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November 14, 2008
The Lone Ranger and Tonto Fistfight in Heaven, Take 3: Tenth Circuit Finds Evidence Of Racial Bias During Deliberations Inadmissible
I've written two previous posts (here and here) about Kerry Dean Benally, a Native American man who was convicted of assault on a federal officer. After Benally was convicted, however, juror Karen 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.
In what I characterized as a landmark ruling and the first of its kind by a court in the Tenth Circuit, the United States District Court for the District of Utah ordered a new trial because it found that Cano's allegations sufficiently established that "jurors had failed to answer honestly when asked about whether they had any preconceived notions about Native Americans."
My second post on the case indicated that a three judge panel of the Tenth Circuit heard the prosecution's appeal, and yesterday, the panel unfortunately reversed the district court's ruling in United States v. Benally, 2008 WL 4866618 (10th Cir. 2008). So, what was the court's reasoning?
Well, first, let's look at Federal Rule of Evidence 606(b), which states in relevant part that:
"Upon an inquiry into the validity of a verdict or indictment, 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 as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."
Now, Benally argued that the jurors' racist statements constituted extraneous prejudicial information and/or an outside improper influence, but the Tenth Circuit properly rejected those arguments. As the court noted, the exceptions in (1) and (2) cover external evidence (such as a newspaper article about a failed polygraph test finding its way to the jury) and external influences (such as the relative of a party threatening a juror); however, they do not cover "a juror who brings his own personal experiences to bear on the matter at hand."
Benally also claimed that the Tenth Circuit should imply an exception to Rule 606(b) for evidence touching on racial bias because, as the Ninth Circuit stated in dicta in United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001), such an exception would be "'consistent with the text of the rule, as well as with the broad goal of eliminating racial prejudice from the judicial system, to hold that evidence of racial bias is generally not subject to Rule 606(b)'s prohibitions against juror testimony." And, to the extent, that we are just focusing on the evidentiary issue and not its constitutional dimensions, I would also agree with the Tenth Circuit's rejection of this argument because "a court in a particular case is not the proper forum for making or enlarging exceptions to the rules of evidence."
So, why do I disagree with the Tenth Circuit? Well, let's start with the fact that, as noted above, the district court found that Cano's statements were admissible to prove that jurors lied on voir dire when they said that they had no preconceptions about Native Americans. Is such juror testimony proscribed by Federal Rule of Evidence 606(b)?
According to the Tenth Circuit, "[t]here is a split in the Circuits on this point;" however, the only case cited by the Tenth Circuit for the proposition that jury testimony is inadmissible when introduced for this purpose was the Third Circuit's opinion in Williams v. Price, 343 F.3d 223 (3rd Cir. 2003), written by now-Supreme Court Justice Samuel Alito. But Price actually didn't come to this conclusion. In Price, the defendant sought federal habeas relief, which Alito found that he could only deliver if the lower courts' decision to preclude him from introducing jury testimony to prove that jurors lied on voir dire was contrary to clearly established federal law. And because Alito found no such clearly established federal law, he could not afford the defendant relief (although, as will be noted later, he afforded the defendant relief on different grounds).
Thus, Price itself didn't reach the conclusion alleged by the Tenth Circuit, so what cases led to Justice Alito failing to find no clearly established federal law on the issue? My answer is that I have no idea. As I have indicated before on this blog, my next article addresses the very issues raised by Benally, and I have been researching the voir dire issue. And while a few state court cases such as the one leading to Williams v. Price have come to the opposite conclusion, my research has otherwise led me to agree with the conclusion of the Supreme Court of North Dakota that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b) also do not preclude evidence to show that a juror lied during voir dire." At the federal level, the Tenth Circuit would now be the one aberration.
So, why did the Tenth Circuit side with the position it attributed to the Third Circuit? Well, even though it found that Benally would not be using Cano's statements directly to inquire into the validity of the verdict, which is proscribed under Rule 606(b). the indirect purpose of using Cano's statements to prove that jurors lied on voir dire "was to support a motion to vacate the verdict, and for a new trial. That is a challenge to the validity of the verdict." The court then contrasted this situation with a contempt proceeding against a dishonest juror, in which the juror's statements during jury deliberations are admissible, notwithstanding Rule 606(b).
