What happens in Vegas, or in a jury room, might not always stay there

Certain activities by a juror or jurors can clearly trigger a mistrial. Is this always true when it comes to racial bias?

W. S. Gilbert's illustration for "Now, Jurymen, hear my advice" from Gilbert and Sullivan's "Trial by Jury." (Via Wikipedia entry on Jury Trial. Image is public domain in the U.S.)

WASHINGTON, April 3, 2016 — Repeatedly, the Supreme Court has ruled that what goes on in a jury room cannot later be used to overturn the jury’s verdict. in both federal and state law, jurors are prohibited from testifying about what happens during deliberations.

The need for secrecy in jury deliberations is clear, and this rule is intended to assure the finality of verdicts and protect jurors from outside influences. As might be expected, however, that rule has not always stopped some erstwhile fair-minded jurors from spilling the beans.

Before a trial begins, jurors are told that there are certain rules that will govern their conduct. A violation of these rules can be considered jury misconduct and can lead to a mistrial. Communicating with witnesses, attorneys, bailiffs or judges, or really anyone other than other fellow jurors is not allowed. Bringing in “outside” evidence is also not allowed. This includes using mobile phones to “look up” information.

Juror misconduct predates the telephone. With today’s technology, including the Internet, chat rooms, networking sites and more, jurors, unfortunately, now have many avenues enabling them to stray from their required and sworn duties.

During a rape trial, a woman on a jury openly tweeted her friends, asking them to poll whether they thought the man being charged was guilty. Another case involved a juror who, despite explicit instructions from the judge not to use the Internet, looked up the definition of the illness from which the individual on trial was alleged to be suffering, as well as whether that illness affected truthfulness.

Clearly, post-verdict investigation of juror misconduct can result in invalidating some verdicts, particularly if such verdicts were reached irresponsibly or as the result of other improper juror behavior. Discovery of blatant juror misconduct can lead to a mistrial.

A current case being considered by the Supreme Court involves the question of possible juror misconduct, although the specific misconduct being alleged is not one of the items judges tell jurors are prohibited. In this case, racial bias is being alleged.

What if jurors are biased? This possibility does not render them unfit as jurors, nor does it render their verdict unfair. Nonetheless, because of the obvious concern about bias, attorneys have the opportunity to question jurors in a group or panel setting, about potential biases. Before potential jurors are impaneled, if an attorney feels a specific juror is biased, the attorney typically is allowed to strike the juror from the panel. This questioning process is called voir dire.

We all have biases. In this case, the misconduct being alleged is not that one of the jurors was biased. It is that the juror in question espoused that bias openly in a racially derogatory way, ostensibly in an effort to influence other jurors.

What if jurors do make comments highly prejudicial to one of the parties involved in a case?

The Supreme Court is now being asked to consider the case of a Colorado man a jury convicted of sexual assault on two teenage sisters. Miguel Angel Peña Rodriguez, a Mexican man, alleges that his constitutional right to a trial by an impartial jury was violated. A juror considering his case provided Rodriguez’ attorney with a sworn statement after the trial, indicating that another juror made highly derogatory remarks during the deliberations about Mexican men.

The sworn statement detailed that a juror told other jurors: “I think he did it because he’s Mexican and Mexican men take whatever they want.” That juror also allegedly said that an alibi witness for Rodriguez was not to be believed, because the witness was “an illegal.”

The Supreme Court historically has rejected requests for hearings to explore allegations made by jurors, even including cases where drug or alcohol use by jurors was alleged. By a unanimous ruling, the Supreme Court also rejected a new hearing in a notable 2014 case, where a man sought a new trial for civil compensation following a motorcycle accident. The man’s left leg had to be amputated. One of the jurors told others during deliberations that her daughter had been at fault in a similar case and that a lawsuit against her daughter would have “ruined her life.”

Justice Sonia Sotomayor provided a footnote in her opinion in that case that left the door open a bit. She said that there may be cases of juror bias so extreme that, almost by definition, the right to a jury trial has been denied. Mr. Rodriguez’ attorneys are now arguing that his case is one much like the extreme case described by Justice Sotomayor. They argue that a juror indeed injected racial hatred into the deliberations.

Among groups standing behind the principle of juror review are the NAACP Legal Defense and Education Fund and the National Congress of American Indians. Both organizations offer many examples of trials where jurors made derogatory remarks and slurs against Native Americans, African-Americans and Hispanic defendants.

In Mr. Rodriguez’ case, the Colorado attorney general offers that the verdict was based on overwhelming evidence and that none of the jurors said any of the offensive comments affected or persuaded them in reaching their decision. The AG also said that Rodriguez’ attorneys could have investigated bias further during voir dire.

It will be interesting to see what the now evenly-divided eight Justices do in this case. A split decision would mean the lower court’s ruling of guilty would stand. It is also possible the Court could postpone their result until a ninth Justice is seated. This could mean if there is a deadlock,  for Mr. Rodriguez to have a chance of obtaining a judgment anytime soon, the obstructionist Senate Republicans would need to get their act together and allow the process of selecting another Supreme Court Justice to move forward.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

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