in 
equating the constitutional right to a fair trial with an 
evidentiary rule invites this Court’s reversal. 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); Pet. App. 18a (Marquez, J., dissenting) (“ [T]he 
majority elevates general policy interests . .. [over the] 
fundamental constitutional right to a fair trial.”). It is 
axiomatic that the United States Constitution is the 
supreme law of the land and has precedence over state 
rules of evidence, which cannot be accorded the same 
legal weight as constitutional mandates. See U.S. 
Const. Art. VI (Supremacy Clause); see also 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.’”); 1 Edward J. Imwinkelreid & 
Paul C. Giannelli, Courtroom Criminal Evidence § 4 
(Lexis Nexis, 5th ed. 2015) (“The first source of state 
law evidence [in the hierarchy] is the federal 
Constitution. . . .  A fourth source is the state’s statutes 
[including rules of evidence].”).

11 It would be strange and troubling if other forms of 
misconduct provide grounds to revisit verdicts in criminal cases— 
but not racial prejudice. For example, the Tenth Circuit held that 
a verdict cannot stand when a stenographer emphasized parts of 
the jury instructions while reading them to the jury in the jury 
room. Little v. United States, 73 F.2d 861, 867 (10th Cir. 1934).



15
Thus, “ [i]f the exercise of an evidentiary rule . . . 

impinges upon a criminal defendant’s constitutional 
rights, . . . the evidence rule . . . must give way to the 
defendant’s right to a fair trial . . . 3 Barbara E.
Bergman et al., Wharton’s Criminal Evidence § 11:6 
(15th ed. 1999). See also Imwinkelreid & Giannelli, 
supra, § 6 (in the event of “a conflict between a 
provision of the federal Constitution and a state 
statute . . . .  the Constitution prevails under the 
supremacy clause.”); Wright & Gold, supra, § 6074 
(“Evidentiary rules that insulate from discovery the 
violation of constitutional rights may themselves 
violate those rights.”); 2 Federal Evidence § 5:10 (4th 
ed. 2016) (“Significant authority holds that [the] 
constitutional right [to present evidence] 
. . . occasionally overrides rules of exclusion.”).

Legitimate policy concerns that animate “no­
impeachment” rules are insufficient to displace the 
primacy of constitutional protections. The majority 
below reasoned that “‘[protecting the secrecy of jury 
deliberations’” invariably trumps “a defendant’s 
opportunity to vindicate his fundamental 
constitutional right to an impartial jury untainted by 
the influence of racial bias.” Pet. App. 27a (Marquez, 
J., dissenting). That holding is clearly wrong.

Courts should not apply “no-impeachment” rules 
“mechanistically to defeat the ends of justice.” 
Chambers v. Mississippi, 410 U.S. 284, 302 (1973). 
With respect to the Sixth Amendment right to a fair 
trial by an unbiased jury in particular, this case 
demonstrates that “it would not be safe to lay down 
any inflexible rule” in the name of secrecy or finality, 
“because there might be instances in which [a juror’s 
testimony] could not be excluded without violating the 
plainest principles of justice.” McDonald v. Pless, 238 
U.S. 264, 268-69 (1915) (quoting United States v. Reid,



53 U.S. (12 How.) 361, 366 (1851)) (internal quotations 
omitted).12

[Bjlanket rules either excluding all juror 
testimony of bias or admitting all such testimony 
are inappropriate. A balance must be struck, 
protecting parties from the most egregious cases 
of jury bias while leaving the jury free to decide 
most cases without fear of judicial intrusion. 
While lines may be difficult to draw in many 
cases, it should be clear that among the most 
serious cases of jury bias are those involving 
racial prejudice.

Wright & Gold, supra, § 6074 (footnotes omitted); see 
also Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 
1995) (Jones, J., concurring) (quoting Wright & Gold), 
cert, denied, 516 U.S. 992 (1995). It would be 
particularly inappropriate to have a rule that bars the 
admissibility of evidence of racial bias because the 
underlying misconduct, if established, potentially 
constitutes a structural defect. The need for a 
complete inquiry into juror impartiality thus is 
heightened in cases involving racial bias. Conversely,

16

12 In other analogous contexts, members of this Court have 
recognized the desirability of having a post-conviction hearing “to 
determine whether a juror is biased.” Smith v. Phillips, 455 U.S. 
209, 221-22 (1940) (O’Connor, J., concurring). Blackstone went 
even further, stating that “[clauses of suspending the judgment 
by granting a new trial” included both extra-record influences and 
“any gross misbehaviour of the jury among themselves . . . . ” 3 
Blackstone, supra, at *387 (emphasis added). Moreover, LDF has 
long maintained that, in some instances, racial prejudice will—in 
light of its substance and context—be egregious enough to raise a 
presumption of bias. See e.g., 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 at *7 (Apr. 22, 2005).