So, where does that leave things? Well, as I have noted before, the argument of my forthcoming article is that application of Rule 606(b) to allegations of racial/religious/other prejudice violates a criminal defendant's right to present a defense/Compulsory Process. And whether you take the broader perspective of basically all other courts or the narrower approach of the Tenth Circuit, it is clear that evidence of bias during jury deliberations is admissible in at least certain circumstances.
Significantly, the first Supreme Court case to apply the Compulsory Process Clause to a rule of evidence was Washington v. Texas, 388 U.S. 14 (1967). In that case, two Texas statutes prohibited a charged coparticipant in a crime from providing exculpatory testimony on the behalf of another coparticipant. The Supreme Court first found that these statutes violated the defendant's rights under the Compulsory Process Clause because they "prevent[ed] whole categories of defense witnesses from testifying...." Obviously, this has some resonance with Rule 606(b), which prevents a whole category of defense witnesses -- jurors -- from impeaching their verdicts through evidence of anything internal to the jury deliberation process.
As I will note in my article, however, this analogy is not perfect, but it is made more perfect by the second part of the Court's ruling, which was that "[t]he rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons...." Instead, Texas allowed acquitted coparticpants to testify on behalf of other coparticipants and allowed charged or convicted coparticipants to provide testimony for the state that incriminated other coparticipants. It seems to me that court decisions allowing jurors to disclose biased statements to prove that a juror lied during voir dire to establish contempt and, according to most courts, to achieve a new trial, means that courts can't rationally draw a line and prevent those statements from being used directly to challenge the validity of a verdict.
And, why is such a Compulsory Process Clause/right to present a defense challenge so important? Benally also argued that application of Rule 606(b) to allegations of racial bias violated his Sixth Amendment right to an impartial jury. The roadblock faced Benally on this argument was that the Supreme Court found in Tanner v. United States that application of Rule 606(b) to allegations of, inter alia, juror alcohol and drug use during trial did not violate the defendant's Sixth Amendment right to a competent jury. And while Benally argued that application of Rule 606(b) to allegations of racial bias violated his Sixth Amendment right to an impartial jury, and involved "a more serious and fundamental danger to the justice system than intoxicated jurors, the Tenth Circuit rejected the argument, and I think that many courts would do the same based on Tanner (even though I disagree).
So, why might the Compulsory Process Clause compel a different result? Well, like many courts rendering similar decisions, but without allegations of jurors lying on voir dire, the Tenth Circuit applied Rule 606(b) despite finding that "[i]t may well be true that racial prejudice is an especially odious, and especially common form of Sixth Amendment violation." As I said before, if we are looking strictly at the evidentiary issue and not its constitutional dimensions, the Tenth Circuit acted properly in strictly and technically applying the language of Rule 606(b) to preclude jury impeachment through evidence of racial bias. But, with all of these courts recognizing the elephant in the room, doesn't this seem to be a situation where courts are applying a rule of evidence "mechanistically to defeat the ends of justice," which the Court found unconstitutional in Chambers v. Mississippi, 410 U.S. 284 (1973)?
Now, when I presented my Compulsory Process Clause/right to present a defense argument at my school, my colleague Tim O'Neill asked whether a court would accept the argument because the classic Compulsory Process Clause/right to present case relates to evidence of the crime itself, not evidence of juror misconduct. This is true, but it looks to me like Williams v. Price provides the answer.
In that case, while Justice Alito awarded no federal habeas relief to the defendant based upon the lower courts' exclusion of evidence of racial bias exhibited during jury deliberations, he awarded him relief based upon the lower courts' exclusion of evidence that:
"Subsequent to the proceedings in this case...[an acquiantance of the defendant] ran into Juror Number Two (2) in the lobby of the Courthouse....Upon seeing me he stated 'All niggers do is cause trouble' I am not sure whether this was stated directly to me but it was stated for my benefit and loudly enough for me to hear and to get a rise out of me. During our confrontation he also stated 'I should go back where I came from.'"
The basis for awarding this relief was the Compulsory Process Clause/right to present a defense. And Alito did so despite finding that "[n]one of these cases [such as Washington v. Texas and Chambers v. Mississippi] clearly establishes just how far a jurisdiction may go in excluding evidence of juror misconduct." Thus, courts should be able to apply the Compulsory Process Clause/right to present a defense to cases of jury misconduct, and I think that I can prove that they should apply them to allegations of racial/religious/other bias by jurors during deliberations.
November 14, 2008 | Permalink
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