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Judicial Notebook: Racism in Jury Deliberations

The Supreme Court weighed in on racial bias in jury decision-making.

Posted Dec 06, 2017

By Marc W. Pearce, JD, PhD, and Jasmine Martinez, University of Nebraska–Lincoln

In October 2016, the U.S. Supreme Court heard two cases that explore the extent to which racial bias can be remedied when it infects jury deliberations.

The first case, Buck v. Stephens, involves the application of the death penalty in Texas. In 1996, Duane Buck was charged with first-degree murder for the deaths of Debra Gardner and Kenneth Butler. Buck shot and killed the couple after becoming convinced that Gardner, who had been in a romantic relationship with him, was sleeping with Butler. A disputed issue in Buck's sentencing was "future dangerousness," which under Texas law must be determined by the jury before a defendant may be sentenced to death. The prosecution presented evidence that Buck previously abused an ex-girlfriend. In defense, Buck emphasized that there was no evidence that he acted violently outside the context of a romantic relationship. He also presented testimony from a psychologist stating that he presented no disciplinary problems when incarcerated previously. The psychologist also noted that Buck's IQ suggested that he functioned within the borderline intellectual range.

Buck's defense also retained another psychologist, Walter Quijano, Ph.D., who wrote a report stating that Buck's race was a "statistical factor" that increased the probability that he would commit violent criminal acts in the future. Incredibly, Buck's attorney asked Quijano to testify at trial about the factors that were relevant to assessing future dangerousness, and Quijano told the jury that race was one such factor because "minorities, Hispanics, and black people are overrepresented in the criminal justice system." Buck's attorney then offered Quijano's report into evidence over the prosecutor's objection. Thus, the jury received evidence from Buck's own counsel stating that because Buck is African-American, he was more likely to be dangerous in the future—which, if credited, would tend to show that he is eligible for the death penalty. Notably, this proposition is meritless: It is well established that correlations between race and violence vanish when socioeconomic status is controlled (e.g., Swanson et al., 1990; Monahan et al., 2001).

Buck is attempting to overturn his death sentence on the grounds that he was denied his constitutional right to effective counsel. Research documenting the powerful influence of race in death penalty deliberations (e.g., Glaser et al., 2015) suggests that Buck's attorney may have damaged his defense. The state maintains that Buck would have been sentenced to death anyway based on other evidence, and the heinousness of the crime.

The second case, Pena-Rodriguez v. Colorado, addresses the tension between the privacy of jury deliberations and defendants' Sixth Amendment right to impartial juries. Miguel Angel Pena-Rodriguez was convicted of three misdemeanors related to harassment of two teen girls. After the trial, some of the jurors informed Pena-Rodriguez's attorney that another juror made racist comments about Mexicans. Although the trial court agreed that the juror's comments demonstrated racial bias against both Pena-Rodriguez and his alibi witness (who were Hispanic), it rejected the defense's request for a new trial because Colorado law bars jurors from testifying about matters that occurred during their deliberations. There are sound reasons for this rule; chiefly, preventing disclosure of their comments encourages open discussion and protects them from harassment after the trial. In this case, the Supreme Court considered whether this protection for jurors must give way when racial bias infects the jury from within.

The status

The U.S. Supreme Court ruled in Buck v. Stephens in a 6 to 1 vote reversing and remanding the decision and holding that Buck’s death sentence was the unjust result of racial discrimination.

The U.S. Supreme Court ruled in Pena-Rodriguez v. Colorado in a 5 to 3 vote that, notwithstanding a state evidentiary rule, the trial court must be permitted to consider the jurors' testimony.

More on Psychology and the Law

If you are interested in this topic and others like it, the University of Nebraska Lincoln Department of Psychology and Law is pleased to invite you to The Social Psychology and Law: In the Courtroom and Beyond Preconference at the Annual Meeting of the Society for Personality and Social Psychology, 2018.  The preconference will take place on Thursday, March 1, 2018, in Atlanta, GA.

This preconference features the role of social psychology in court and beyond. In two separate symposia, presenters will review their own and others’ research pertaining to attribution models of social judgment, jury decision-making, attorney behavior, mediation and other issues of psychology which inform dispute resolution decisions. Presenters will show how social psychology research findings can influence policymaking as well as practice, and attendees will have the opportunity to engage with speakers during our featured symposia, datablitz presentations, and a poster session.

Registration for the preconference is now open.

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