17
the policy of promoting the finality of judgments is 
gravely undermined when the court is precluded from 
considering evidence tending to show that the 
underlying judgment may be void.

The Colorado Supreme Court’s policy justifications 
for tolerating the extreme racial prejudice in this case 
are deeply flawed.

First, concerns about attorneys engaging in fishing 
expeditions cannot alone support an unbounded 
application of Rule 606(b), because jurors can and do 
volunteer information about racial bias in 
deliberations, as demonstrated by the case at hand. 27 
Wright & Gold, supra § 6072; 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 “permit]] good faith 
attempts to discover evidence relating to an ‘outside 
influence’”). Recognizing “an 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.” Racist Juror 
Misconduct During Deliberations, 101 Harv. L. Rev. 
1595, 1599 (1988).

The Colorado Supreme Court’s other concerns about 
the harassment of jurors are also misplaced, since 
judges have many tools to control the conduct of 
lawyers and protect the jury from unwanted contact. 
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



18
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).

Second, while maintaining the secrecy of jury 
deliberations is certainly an important consideration, 
our judicial system rests ultimately on the fairness 
and impartiality of the process. “[T]he right to an 
impartial jury under the Sixth and Fourteenth 
Amendments,” Gray v. Mississippi, 481 U.S. 648, 658 
(1987), “goes to the very integrity of the legal system” 
id. at 668. Thus, it would be improper to blunt an 
explicit constitutional right because of a policy 
consideration that is implicitly rooted in common law 
rather than a competing—and overriding—
constitutional mandate.

Third, the Colorado Supreme Court’s decision seems 
to rest on the erroneous presumption that Sixth and 
Fourteenth Amendment rights no longer apply after 
the issuance of a jury verdict. Pet. App. 27a (Marquez, 
J., dissenting) (disagreeing with the majority’s 
categorical suggestion that secrecy “must trump a 
defendant’s opportunity to vindicate his fundamental 
constitutional right”). But claims under Sixth and 
Fourteenth Amendments are regularly litigated well 
beyond the exhaustion of direct appeals through post­
conviction under the Anti-Terrorism and Effective 
Death Penalty Act. See, e.g., Foster, 136 S. Ct. 1737 
(Fourteenth Amendment claim brought thirty years 
after verdict); Berghuis v. Smith, 559 U.S. 314 (2010) 
(certiorari granted regarding Sixth Amendment claim 
ten years after verdict); see also Duren v. Missouri, 439 
U.S. 357 (1979) (overturning conviction based on Sixth



Amendment claim two years after Missouri Supreme 
Court upheld verdict).

Fourth, the Colorado Supreme Court erroneously 
assumed that a policy of relying upon voir dire alone 
could root out racial bias injury deliberations, see Pet. 
Br. 24-27, because jurors are unlikely to publicly admit 
to their own racial prejudices, Pet. 23-24, and jurors’ 
unconscious biases may later manifest as explicit 
biases during deliberations.13 See also Pet. Br. 21 
(“None of the Tanner safeguards adequately protects 
defendants when a juror infects deliberations with 
racially biased assertions.”).

On balance, courts are readily equipped to deal with 
extreme and extraordinary instances of juror bias, as 
in this case, and should not ignore an accused’s 
constitutional right to an impartial jury due to 
nebulous policy concerns. See Pet. Br. 29-31, 38; 
(listing twenty jurisdictions that already allow courts 
to consider juror testimony that racial bias infected 
deliberations); see generally Amicus Br. of Retired 
Judges. Likewise, judges are certainly capable of 
addressing jury secrecy concerns by focusing any 
inquiries into jury misconduct on the prejudicial 
misconduct at hand.

19

13 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).



20
II. EXCLUDING EXPLICIT EVIDENCE OF 

RACIAL DISCRIMINATION IN JURIES 
WOULD SERIOUSLY UNDERMINE 
PUBLIC CONFIDENCE IN THE 
CRIMINAL JUSTICE SYSTEM.

