Monday, May 20, 2013
Black & White: D.C. Court of Appeals Finds Trial Courts Have Discretion to Consider Evidence of Juror Racial Bias
Federal Rule of Evidence 606(b) states:
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
D.C. does not have codified rules of evidence, but it applies a common law rule that is very similar to Federal Rule of Evidence 606(b), and, in Kittle v. United States, 2013 WL 2102150 (D.C. 2013), the D.C. Court of Appeals addressed a question of first impression previously addressed by many federal courts: What happens when there are post-verdict allegations of racial bias by jurors?In Kittle, Gregory Kittle, an African-American man, was convicted of one count of assault and two counts of felony threats. The same day that the judge discharged the jury, an African-American juror sent a letter to the judge that stated, inter alia,
I strongly feel that this case should not have taken as long as it did with the deliberations but some of us were faced with dealing with some jurors feeling that all "blacks" are guilty regardless. With feelings like those, I don't think people like that should be allowed to serve on jury duty. I would seriously hope that our society is way above entertaining that thought.
The court provided copies of this letter to both counsel during a status hearing a few weeks later and admonished them not to conduct an independent investigation.
In response to the letter, appellant filed a motion for the trial court to grant a mistrial, or in the alternative, allow an investigation and hold an evidentiary hearing in response to Juror 237's allegation that several fellow jurors felt that "all 'blacks' are guilty regardless." The judge denied both requests on the record, emphasizing that as established by Sellars v. United States, 401 A.2d 974 (D.C.1979), post-verdict challenges by jurors are generally not permitted. Implicitly recognizing that she had discretion to investigate the juror's allegation if necessary, the trial judge observed that "I make my ruling in this regard in part analyzing the very letter itself on its face, which prompts me to find no need to further interview or question Juror 237 or any other juror. There is nothing in this letter which actually impugns the verdict itself." In particular, the judge found that the letter did not indicate that the juror harbored any doubts about the verdict itself, nor did the letter urge the court to reconsider the verdict. The trial judge also noted that after reviewing the notes sent to the court by jurors before they reached a verdict, she found no other comments that gave reason for concern. The trial judge further commented that during the lengthy voir dire used to select the jury, the parties struck all jurors who showed any signs of bias. Finally, the trial judge agreed with the government that the jury's decision to acquit appellant of some counts and its inability to reach a verdict on the most serious counts rebutted any inference that racial bias influenced the verdict. Appellant filed a timely appeal of his convictions.
In response to the letter, Kittle filed a motion for the trial court to grant a mistrial, or in the alternative, allow an investigation and hold an evidentiary hearing in response to Juror 237's allegation. "Implicitly recognizing that she had discretion to investigate the juror's allegation if necessary," the trial judge denied the motion, finding that nothing in the letter "prompts me to find no need to further interview or question Juror 237 or any other juror."
Kittle thereafter appealed, and the D.C. Court of Appeals relied primarly upon the First Circuit's opinion in United States v. Villar, 2009 WL 3738787 (1st Cir. 2009), in reaching a conclusion. As I previously noted on this blog, in Villar, the First Circuit found that, notwithstanding the language of Rule 606(b), a trial judge has discretion to hear allegations of juror racial bias. The D.C. Court of Appeals reached the same conclusion, finding
that trial judges have the discretion to consider juror testimony in certain "rare and exceptional circumstances" where claims of racial or ethnic bias amongst jurors implicate the defendant's right to trial by an impartial jury. Villar, supra, 586 F.3d at 88. We limit the exception to rare and exceptional cases because we remain cognizant of the policy considerations that justify the no-impeachment rule—such as promoting verdict finality, encouraging frank discussions in the jury room, and discouraging post-verdict harassment of jurors—and urge trial judges to exercise caution when determining that juror testimony should be admitted for the purpose of investigating allegations that jurors harbored racial or ethnic bias.
This still left the court with the question of whether the trial judge properly exercised his discretion by finding that Kittle was not a case in which there should be jury impeachment, and the appellate court found no error, concluding that
First and most importantly, the trial judge reasoned that, the verdict itself was nuanced; appellant was convicted of three counts, acquitted on three counts, and granted a mistrial on the remaining six counts, which were the most serious. If the verdict had been affected by racial bias, the trial court reasoned, it is arguably likely that appellant would have been convicted of all counts. Second, Juror 237's letter expressed frustration with delays in deliberations caused by her fellow jurors' racist sentiments, but did not call the verdict into question by suggesting that the verdict should be reconsidered. Third, during deliberations, the jury submitted thirteen notes to the judge—none of which indicated a concern with racial bias. Finally, when defense counsel and the prosecutor met with the jurors after the verdict to discuss the trial, none of the jurors mentioned to either counsel that racial prejudice affected the verdict.