October 10, 2016
Private: The Blind Eye Afflicting Our Criminal Justice System
Christopher Durocher
Nearly a decade ago, the Supreme Court held that it is unconstitutional to take race into account in assigning students to particular schools, even if the goal is to integrate those schools. Chief Justice John Robert’s opinion for the majority dismantled two school districts’ desegregation plans and erected a roadblock to the legacy of Brown v. Board of Education. He justified the Court’s holding with the solipsistic truism that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Two cases before the Supreme Court this term present the type of undeniable, explicit racial discrimination that speak directly to the Chief Justice’s colorblind philosophy. How the Court handles these questions of racism will determine the fate of two men and will also highlight the Court’s repeated unwillingness to acknowledge the implicit racism that infects our criminal justice system.
Pena Rodriguez v. Colorado and Buck v. Davis are cases that in many ways could not be more distinct. Miguel Angel Pena Rodriguez was convicted of three misdemeanors for allegedly attempting to grope two teenage girls. Dwayne Buck was convicted of murder. Mr. Pena Rodriguez was sentenced to two years’ probation and required to register as a sex offender. Mr. Buck was sentenced to death. What they do share are juries that were both infected with explicit appeals to racist stereotypes, which in turn fatally compromised the deliberation process.
In Mr. Buck’s case, during the penalty phase of the trial his own attorney called an expert witness, Dr. Walter Quijano, who testified that Mr. Buck was more likely to commit crimes in the future because he is Black. In Texas, where Mr. Buck was tried, future dangerousness is an element the jury must unanimously find in order to impose the death penalty. The prosecutor then exploited the expert’s testimony in his closing arguments to convince the jury that Mr. Buck was too dangerous to have his life spared. The jury returned a sentence of death.
In Pena Rodriguez, the jury was in the midst of heated deliberations, when, according to two jurors’ affidavits, one member of the jury who identified himself as a former law enforcement officer, made a series of racist comments. These included observations that the defendant likely committed the crime because where the juror “used to patrol, nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” The juror also dismissed an alibi witness, who was also Latinx, because the juror claimed that the witness was an illegal immigrant, though the witness was in fact a legal resident. The jury was unable to reach a verdict on a felony charge, but found Mr. Pena Rodriguez guilty of three misdemeanors.
Though the claims of racial bias are largely uncontested in both cases, lower courts rejected requests for relief based on procedural barriers. In Pena-Rodriguez, the Colorado Supreme court rejected racial bias claim based on the statute codifying the so-called Mansfield rule. The Mansfield rule treats jury deliberations as sacrosanct and does not allow jurors to testify about those proceedings, even in cases where jurors may have acted improperly. The Colorado court found that the juror’s racism did not reach the level “so extreme that, almost by definition, the jury trial right has been abridged,” which the U.S. Supreme Court noted in Warger v. Schauers might justify abrogating the Manfield rule. It is now within the Supreme Court’s power to correct this error and make clear that explicit, racist stereotyping during jury deliberations is so extreme as to outweigh any benefits the Manfield rule may offer.
Similarly in Buck, lower courts have held that Mr. Buck waived his right to appeal the issue of his attorney’s performance in calling the expert witness and has procedurally defaulted on any claims connected with that ineffective assistance of counsel. There again, Supreme Court precedent allows exception to such procedural defaults, but lower courts held that Mr. Buck’s claims were not “extraordinary” enough to justify such an exception. The Supreme Court now has an opportunity to correct the lower court’s improper conclusion that facing death because of racist stereotypes is not an extraordinary circumstance.
These cases are particularly chilling, because it is so rare that we encounter such explicit, unashamed, uncorrected racist language in our criminal courts. And while that may be comforting to some, the implicit bias that infects every aspect of our criminal justice system should be just as chilling, particularly for the Supreme Court. Yet the court has repeatedly failed to address cases in which the subtext is often the implicit or unconscious bias that police bring to the job. In the era of Black Lives Matter, this failure is particularly glaring.
Two cases from recent years stand out in this context—Utah v. Strieff and Heien v. North Carolina—in which police illegally detained a person without probably cause and subsequently found justification for an arrest. Both reflect the Court’s refusal to deal with the scourge of pretextual stops that disproportionately impact communities of color. In her dissent in Strieff, Justice Sotomayor acknowledges that “it is no secret that people of color are disproportionate victims of this type of scrutiny.” The majority, however, blithely dismisses concerns that police will use its holdings to indiscriminately stop people of color in the hopes of finding contraband or arrest warrant. “Most striking about the Court’s opinion,” Justice Sotomayor observes, “is its insistence that the event here was ‘isolated,’ with ‘no indication that this unlawful stop was part of any systemic or recurrent police misconduct.’ Respectfully, nothing about this case is isolated.”
Even if the Court does the right thing and allows racial justice to trump procedural barriers in Buck and Pena Rodriguez, this is only the first step in correcting the Court’s course. It must still contend with its recent decisions to turn a blind eye to the systemic racial disparities and implicit bias that afflict our criminal justice system.