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Univ. of South Carolina School of Law

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Wednesday, December 5, 2007

The Lone Ranger and Tonto Fistfight in Heaven: Utah Judge Reverses Verdict After Evidence of Juror Racial Bias

A judge of the United States District Court for the District of Utah has entered a landmark ruling in that court's application of Federal Rule of Evidence 606(b).  An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah.  The officer than followed Benally to his residence.  At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight.  Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged.

After the verdict was entered, however, a problem soon arose.  When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans.  According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves.  Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent."  According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk."  Cano also claimed that two other jurors talked about a need to send a message to the reservation.

Upon submission of an affidavit by Cano asserting these allegations, United States District Court Judge Dale Kimball vacated Benally's conviction and ordered a new trial because jurors had failed to answer honestly when asked about whether they had any preconceived notions about Native Americans.  The U.S. Attorney's Office is currently considering whether to appeal the court's decision.

Federal Rule of Evidence 606(b) states that jurors can't testify about their thought process in reaching a particular verdict, but they can testify about either whether extraneous prejudicial information was brought before any juror or whether there was any improper outside influence brought to bear on any juror. See, e.g., People v. Steele, 47 P.3d 225 (Cal. 2002).  Thus, Cano's affidavit would have been admissible if it stated that a newspaper article talking about inadmissible evidence in the case found its way into the jury deliberation room or if it stated that a relative of the officer or defendant threatened a juror. 

However, Cano's affidavit would have been inadmissible if it stated that jurors ignored jury instructions, considered evidence that was presented in the case but later stricken from the record, or, according to some courts, stated that jurors used racial slurs. See, e.g., United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998) (finding that juror's proffered testimony that other jurors used racial slurs against Native Americans during trial was inadmissible under Rule 606(b)).  Some courts, however, have expressed the viewpoint that precluding evidence of racial slurs used by jurors might violate the 14th Amendment. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995).

The United States District Court for the District of New Mexico addressed this issue in dicta last year in United States v. Foghorn, 2006 WL 4017477 (D.N.M. 2006), a case somewhat factually similar to the Benally case.  In Foghorn, a Native American man appealed a jury verdict finding him guilty of second degree murder and kidnapping based in part on a juror affidavit claiming that another juror made the remark, "those poor Indians and their alcohol." Id. at *28.  The District Court noted that there had been Tenth Circuit cases where courts declared mistrials when it was revealed during trial that a juror or juror made racial slurs. See id. at *29. 

The court then found, though, that no Tenth Circuit opinion had conclusively addressed the issue of whether "a court may consider post-verdict evidence of racial bias in harmony with rule 606(b)." Id.  The court additionally noted that courts in other jurisdictions were split over the issue. See id.  After all of this discussion, however, the District Court found that the juror's statement was "ambiguous  and subject to interpretation" and thus that it could not support reversal even if it were considered. Id. at 30.  The Benally case thus appears to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict.

-CM

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