“Some toxins can be deadly in small doses,” Chief Justice John Roberts wrote last month in the Supreme Court’s opinion in Buck v. Davis. In Buck, the Supreme Court vacated a death sentence handed down to a black defendant after an “expert” witness told the jury that black defendants are more likely to kill again than whites. Roberts is a terrific writer; his characteristically pithy aphorism rebuked a lower court, which had decided that the “future dangerousness” testimony was “de minimis”—of little importance—and should thus not affect Duane Buck’s death sentence. (Justices Samuel Alito and Clarence Thomas dissented.)
Curiously, the chief justice was on the other side in a case last week considering an equally grotesque case of racism in criminal justice, Peña-Rodriguez v. Colorado. The court majority struck down a jury verdict thoroughly infused with racism, Roberts joined Alito in his dissent, with Thomas filing a separate one. In Peña-Rodriguez, one racist juror brought into jury deliberations his own opinion (as, he said, “an ex-law enforcement officer”) that a defendant must be guilty of a sex offense “because he’s Mexican and Mexican men take whatever they want.”
The “expert” testimony in Buck took place in open court; the racist talk in Peña-Rodriguez was behind the jury room doors. Jury deliberations are presumed to be secret, and the common law had a rule of “no impeachment,” meaning that jurors could not testify after a verdict that improper considerations had swayed the jury. Over the years, that rule has been codified in state and federal rules of evidence. Federal Rule of Evidence 606(b) is the current federal version—but the rule doesn’t say that jurors can never testify about what went on in the jury room. In fact, juror testimony is permitted to show that 1) the jury was given improper information from outside about the case; 2) someone tampered with the jury with bribes or threats; or 3) someone on the jury just wrote down the wrong verdict on the official form. Colorado’s rule is similar. Neither rule contains an exception for the introduction of racism into deliberations.