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Rippo and Pena-Rodriguez

Damon Rippo was the subject a major bribery investigation by the Feds and the State prosecutor in Clark County, Nevada.

Wait!  It was Rippo's trial judge who was the subject of the investigation.  Rippo, on trial in a death penalty case, moved for the judge to recuse himself.  The judge told him that he did not know whether state law enforcement was involved, and the prosecutor confirmed that it was not.  Both statements were untrue. 

At this point, we'll take a brief time-out to raise the question that's probably occurred to you as well:  What the hell is a judge who everybody knows is the target of a Federal bribery investigation doing presiding over a capital case???

It gets better:  one of the people the judge was accused of fixing cases for was a witness against Rippo.

It gets worse, for Rippo:  the judge denied the motion to recuse, and Rippo was convicted and sentenced to death.  Worse yet:  when Rippo came forward with evidence that the judge and the prosecutor's office had lied about the latter's involvement in the investigation, the Nevada Supreme Court nonetheless affirmed, finding that Rippo had failed to produce evidence that the judge was actually biased against him.

And then it gets much better:  last week, in a summary per curiam opinion, the Supreme Court sent the case back to the Nevada court because it had used the wrong standard.  Proof of actual bias isn't required; rather, the question is whether "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable."

Well, as long as it's clear...  There have been a number of cases, fortunately rare, where defendants have sought relief from judges who took bribes.  Frankly, if it's me, that's a hard and fast rule:  if you're convicted by a corrupt judge, especially of a capital offense, you get a new trial.  In practice, it will probably work out that way.  It sure should have here.

One might argue that the result in Pena-Rodriguez v. Colorado involved a corrupt jury, or, at least, a biased juror.  Pena-Rodriguez was convicted of sexual assault against two teen-agers, and after the trial two jurors contacted the defense lawyers and told them that during deliberations one of the jurors had made racially biased comments about Pena-Rodriguez and his alibi witness, also an Hispanic.  Specifically, the juror, a former law enforcement officer, told the juror that in his experience, "Mexicans" are physically controlling of women, and that "I think he did it because he's Mexican and Mexican men take whatever they want."

Dynamite stuff, but there's a problem:  the common-law aliunde rule, codified in the Federal and most state criminal rules of procedure, bars a jury's verdict from being impeached by testimony of other jurors as to what occurred during deliberations.  On that basis, the Colorado courts rejected Pena-Rodriguez's argument that the verdict was a product of impermissible racial bias.

The Court's addressed the aliunde rule on several occasions, each time using the rule to reject the claim relating to juror misconduct.  But the Court reserved the question of whether the rule should be followed where there is "juror bias so extreme that, almost by definition, the jury trial right has been abridged."

There's a school of thought, prominent in conservative circles, that only one True Answer lies for the resolution of any constitutional question.  That's bullshit, of course.  Every constitutional issue, at least in criminal law, boils down to addressing the equilibrium between liberty and order.  Some people -- all people? -- are going to place more importance on one than the other.   

The argument here isn't between liberty and order, but it's about race, and that's every bit as significant.  America produced some of the greatest political minds in history during the 18th and 19th centuries, but slavery, our original sin, could only be resolved by force of arms; as Lincoln put it in his second inaugural, "every drop of blood drawn with the lash was paid by another drawn by the sword." 

Kennedy's opinion for the 5-3 majority recites our country's shameful history of race and the jury trial; did you know that in Texas in 1865 and 1866, no fewer than 500 white men were tried for crimes allegedly committed against blacks, and every single one was acquitted? He and the four liberals find the racial aspect more compelling, while Roberts, Alito, and Thomas hew to the view that the court is adopting a slippery slope in allowing the jury's verdict to be analyzed.

And they may be right.  As Kennedy writes,

The 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.

Again, as long as it's clear...  Imagine the jury deliberation room during the trial of Won Hong v. Hill, where Won Hong is suing for injuries in an auto accident, and one of the jurors says, "Well, you know, those Asians don't know how to drive."  Or a domestic violence case involving a Muslim defendant, and one of the jurors say, "Those Arabs treat their women like shit."

 Not that far-fetched.  Keep in mind that Batson has been extended to civil cases and to gender discrimination.

I sympathize with Kennedy's point, but I think this is a bad decision which will have unintended ramifications.

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