Post-verdict Correction for Racial Animus in the Jury Room: Can it be done?

The McCowen Case in Massachusetts

Earlier this month, the Supreme Judicial Court of Massachusetts unanimously rejected the appeal of Christopeher McCowen, who was convicted of murdering Christa Worthington on Cape Cod. The major grounds for McCowen's appeal was that jurors revealed, after the trial was over, that the deliberations had been peppered by racially insensitive remarks and hurt feelings over perceived racial animus.

While the Federal Rules of Evidence, and most state counterparts, preclude jurors testifying about their deliberations after the fact, Massachusetts has an exception carved out for alleged racial prejudice. McCowen's appeal was allowed under this exception. Ultimately, the Supreme Judicial Court found arguments that racial animus affected the final verdict unpersuasive. New Chief Justice, Roderick Ireland, wrote in his concurrence that he wished the trial judge had conducted a more thorough voir dire of the jurors before making his initial ruling.

Ireland's opinion suggests some optimism that a post-verdict investigation of jury deliberations can be a successful method of reducing the influence of racial prejudice in the criminal justice system. This view is shared by Colin Miller, a professor at The John Marshall Law School, who wrote a piece, entitled Without Bias: How Attorneys Can Use The Right to Present a Defense to Allow for Jury Impeachment Regarding Juror Racial, Religious, or Other Bias for The Jury Expert, in March of this year.

I was one of the commenters on Miller's article for The Jury Expert. I am not so sanguine about the efficacy of post-verdict juror interviews, as a tool of reducing the influence of racial animus among jurors. I reproduce my response below. Comments are, of course, welcome.

The Hollow Promise of Post-Verdict Juror Testimony: Circumventing FRE 606(b) won't overcome racial prejudice

I have read with great interest Professor Miller's article, outlining an argument in favor of loosening the restriction on juror testimony to impeach criminal verdicts, where racial prejudice is alleged. I must say that I am not entirely persuaded that his approach can circumvent the logic of FRE 606(b). Of particular concern is a recognition that any effort at post-conviction relief begins a completely new phase of the judicial process, with new procedures, presumptions and burdens of proof. As such, one cannot easily analogize from forms of trial testimony to juror post-verdict testimony. That is, the jurors are most assuredly not testifying at the defendant's trial. Secondly, I seem to place a higher value on the interests being protected by 606(b) - namely the rights of jurors to deliberate free from state intervention or recrimination - than does Professor Miller.

Even were one able to loosen the bonds of 606(b), I am concerned that holding more post-verdict hearings, complete with juror testimony, wouldn't accomplish very much. This is a very blunt, unwieldy instrument for correcting the ills of racial animus. I outline below why I believe this to be so.

The 606(b) Exception Exception - The Massachusetts Rule

Reading the language of FRE 606(b) (and the state counterparts, which generally include the same language), there does not appear to be any room for impeaching a verdict based on racial animus infecting jury deliberations. Clearly, such animus falls squarely within the "mental processes" language and any jury discussion of racial issues falls under the "deliberations" prohibition.

Many impediments to impartial deliberations that would seem to be much more "extraneous" or "outside" have been interpreted to fall under the prohibitions of FRE 606(b). Verdicts have been allowed to stand despite the extreme depression, schizophrenia and mental retardation of jurors. The most famous case testing 606(b), Tanner v. U.S. (1978), involved a jury that got drunk and took cocaine together during deliberations. If cocaine and mental retardation don't qualify as "extraneous" influences, it is hard to think how racism might.

I was very surprised then to hear that a Massachusetts trial judge was conducting a hearing to investigate the verdict in the case of Christopher McCowen. McCowen, a black sanitation worker, had been convicted of murdering Christa Worthington, a white woman who lived on his route. A few days later, three jurors contacted the defense attorney to report racially charged irregularities in the deliberations.

I discovered that the Massachusetts Supreme Judicial Court has carved out a specific exception to 606(b) when racial animus is alleged. Although evidence that a juror made ethnically or racially prejudiced remarks during deliberations is not evidence of an "extraneous matter," the Supreme Judicial Court has held that a judge has authority to inquire into such matters because the existence of such remarks may deprive a defendant of the right to be tried by an impartial jury. Commonwealth v. Laguer (1991).

