Trial Magazine

Issues concerning race were central to a significant number of cases before the U.S. Supreme Court in its October 2016 Term. Strikingly, these cases span many areas—criminal law, voting, free speech, and federal statutes.¹

Twice this Term, the Court has s­poken powerfully about the need to eradicate the taint of racial discrimination from criminal trials. Hopefully, these decisions reflect a Court that is becoming more sensitive to how racism infects virtually every aspect of the criminal justice system.

In Buck v. Davis, the Court found ineffective assistance of counsel based on the defense lawyer’s use of an expert who had made a racist statement in his report and in court.² Duane Buck was convicted of killing two people. When the jury was considering whether to impose the death penalty, the initial question was whether Buck posed a future danger. 

At the time of his trial, a Texas jury could impose the death penalty only if it found—unanimously and beyond a reasonable doubt—“a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”³

Defense expert Dr. Walter Quijano, who the presiding judge appointed to conduct a psychological evaluation of Buck, considered seven “statistical factors” in determining whether he was likely to pose a future danger. The fourth factor was “race.” Quijano’s report read: “⁴. Race. Black: Increased probability. There is an overrepresentation of Blacks among the violent offenders.”⁴ 

Despite this report, the defense counsel called Quijano as a witness. On direct examination, Quijano stated that certain factors were “know[n] to predict future dangerousness,” identifying a defendant’s race as one of them. He repeated this on cross-examination by the prosecutor.⁵

Buck was sentenced to death. His conviction and sentence were affirmed on appeal, and his state and federal habeas corpus petitions were denied. Although Buck’s federal habeas corpus petition claimed ineffective ­assistance of counsel based on his lawyer calling Quijano as a witness, the district court concluded that Buck could not show that he was prejudiced because the jury likely would have sentenced him to death even without Quijano’s testimony.  

In a 6-2 decision, the Supreme Court held that “it would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. . . . No competent defense attorney would introduce such evidence about his own client.”⁶

The Court powerfully stated: “But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.”⁷ Finally, and perhaps most important, the Court was emphatic that “it is inappropriate to allow race to be considered as a factor in our criminal justice system.”⁸

In Pena-Rodriguez v. Colorado, the Court held that a jury verdict can be impeached based on racist statements a juror allegedly made during deliberations.⁹ Miguel Angel Pena-Rodriguez was convicted of sexually assaulting two teenage sisters. After the trial was over and the jury was dismissed, two jurors described biased statements made by another juror. According to them, the other juror said that he “believed the defendant was guilty because, in [his] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”¹⁰

The juror also stated, “I think he did it because he’s Mexican and Mexican men take whatever they want,” saying that in his experience, “nine times out of ten, Mexican men were guilty of being aggressive toward women and young girls.”¹¹ Finally, the jurors recounted that the juror said that he did not find the defendant’s alibi witness credible because, among other things, the witness was “an illegal,” even though he had testified that he was legally in the United States.¹²

Armed with these affidavits, the defense counsel moved for a new trial. The court denied the motion—under Colorado law, as well as federal law, actual deliberations that occur among the jurors are protected from inquiry. The Colorado Supreme Court affirmed.

The Supreme Court, in a 5-3 decision, reversed. Justice Anthony Kennedy, who wrote for the majority, powerfully declared the need to eradicate considerations of race from the criminal justice system and concluded that a hearing should be held when there is evidence of racial bias in jury deliberations. 

He declared: “[T]he Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.”¹³

Racial bias also surfaced in Bank of America Corp. v. City of Miami, where the Court addressed the question of whether a city has standing to sue as an “aggrieved person” under the Fair Housing Act.¹⁴ The city of Miami alleged that Bank of America and Wells Fargo engaged in predatory lending by directing undesirable, high-risk mortgages to African-American and Latino borrowers. 

The city argued that it was injured because of lost tax revenue due to foreclosures and greater law enforcement costs due to abandoned property. It also alleged that the bank’s practices frustrated its goal of fostering interracial association in housing. 

The Court held 5-3 that the city of Miami had standing to sue to challenge the banks’ predatory lending practices. Justice Stephen Breyer, writing for the majority, held that the city was within the zone of interests protected by the law and could sue as an “aggrieved person.”¹⁵

But the Court unanimously ruled that the city would need to allege and prove that the banks’ practices had caused the harms being claimed. It found that the Eleventh Circuit erred by finding proximate cause solely based on the foreseeability of the harm. The Court did not elaborate as to the appropriate standard for causation; instead, it remanded the case for the lower court to consider that issue.¹⁶

Racial inequalities exist in every aspect of American life. It is not surprising—and indeed, encouraging—to see the Court confronting the problem of racial bias in so many cases on its docket.

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Maureen Leddy is an associate editor at Trial.

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Notes

1. At the time this column was written, the Court had yet to issue decisions in several cases involving racial bias.
2. 137 S. Ct. 759 (2017).
3. Tex. Code Crim. Proc. Ann., Art. 37.071 §2(b)(1) (West 1998).
4. Buck, 137 S. Ct. at 768.
5. Id.
6. Id. at 775.
7. Id. at 777.
8. Id. at 770 (quoting former Texas Attorney General John Cornyn).
9. 137 S. Ct. 855 (2017).
10. Id. at 862.
11. Id.
12. Id.
13. Id. at 869.
14. 2017 WL 1540509, at *3. The author is cocounsel for the city of Miami in this litigation.
15. Id. at *4.
16. Id. at *9–10.