Saturday, March 22, 2008
A Pennsylvania judge has denied a petition by Fabian Smart appealing his murder conviction in the beating death of a Lock Haven area man nine years ago. Smart was convicted of first degree murder in connection with the death of Jason McMann and sentenced to life imprisonment without the possibility of parole. Smart, however, recently brought a Post-Conviction Collateral Relief Act petition.
Smart, who is African-American, claimed, inter alia, that a jury member contacted him after the trial and told him that jury members used racial slurs which were brought up "early and often." The judge considering the petition, Judge J. Michael Williamson, noted that this issue was controlled by Pennsylvania Rule of Evidence 606(b), which indicates in relevant part that "[u]pon an inquiry into the validity of a verdict,...a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror."
Thus, a juror cannot testify after a verdict is rendered that, inter alia, jurors ignored jury instructions, misconstrued the elements of a crime, or considered testimony that was stricken from the record because these are internal to the jury deliberation process. After a verdict, however, a juror can testify that, inter alia, a friend of the defendant threatened him or that a newspaper article discussing inadmissible evidence found its way into the jury room because these are external to the jury deliberation process. Courts have found that racial slurs are internal to the jury deliberation process and thus inadmissible under Federal Rule of Evidence 606(b) and state counterparts, and this is what Judge Williamson did, concluding that "[a] juror may not testify as to any matter or statement occurring during the course of the jury's deliberations."
What complicates the issue, however, and what Judge Williamson apparently didn't address, is that some courts have expressed the viewpoint that, in spite of Rule 606(b), precluding evidence of racial slurs used by jurors might violate the Fourteenth Amendment. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995). On the other hand, other courts have held that racial slurs used by jurors are inadmissible under Rule 606(b) and not admissible based upon the Fourteenth Amendment. 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)).
In reviewing the Pennsylvania case law, I was unable to find any case applying the Fourteenth Amendment analysis to a Rule 606(b) case, but I did find an interesting jury bias case decided in the wake of 9/11. In Tabchi v. Duchodni, 56 Pa. D. & C.4th 238 (Pa.Com.Pl. 2002), an Arab husband and wife and their three children were involved in a car accident and brought a civil action against the other driver for their injuries. They thereafter moved for partial summary judgment on the issue of liability, and their motion was granted; the defendant was held solely responsible for the accident, leaving only the issue of damages to be tried before the jury. Id. at 239. At that trial, however, which began on September 24, 2001, "the jury returned a verdict in the amount of zero dollars as to each of the five plaintiffs, even though injuries to two of them were uncontroverted." Id.
After the jury rendered its verdict, one of the jurors approached plaintiffs' counsel and allegedly informed him of disparaging remarks concerning plaintiffs' Arabic heritage and culture made by other members of the jury during the course of their deliberations. Id. at 241. Several days later, the court received a letter from the jury foreperson which claimed that the ethnicity of the plaintiffs was openly discussed and apparently considered as a factor in the jury's deliberations. See id. The plaintiffs thereafter moved for a new trial, alleging, inter alia, that this prejudice made the jury's verdict fatally flawed. See id.
The court rejected this claim, finding that the "[p]laintiffs' contention that the jury was influence by anti-Arab bias and bigotry in the course of its deliberations is based solely upon the allegations of other jurors. However, such prejudice in the deliberative process, if it existed, and as odious and repugnant as it would be, is not and external or extraneous input that would override the sacrosanct nature of jury deliberations." Id. at 250 (emphasis added). In my mind, the Duchodni case clearly supports the proposition that the Fourteenth Amendment analysis should be applied to Rule 606(b) cases to ensure that cases are not decided based upon racial prejudice.