The jury exists, in part, to instill public confidence in 
our legal system. Almost two centuries ago, Alexis de 
Tocqueville observed that the jury “imbues all classes 
with a respect for the thing judged, and with the notion 
of right.” Tocqueville, supra, at 112. This Court, too, 
has long recognized that “[t]he purpose of the jury 
system is to impress upon the criminal defendant and 
the community as a whole that a verdict of conviction 
or acquittal is given in accordance with the law by 
persons who are fair.” Powers, 499 U.S. at 413. 
Respect for the verdicts of our courts is, in part, 
responsible for ensuring the “continued acceptance of 
the laws by all of the people.” Id.; see also Edmonson, 
500 U.S. at 624 (“[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.”) (quoting Powers, 499 U.S. 
at 407) (internal quotation marks omitted); Williams
v. Pennsylvania, 579 U.S. __, No. 15-5040, 2016 WL
3189529 (U.S. June 9, 2016). That public confidence is 
undermined by jury verdicts tainted by the type of 
explicit racial prejudice evidenced in this case.

Moreover, this Court has emphasized that “[t]he 
need for public confidence is especially high in cases 
involving race related crimes,” where, as in the case at 
hand, “emotions in the affected community will 
inevitably be heated and volatile.” McCollum, 505 
U.S. at 49. The heightened concern about public 
confidence in racially charged cases stems from the 
troubling history of all-white juries and anti-Black 
persecution, supra Part I.A. It also reflects this



21
Court’s special solicitude for combating racial bias in 
the administration of justice, supra Part I.

A. Racial Prejudice in the Jury System 
Damages Individual Proceedings, 
Community Perceptions, and 
Democratic Principles.

The damage caused by racial bias in the jury system 
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.” Ballard v. 
United States, 329 U.S 187, 195 (1946). Each of these 
harms supports reversal of the decision below.

First, racial prejudice within the jury system 
“create [s] the appearance of bias in the decision of 
individual cases, and . . . increase[s] the risk of actual 
bias as well.” Peters v. Kiff, 407 U.S. 493, 503 (1972). 
See also Powers, 499 U.S. at 411 (“[Rjacial 
discrimination in the selection of jurors . . . places the 
fairness of a criminal proceeding in doubt.”); 
Edmonson, 500 U.S. at 628 (same).

Second, the harm caused by racial bias in the jury 
system “extends beyond that inflicted on the defendant 
and the excluded juror to touch the entire community.” 
Batson, 476 U.S. at 87. See also J.E.B., 511 U.S. at 140 
(“The community is harmed by the State’s 
participation in the perpetuation of invidious group 
stereotypes.”); Rose, 443 U.S. at 556 (“The harm is not 
only to the accused . . . .  It is [also] to society as a 
whole.”); McCollum, 505 U.S. at 49-51 (arguing that 
bias in the jury system “undermine[s] the very 
foundation of our system of justice—our citizens’ 
confidence in it.”). The extent to which justice is 
achieved in a particular case or for a particular class 
(e.g., people of color charged with crimes) directly



22
shapes how the community perceives the criminal 
justice system. See, e.g., 511 U.S. at 140
(claiming that unredressed juror prejudice “invites 
cynicism respecting the jury’s neutrality and its 
obligation to adhere to the law”); Rose, 443 U.S. at 555- 
556 (“Discrimination on the basis of race . . . casts 
doubt on the integrity of the judicial process [and] 
impairs the confidence of the public in the 
administration of justice.”).

Third, a jury verdict tainted by racial prejudice “not 
only violates our constitution and the laws enacted 
under it but is [also] at war with our basic concepts of 
a democratic society and a representative 
government.” Rose, 443 U.S. at 564 (quoting Smith v. 
Texas, 311 U.S. 128, 130 (1940)). See also Ballard, 329 
U.S. at 195 (recounting injury “to the democratic ideal 
reflected in the processes of our courts”). As Justice 
Thurgood Marshall explained:

[institutions [of criminal justice] serve to 
exemplify, by the manner in which they operate, 
our fundamental notions of fairness and our 
central faith in democratic norms. They reflect 
what we demand of ourselves as a Nation 
committed to fairness and equality in the 
enforcement of the law. That is why 
discrimination “is especially pernicious in the 
administration of justice,” why its effects 
constitute an injury “to the law as an institution,” 
why its presence must be eradicated root and 
branch by the most effective means available.

Hobby v. United States, 468 U.S. 339, 352 (1984) 
(Marshall, J., dissenting) (citations omitted).



23
B. A Court’s Refusal to Consider Whether 

a Verdict is Tainted by Racial Prejudice 
Erodes Public Confidence.