So, Mr. McCowen got his hearing (Commonwealth v. McCowen, Barstable Superior Ct., April 4, 2008). All the jurors were interviewed. A few racially insensitive remarks were recalled, as were several apologies. In the end, Judge Gary Nickerson was not convinced that racial animus infected the deliberations, something the defendant had the burden of proving by a preponderance of the evidence. So, even in a state with the most liberal standard available for reinvestigating a verdict due to racial prejudice, admitted instances of racially insensitive remarks were insufficient to bring the defendant relief.

So, you secured a hearing - now what?

I would strongly advise against relying too heavily on 606(b) exceptions to overcome racial bias in the jury room. There are just too many things working against you. First of all, while some states like Massachusetts have carved out "racial animus" exceptions to the prohibition against juror testimony on matters relating to deliberations, not many of those exceptions were enthusiastically embraced by the state Supreme Courts. A state's official position on this topic could change tomorrow.

Second, all the exception gets you is a hearing (provided you've got solid affidavits from some jurors). Convincing a judge that the verdict was the result of racial prejudice is going to be a bear. The main reason for this, of course, is that the very same jurors complaining about the verdict voted for the verdict themselves (except in Oregon and Louisiana, where criminal verdicts need not be unanimous).

Imagine that you were an African American juror, sitting on a case with racial overtones. One or two of your fellow jurors start uttering remarks that are racially insensitive, maybe even inflammatory. Will that make you more likely to vote guilty? I don't think so. So, the first question any sensible judge will have for a juror who alleges that a verdict was tainted by racial animus is, "Then, why did you vote for it?"

The most likely scenario, leading to a juror contacting a defense attorney and complaining about the racial tension in the jury room, is that the juror experiences regret about the verdict for some reason. That is, after the fact, she comes to wish that she had voted differently. Most likely, she reads about the case in the newspaper, or hears about it on television, and learns some things that did not come out at trial.

The exceptions to 606(b) are not intended, however, to circumvent the other rules of evidence. Judges know this and no good judge will allow juror regret to impeach a verdict. As the judge in the McCowen appeal wrote, "The oft-expressed second thoughts of a conscientious juror do not necessitate a new trial."

Consider the final paragraph in the opinion denying McCowen's motion for a new trial:

"One final observation is in order. For over thirty years, this author has witnessed the delivery of verdicts in serious criminal cases. Watching jurors being polled has shown in many instances, a trembling hand, a tear trickling down, or the word "Guilty" getting caught in a juror's throat. The polling of the jury in this case was extraordinary. After eight days of deliberations, not one juror trembled, or shed a tear or choked on his or her words. Unfettered unanimity was obvious from the conduct of the jurors as well as from the words they spoke as they were individually polled."

Avoiding racial prejudice in the jury room

While Professor Miller spends the bulk of his article articulating his attack on FRE 606(b), he ends with a list of sensible suggestions for minimizing the likelihood that racial animus will contaminate a jury's deliberations.

Remember that 606(b) only applies after the verdict has been rendered. If you wait until then to try to rectify problems with your jury, the horse has already left the proverbial barn. The key is to be vigilant with respect to racial issues throughout the entire trial process.

By all means, follow Professor Miller's advice with respect to jury selection, but I would pay particular attention to his admonition to request a jury instruction regarding the reporting of juror misconduct. While it might not be prudent to mention racial prejudice explicitly, it is critical that the jurors are made aware that the judge is available to help with any issues that come up during the trial and deliberations. The judge should let each juror know that she should immediately come forward if she is at all concerned that she, or any other juror, has seen, heard or done anything that she believes might not be appropriate.

With any luck, you will have a judge who can couch such an instruction in a non-threatening way. In order to avoid reactance on the part of jurors, they must perceive this admonition as a genuine offer to help them work through any issues that might emerge.

Such an instruction can be critical because the prohibition against voir dire for the jurors does not apply until after a verdict is rendered. So, if jurors come forward during any point of the trial or deliberations, a proper investigation into possible racial prejudice can be conducted.