02:10 - Source: CNN
How selecting a jury really works

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On Tuesday, the US Supreme Court will hear Pena Rodriguez v. Colorado, a case about two visions of what a jury should be

Dov Fox: While the first vision emphasizes objective decision-making, the other stresses jurors' subjectivity

Court should resolve the tension by recognizing not all biases are equal; some discredit a jury, others legitimize it, writes Fox

Editor’s Note: Dov Fox is associate professor of law and director of the Center for Health Law Policy & Bioethics at the University of San Diego School of Law. The views expressed in this commentary are his own.

CNN  — 

The upcoming Supreme Court term promises to be a sleeper. Still down a justice, the court isn’t slated to hear its usual blockbusters on the likes of abortion, affirmative-action or same-sex marriage. But its first day back in session does feature at least one intriguing controversy in the case of Peña Rodriguez v. Colorado.

At the heart of the case are two incompatible visions of what a jury is supposed to be. The first ideal emphasizes objective decision-making. It demands that jurors arrive at verdicts free of any influence beyond the testimony and evidence that’s presented in court. The second ideal stresses jurors’ subjectivity. It insists on a jury of peers that can speak as the voice of the community. How can jurors remain unbiased, however, while relying on the very experiences and perspectives that bias them?

Dov Fox

The case before the Supreme Court on Tuesday will force it to reconcile these two seemingly irreconcilable ideals of the jury. The court should resolve this tension by recognizing important differences among different forms of bias: There are some biases that discredit a jury’s verdict just as surely as others legitimize it. The challenge, of course, is distinguishing good bias from bad.

The objective ideal of the jury goes back to the treason trial of founding father and Vice President Aaron Burr at the turn of the 19th century. Amid widely publicized accusations that Burr sought to establish a new country in parts of Texas and surrounding territories, Chief Justice John Marshall insisted on jurors who would have no biases or “any prepossessions whatever.” Think of Lady Justice’s blindfold. A federal judge in California recently captured this ideal when he instructed jurors to “take all of the experiences that … have contributed to how you think about everything” and “lay those experiences aside” as what “we call … your biases.”

But those experiences are precisely what makes a jury of one’s peers representative. A Washington court captured this second, subjective ideal when it emphasized that a jury “is expected to bring its opinions, insights, common sense, and everyday life experience into deliberations.” Here, the blindfold of impartiality deprives jurors of the context that helps them appreciate what’s right for their own time and place in the world.

That’s why the Constitution requires drawing jurors from the community at large. It’s also why federal rules shield jury deliberations from public view, thereby preserving safe harbor for the messy process by which “any prepossessions” might inform a just verdict.

These rival ideals lie at the heart of Peña Rodriguez v. Colorado. A jury convicted Miguel Peña Rodriguez of assaulting two teenage girls and sentenced him as a sex offender. After the verdict, two jurors submitted affidavits stating that a third, H.C., made racist comments during deliberations. H.C. urged conviction, they reported, “because [Peña Rodriguez] is Mexican and Mexican men … believe they c[an] do whatever they want[] with women.” H.C. also argued that the alibi witness who placed Peña Rodriguez elsewhere couldn’t be believed because he was “an illegal.”

The Colorado Supreme Court held that these statements didn’t entitle Peña Rodriguez to a new trial. It framed the issue, like other courts have, as a tradeoff between, on the one hand, the finality of verdicts and avoiding potential juror harassment, and, on the other, the defendant’s constitutional right to a fair trial. But this misses a deeper question about what makes a trial fair in the first place. Is it an objective jury or a subjective one?

Each ideal has appeal. But both suffer from the same problem: They treat all forms of bias the same. In fact, some forms of bias are bad and should be purged from the jury, while others, even those related to race, are good and worth preserving. The US Supreme Court should accordingly draw a line that others like the Colorado Supreme Court have refused to: “between different types of juror bias …, whereby one form of partiality would implicate a party’s Sixth Amendment right [to an impartial jury] while another would not.”

Until now, the court has been unwilling to pull back the curtain of jury secrecy. In the 2014 case of Warger v. Shauers, Shauers’ truck hit Warger’s motorcycle. Warger lost his left leg in the crash and sued Shauers for negligence. During jury selection, a prospective juror who was later selected as foreperson told Warger’s lawyers that there was no reason she wouldn’t be able to award personal injury damages in the case.

After the jury ruled for Shauers, however, another juror disclosed that the foreperson had revealed during deliberations that her own daughter had been at fault in a fatal car crash and that, if she had been held liable, it would have “ruined her life.” Justice Sonia Sotomayor held for a unanimous court that the verdict couldn’t be appealed based on evidence that a juror lied during jury selection. She noted in a prescient footnote, however, that certain “cases of juror bias [may be] so extreme” that “the jury trial right has been abridged.”

The court will hear that case on Tuesday. As Sotomayor implicitly recognized, not all jury bias is cut from the same cloth. Self-serving conflicts of interest and secondhand rumors about the litigants tend to erode sound decision making. But familiarity with shared experiences and understanding of social norms aren’t always corrupting. Some can even enrich a verdict.

The juror who identifies with the young person accused of reckless driving or dealing drugs might be blinded by “resentment against the system that punished” that juror or her loved ones. But she also might bring a crucial perspective about unfamiliar social circumstances that should be heard in the jury’s deliberations.

More complex still are attitudes about the ideological causes or demographic affiliations that might lead jurors to sympathize with one party or the other. Consider death penalty cases. Some people have conscientious scruples against capital punishment or believe that defendants from disadvantaged groups in particular deserve mercy because the criminal justice system tends to treat them worse. Others favor the death penalty as a symbol of opposition to social deviance or a commitment to individual responsibility. Both these perspectives have an important role to play in jury deliberations.

Likewise, that a young black defendant from a poor neighborhood fled from the police, for instance, might be regarded by a juror from an affluent background as evidence of the defendant’s guilt. But that same fact might be construed by a juror who grew up under similar conditions as evidence that the defendant feared mistreatment by police. Neither should be excluded simply because their views reflects an outside source of juror influence.

But racism should. Views about the real-world effects of discrimination are not pernicious like base stereotypes that “illegals” lie or that “Mexican men…believe they c[an] do whatever they want[] with women.” Empathy deepens deliberations no less than bigotry debases them. Scruples can inform the jury as much as dogmatism infects it.

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    When the Supreme Court sets out to reconcile these two ideals of the jury, it should allow defendants to challenge a verdict only when evidence reveals animus, dogmatism or other biases like financial conflicts or family relationships that would have warranted keeping people off the jury in the first place. These forms of bias (alone) our criminal justice system cannot tolerate.

    A ruling along these lines could even support changes in other questions about the jury: For example, broadening the kinds of diversity required in the pool of prospective jurors, narrowing the reasons that would-be jurors are automatically excluded from serving or instructing those who make it onto the jury to deliberate in ways that encourage perspective sharing and open-minded cooperation. A just vision of the jury that takes seriously its conflicting ideals begins by recognizing that all bias is not equal.

    Dov Fox is associate professor of law and director of the Center for Health Law Policy & Bioethics at the University of San Diego School of Law. The views expressed in this commentary are his own.