The 10th U.S. Circuit Court of Appeals reinstated an assault conviction despite evidence that jurors lied about racial bias in the case against an American Indian. The 10th Circuit, representing of Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma, focused on the sanctity of the jury deliberation process even when a juror stepped forward to accuse others on the panel of racial bias against American Indians.
An American Indian was charged with assault on a Bureau of Indian Affairs officer. During voir dire, the questioning of potential jurors before a jury is selected, all the jury members said they were not prejudiced against American Indians. But it was reported that during deliberations the foreman reportedly said, “When Indians get alcohol, they all get drunk.”
When another jury member argued that all American Indians do not get drunk, the foreman allegedly insisted, “Yes, they do.” And another juror spoke of “sending a message back to the reservation.”
Judge Michael McConnell wrote that Federal Rule of Evidence 606(b) does not allow a juror to testify as to any matter or statements occurring during deliberations, except in limited circumstances: for extraneous prejudicial information improperly brought to the jury’s attention, improper outside influences or a mistake in the jury form.
The panel of judges would not permit admission of the juror’s testimony, which the defense sought in order to overturn the jury verdict. U.S. v Benally, 2008 WL 4866618.
“Impropriety alone . . . does not make a statement extraneous. That would unravel the internal/external distinction and make anything said in jury deliberations ‘extraneous information’ so long as it was inappropriate,” McConnell wrote. He said courts must be careful not to “confuse a juror who introduces outside evidence with a juror who brings his personal experiences to bear on the matter at hand.”
By contrast, the 9th Circuit has said that testimony about a juror’s racial bias in deliberation can be taken into account to show deceit and to eliminate bias from the judicial system. U.S. v. Henley, 238 F. Supp. 1111 (2001). In addition, a federal trial court in New York agreed that evidence of racial bias by a juror is allowed to show whether a juror’s voir dire statements were truthful. Tobias v. Smith, 468 F. Supp. 1287 (W.D.N.Y. 1979).
But the 3d Circuit has come down on the side of limiting juror testimony about potential bias inside deliberations, saying the 9th Circuit rule is too broad. Williams v. Price, 343 F. 3d 223 (3d Cir. 2003). The opinion was written by then-Judge Samuel A. Alito Jr., who has since been elevated to the U.S. Supreme Court.
McConnell also rejected the defense assertion that Rule 606(b) is unconstitutional as applied in the case because it violates the Sixth Amendment right to an impartial jury.
There have been academic suggestions that, although racially biased statements do not fall within the exceptions to Rule 606(b), in some cases the Sixth Amendment may require admission. “[O]nce it is held that the rules of evidence must be subordinated to the need to admit evidence of 6th Amendment violations, we do not see how the courts could stop at the ‘most serious’ such violations,” McConnell wrote.
He noted that the objecting juror could have countered the biased statements by not voting with jurors to convict the defendant. And he pointed out that jury deliberations are to be treated as a “black box” even though that insulates them from potential claims of bias. It is also impossible to know if they follow judges’ instructions about the law and evidence. The defense plans to seek en banc review, which would give all the judges on the 10th circuit court of appeals an opportunity to reconsider the decision.