The decision below failed to address the distinct 
ways in which racial prejudice in jury deliberations 
undermines public confidence in the criminal justice 
system. The majority below instead focused solely on 
the “potential” that investigation into claims of racial 
bias in juries “would shatter public confidence in the 
fundamental notion of trial by jury.” Pet. App. 13a.

But disregarding evidence of overt racial or ethnic 
bias has “precisely the opposite effect.” Pet. App. 18a 
(Marquez, J., dissenting). The majority below “ignores 
the demoralizing effect on public confidence caused by 
reports that jurors are racist, but [that] evidence of 
their racism is not admissible to overturn their 
verdicts.” Racist Juror Misconduct During 
Deliberations, 101 Harv. L. Rev. at 1600 (footnote 
omitted).14 This Court rejected a similar argument in 
Aldridge u. United States, where it was asserted “that 
it would be detrimental to the administration of the 
law . . .  to allow questions to jurors as to racial or 
religious prejudices.” 283 U.S. 308, 314-15 (1931). 
There, the Court explained 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, and 
that there would be “[n]o surer way . . .  to bring the 
processes of justice into disrepute,” id., than to

14 Moreover, in other contexts, this Court has recognized the 
“principle that justice cannot survive behind walls of silence 
[that] has long been reflected in the ‘Anglo-American distrust for 
secret trials.’” Sheppard v. Maxwell, 384 U.S. 333, 349-50 (1966).



24
insulate racial bias from judicial scrutiny or redress. 
The same conclusion is dictated here.

Without appropriate redress, the racial stereotypes 
and smears that infected the jury verdict in this case 
not only render Mr. Pena-Rodriguez’s case 
fundamentally unfair, they also significantly impair 
public confidence in our system of justice. Less than 
45 percent of all Americans believe that racial groups 
are treated equally in the criminal justice system. 
Those numbers plummet further among racial 
minorities, into the low teens for African Americans,15 
and have remained stagnant for over two decades.16

15 See, e.g., CNN/ORC Poll of December 22, 2014 at 6, 
http://i2.cdn.turner.com/cnn/2014/images/12/22/cnn.poll. 
12.22.pdf (only 41 percent of the American population thinks that 
the criminal justice system treats all groups equally; 50 percent 
of whites and 21 percent of non-whites); Reason-Rupe Public 
Opinion Survey, October 2014 National Telephone Survey, 
Reason-Rupe, http://reason.com/assets/db/1412808480505.xlsx 
(Oct. 9, 2014) (45 percent of the American population thinks that 
the criminal justice system treats all groups equally; 14 percent 
of African-Americans, 32 percent of Hispanics, and 53 percent of 
white respondents); Robert P. Jones, Daniel Cox & Juhem 
Navarro-Rivera, Economic Insecurity, Rising Inequality, and 
Doubts about the Future: Findings from the 2014 American 
Values Survey, 38 (Pub. Religion Research Inst. Sept. 23, 2014), 
http://publicreligion.org/site/wp-content/uploads/2014/ll/PRRI- 
AVS-with-Transparancy-Edits.pdf (44 percent of all Americans 
think that blacks and other minorities receive equal treatment as 
whites in the criminal justice system; 16 percent of African- 
Americans, 40 percent of Hispanics, and 49 percent of white 
respondents).

16 Compare George Gallup, Jr., The Gallup Poll: Public Opinion 
51 (1996) (68 percent of African-American respondents felt that 
the American justice system was biased against African- 
Americans), with King’s Dream Remains an Elusive Goal; Many 
Americans See Racial Disparities 12, Pew Research Ctr. (Aug. 22,

http://i2.cdn.turner.com/cnn/2014/images/12/22/cnn.poll
http://reason.com/assets/db/1412808480505.xlsx
http://publicreligion.org/site/wp-content/uploads/2014/ll/PRRI-AVS-with-Transparancy-Edits.pdf
http://publicreligion.org/site/wp-content/uploads/2014/ll/PRRI-AVS-with-Transparancy-Edits.pdf


25
This perception of racial unfairness in the 
administration of criminal justice is reinforced by 
cases of explicit racial epithets and stereotypes being 
used to justify convictions and sentences.17

A decision from this Court affirming the decision 
below would send an ominous signal that the 
American judiciary is, at best, indifferent to racial bias 
in jury verdicts. At worst, this Court would be seen as 
condoning the juror’s abhorrent statements and 
blessing a “guilty” verdict it knows to be tainted. Mere 
disapproval of the juror’s statements is not enough; 
this Court must affirm that the judiciary will take 
corrective action to ensure that verdicts are rendered 
based on facts, not racial biases.

