In a recent SCOTUS decision, Pena-Rodriguez v. Colorado, No. 15-606, 580 U.S. ___ (2017) (Court’s PDF), the Court addressed “whether there is an exception to the no-impeachment rule, when after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Justice Kennedy delivered the opinion of the Court holding “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.”
Justice Kennedy reminds us all that racial stereotypes and animus has no place in our justice system. He writes that “our Nation [must] rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.” He further writes that “[t]he duty to confront racial animus in the justice system is not the legislature’s alone,” reminds us that this Court has many times enforced Constitution’s guarantee against state-sponsored racial discrimination in jury system, and concludes that “[a] constitutional rule that racial bias in the justice system must be addressed – including, in some instances, after the verdict has been entered – is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is central premise of the Sixth Amendment trial right.”
In his most recent post titled How Racism Infects Jury Verdicts, Haub Law School Professor Bennett L. Gershman looks closely at two recent SCOTUS cases – Buck v. Davis and Pena-Rodriguez v. Colorado, both dealing with a blunt situation of racial bias in criminal trials.
In Buck v. Davis, an expert witness testified that the petitioner is more likely to be dangerous because he is Black and in Pena-Rodriguez v. Colorado, one of the jurors allegedly stated that he thought the defendant was guilty because he was Mexican. Both cases are currently before the United States Supreme Court.
Prof. Gershman concludes by saying that
It is almost impossible today to discuss any issue in criminal justice without at the same time discussing the role that race plays at every phase of the process. … given the increasing focus on protecting defendants against wrongful convictions, it is critical that a defendant’s constitutional right to a fair trial before an impartial jury not be corrupted by uniquely pernicious stereotypes promoted either by a purported “expert” witness or a bigoted juror. Both instances are so inflammatory as to destroy confidence in a jury’s verdict.
Today, the Supreme Court decided Bravo-Fernandez v. United States, affirming the First Circuit’s affirmance of the defendants’ convictions. The question presented was whether an appellate reversal of a conviction in a mixed verdict case, i.e., where the jury had acquitted on some counts and convicted on others, barred a retrial where the same facts that were necessary to the acquittal were necessary to the conviction, under Ashe v. Swenson’s collateral estoppel rules. The Court held that retrial is not barred by an appellate reversal on unrelated grounds where the trial verdicts are simply inconsistent.
Interestingly, the Court left open the possibility that an appellate reversal of inconsistent convictions might bar retrial where the reversal is on a related ground that permits the court to explain the inconsistency in a way that would give the acquittals preclusive effect.
Justice Thomas filed a separate decision, suggesting that the Court should reconsider Ashe v. Swenson and its progeny, Yeager v. United States, but concurring on the ground that the Court had not extended either decision.
- Bravo-Fernandez v. United States, No. 15-537, Slip Opp. (Nov. 29, 2016) (Court’s PDF).
- United States v. Bravo-Fernandez, Nos. 14-1089, 14-1091, 790 F.3d 41 (1st Cir. 2015).
- Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
- Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 174 L.Ed.2d 78 (2009) (SCOTUS page).
On May 23, 206, the Supreme Court decided Foster v. Chatman, No. 14-8349 (U.S. 2016), a thirty-year old death penalty case raising Batson claims of racial selection of the trial jury. The court remanded the case, presumably for a new trial. You can read an analysis by Professor Bennett Gershman in his latest titled How Prosecutors Get Rid of Black Jurors.
Last week, in Molina-Martinez v. United States, the Supreme Court rejected a narrow interpretation of the plain error doctrine that would require a defendant sentenced under the wrong guideline range, but whose sentence would have been within the proper range, to show “additional evidence” beyond the plain error, that the error violated his substantial rights.
In Molina-Martinez, the defendant pled guilty to a crime that appeared to have a guidelines range of 77-96 months and he was sentenced to 77 months. On appeal, he argued for the first time that the District Court miscalculated his Guidelines range, which should have been 70 to 87 months. The Fifth Circuit agreed but held that the defendant could not satisfy the plain error requirement (F.R.Cr.P. Rule 52(b) – an obvious error that affects “substantial rights.”). It reasoned that a defendant whose sentence falls within what would have been the correct Guidelines range must, on appeal, produce “additional evidence” to establish beyond the mistake itself to show that the error affected his sentence. Based on earlier Fifth Circuit caselaw, if a defendant’s ultimate sentence falls within what would have been the correct guidelines range, the defendant must identify “additional evidence” to make that showing.
Most Courts of Appeals have adopted a less demanding standard under which a district court’s mistaken use off the wrong guidelines rang can itself serve as evidence of an effect on substantial rights, without more. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (application of an erroneous Guidelines range “‘runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside’” that range) (emphasis added); United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014); United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007). These courts recognize that, in most cases, when a district court uses an incorrect range, there is a reasonable probability that the defendant’s sentence would have been different without the error. The Supreme Court agreed, and rejected the “additional evidence” requirement for plain error review.
- Molina-Martinez v. United States, No. 14-8913, 2016 WL 1574581 (U.S. Apr. 20, 2016) (Court’s Official PDF).
- Molina-Martinez v. United States SCOTUS page.
- United States v. Martinez-Molina, 588 Fed. App’x 333 (5th Cir. Dec. 17, 2014).
- United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014).
- United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014).
- United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007).
- United States Sentencing Commission, Guidelines Manual – 2015 Version.