The case pits secrecy rules in jury deliberations against the Sixth Amendment's guarantee of a fair and impartial jury. The justices considered whether the so-called "no impeachment" rule -- meant to protect the secrecy of jury deliberations and the finality of jury verdicts -- should be pierced when the deliberations include racial bias.
As the lawyer for criminal defendant Miguel Angel Pena-Rodriguez began his argument seeking a new trial for his client, Chief Justice John Roberts and Justice Samuel Alito jumped in almost immediately. While both justices agreed the statements by the juror were clearly offensive -- they were troubled with where they could draw the line.
"What about religious bias?" asked Roberts. He suggested that if the court were to allow an exception to jury secrecy for race "the next case" was going to concern religion.
But Pena-Rodriguez's lawyer, Jeffrey Fisher, said that "race is different." It was a point several of the more liberal justices seemed to agree upon.
Justice Elena Kagan noted there was "screaming race bias" in the jury room.
"I always thought the most pernicious and odious discrimination in our law is based on race," Justice Sonia Sotomayor said.
Justice Stephen Breyer said, "We're trying to create a fairer system in general and one that will be perceived as such."
At a time when racial unrest has rocked the country, the Court has twice in two terms considered racial bias in the jury system. Last term a 7-1 court ruled in favor of a death row inmate in a case concerning racial discrimination in jury selection.
Pena-Rodriguez was charged with unlawful sexual contact and harassment after two girls testified that he groped them in a bathroom at a horse-racing track in Colorado. Their father, a track employee, called the police who caught up with Pena-Rodriguez later the same night. The girls positively identified him as their attacker and he was later convicted.
Consistent with the practice in the state, after the jury's dismissal, defense counsel remained to speak with the jurors. Two jurors privately explained that during deliberations another juror called "H.C" in court papers had expressed bias toward Pena-Rodriguez because he is Hispanic.
The jurors signed affidavits outlining H.C's remarks including the fact that he was an ex-law enforment officers who felt that "Mexican men had a bravado that caused them to believe they could do whatever they wanted with women."
The defense moved for a new trial, but the request was denied. Lower courts held that the state's "no impeachment rule" -- could not be breached.
Sotomayor noted that everybody "is afraid of opening the door" in the case and asked Fisher to explain why the racial testimony in the case should be considered.
Fisher called racial bias a "stain" on the entire judicial system and the "integrity that it's built upon."
In court papers he emphasized that "infecting the deliberative process with such racial bias violates the right to an impartial jury."
Roberts asked what would occur if the racial comments were "less direct" if, for example a juror referenced a bad neighborhood. Alito shared Roberts' concern of a limiting principle in other cases.
Frederick R. Yarger , the solicitor general of Colorado, agreed that H.C.'s statements were "reprehensible" but he argued that sixth amendment does not compel an exception to "no-impeachment rules" even if there is misconduct during deliberations.
He argued there are safeguards built into the system including -- voir dire -- the chance to probe potential jurors before trial of any bias.
The Obama administration supports Colorado in the case.
"Racial bias is a real problem," Assistant Solicitor General Rachel P. Kovner told the justices. "But there are ways to address that problem without undermining structural protections of the jury system that have withstood legal challenges for hundreds of year," she said.