2013), http://www.pewsocialtrends.org/2013/08/22/kings-dream-
remains-an-elusive-goal-many-americans-see-racial-disparities/
(same).

17 See also, e.g., Kittle v. United States, 65 A.3d 1144, 1147-48 
(D.C. 2013) (“[A] 11 ‘blacks’ are guilty regardless.”); United States 
v. Shalhout, 507 F. App’x 201, 203 (3d Cir. 2012) (“[T]he 
defendants [were] guilty because they were of Arabic descent.”); 
United States v. Villar, 586 F.3d 76, 81, 85-87 (1st Cir. 2009) (“I 
guess we’re profiling but they [Hispanics] cause all the trouble.”); 
United States v. Benally, 546 F.3d 1230, 1231 (10th Cir. 2008) 
(“’[W]hen Indians get alcohol, they all get drunk,’ and . . . when 
they get drunk, they get violent.”); United States u. Henley, 238 
F.3d 1111, 1113 (9th Cir. 2001) (“All the niggers should hang.”); 
Shillcutt v. Gagnon, 827 F.2d 1155, 1156 (7th Cir. 1987) (“Let’s 
be logical. He’s black and he sees a seventeen year old white girl 
- 1 know the type.”); United States v. Heller, 785 F.2d 1524, 1526 
(11th Cir. 1986) (juror “admitted making an anti-Semitic ‘slur’” 
and jokes during trial of Jewish defendant). See also Smith v. 
Brewer, 444 F. Supp. 482, 485 (S.D. Iowa 1978) (juror strutted 
around the jury room imitating a black minstrel), aff’d, 577 F.2d 
466 (8th Cir.), cert, denied, 439 U.S. 967 (1978); Commonwealth 
v. Laguer, 571 N.E.2d 371, 375 (Mass. 1991) (stating, in an 
aggravated rape trial, that “spies screw all day and night”).

http://www.pewsocialtrends.org/2013/08/22/kings-dream-


26
This Court has expressed particular concern for the 

public’s “impression that the judicial system has 
acquiesced” to certain forms of discrimination “or that 
the ‘deck has been stacked’ in favor of one side.” 

511 U.S. at 140. Furthermore, this Court has 
recognized that allowing “ [ajctive discrimination” 
involving juries “condones violation of the United 
States Constitution within the very institution 
entrusted with its enforcement, and so invites 
cynicism respecting the jury’s neutrality and its 
obligation to adhere to the law.” Powers, 499 U.S. at 
412. This troubling result is further enhanced when 
the discrimination at issue, as in this case, takes place 
in the official forum of a court. See, e.g., McCollum, 
505 U.S. at 53 (“[T]he courtroom setting . . . intensifies 
the harmful effects of the . . . discriminatory act.”); 
Edmonson, 500 U.S. at 628 (“ [T]he injury caused by 
the discrimination is made more severe because the 
government permits it to occur within the courthouse 
itself.”). This sort of “[rjacial prejudice . . .  converts the 
jury itself [from a safeguard] into an instrument of 
oppression.” Wright & Gold, supra, § 6074.

CONCLUSION
For over a century, this Court has strived to combat 

racial discrimination in the jury system. Relying on 
these precedents, the nation has made significant 
steps towards the constitutional goal of equality for all. 
Although more work remains to be done, this Court’s 
commitment to racial fairness in criminal justice 
promotes trust in the rule of law, particularly for the 
communities of color that amici serve.

Unbridled racial prejudice, like that which infected 
the jury in Mr. Pena-Rodriguez’s case, fundamentally 
undermines the integrity of our justice system and 
cannot be tolerated by our Constitution. “If our society



27
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.” Edmonson, 500 U.S. at 
630-31. Neither precedent nor prudence support 
Colorado’s strained stance to the contrary. This Court 
should not condone that position, and it should 
reverse.

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

John Paul Schnapper- 
Casteras *

NAACP Legal Defense & 
Educational Fund, Inc. 

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

mailto:jschnapper@naacpldf.org


28

R. Reeves Anderson 
Holly E. Sterrett 
Arnold & Porter LLP 
370 Seventeenth Street 
Suite 4400 
Denver, CO 80202 
Counsel for the National 

Association of Criminal 
Defense Lawyers

June 30, 2016

Barbara Bergman 
Co-Chair, Amicus 
Committee

National Association of 
Criminal Defense 
Lawyers

1117 Stanford, N.E. 
Albuquerque, NM 87106

Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 *

* Counsel of Record