It's only the second week of oral argument at the U.S. Supreme Court and already the justices are on their third case involving race and the criminal justice system.
Tuesday's case tests the constitutionality of widespread rules that bar courts from examining evidence of racial bias in jury deliberations.
The federal rules of evidence, as well as rules in most states, generally bar courts from hearing juror testimony about deliberations after a trial is over. Indeed, the Supreme Court just two years ago ruled that to allow an inquiry into jury deliberations would threaten the integrity of the jury system by inhibiting jurors' discussions.
In that 2014 decision, however, the Court specifically said there "may be some cases of juror bias so extreme" that, by definition, the right to a fair trial "has been abridged."
If and when such a case arises, the Court said, it would decide whether an exception is warranted.
That day has now come in the case of Miguel Peña-Rodriguez.
Peña-Rodriguez was a horse trainer at a racetrack in Colorado in 2007, when he was arrested after two teenage sisters, the daughters of a jockey, identified him as the man who groped them in a restroom at the barn.
According to the girls' testimony, a man entered the bathroom, asked them if they wanted to party, and when they said "no" and tried to leave, he turned off the light, grabbed them, touched one of them on the breast, and the other on the shoulder and buttocks. The girls ran away, told their father what happened, and he identified Peña-Rodriguez from that description.
Later that night, police pulled Peña-Rodriguez over on the roadside, then brought the girls to the site, where they identified him, through a police cruiser window, as their assailant. Peña-Rodriguez was charged with one felony count of attempted sexual assault and three misdemeanors.
At trial, the prosecution's case rested on the victims' identification. The defense highlighted the short time the victims actually saw their attacker, the suggestibility of the night-time show-up, and the presence of other workers in the area at the time of the attack. It also presented an alibi witness, who testified that Peña-Rodriguez was with him in one of the other barns when the attack occurred. The alibi witness, like Peña-Rodriguez, was Hispanic.
The jurors initially deadlocked, unable to reach a verdict. The judge told them it was their duty to try again.
After twelve hours of deliberation in all, and much shouting that could be heard outside the jury room, the jury found the defendant guilty on the three misdemeanor charges, but failed to reach agreement on the felony. The state subsequently dismissed the more serious charge.
Peña-Rodriguez was sentenced to two years probation, and required to register as a sex offender. He still trains horses at the barn.
But on the day of the verdict, while he went home, the defense lawyers, following the usual practice in Colorado and elsewhere, remained in the courthouse to speak with any willing jurors. Two jurors told them that during the deliberations one of the other jurors, identified in court records as H.C., had repeatedly expressed a bias against the defendant — and his alibi witness — because they are Hispanic.
With the trial judge's permission, the lawyers then obtained affidavits from the jurors, in which the jurors quoted H.C. as saying that, from his experience as an ex-policeman, he knew that the defendant was guilty "because he's Mexican" and "Mexican men ... think they can 'do whatever they want' with women," and that where he used to patrol, "nine times out of ten Mexican men were guilty of being aggressive toward women and young girls."
The affidavits also quoted H.C. as saying that the alibi witness was not credible because, among other things, he was "an illegal."
In fact, the witness had testified at trial that he was a legal resident of the United States.
After receiving the affidavits, the trial judge ruled that there could be no questioning of jurors to see if a new trial would be justified because the Colorado has a rule barring inquiry into whatever happens in the jury room.
The Colorado Supreme Court, by a 4-3 vote, agreed.
Peña-Rodriguez appealed to the U.S. Supreme Court, where his lawyer will argue that in cases of alleged racial bias, if the trial judge cannot question jurors about their deliberations, the defendant is deprived of his constitutional right to a trial by a fair and impartial jury. Allowing an inquiry about racial bias is just as important, the defense will argue, as allowing an inquiry into jury tampering or whether outside information was brought into jury deliberations.
The state will argue that protecting the secrecy of jury deliberations ensures full and frank juror discussions, and protects public confidence in the jury system.
The defense will counter that more than 20 jurisdictions, from California to South Carolina, allow post-trial inquiry into racial bias on juries, and that such inquiries have existed in some states for decades without undermining the jury system.
The Supreme Court, now, will consider these arguments.