U.S. v. Robinson, et al., Nos. 15-4095/4100/4124 (ROGERS, Gibbons, Donald).
Three African-Americans were convicted of offenses arising out of a kickback scheme. During jury deliberations, the jury notified the court a couple times that it did not feel it would be able to come to an agreement, and the court responded with an Allen charge and instructed the jury to continue deliberating. After the jury found the defendants guilty—and against the court’s no-contact order—one of the defendant’s attorneys contacted the two African-American jurors on the panel, who reported that the jury foreperson—who was white—repeatedly told them that she believed they were reluctant to convict because they “owed something” to their “black brothers.” The defendants appealed their convictions, arguing that the foreperson’s racially insensitive remarks required granting a new trial or holding an evidentiary hearing in light of the U.S. Supreme Court’s recent decision in Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).
The Sixth Circuit affirmed the convictions. The majority found that, unlike in Pena-Rodriguez, the district court denied the motion because it was based on evidence gathered in violation of both a local court rule and a specific admonishment from the district court not to contact jurors. This fact alone was sufficient to deny the motion because a district court is entitled to oversee post-verdict juror contact. Moreover, the majority found that the holding of Pena-Rodriguez would not apply, even absent a rule violation, because it “does not apply to a mere ‘offhand comment indicating racial bias or hostility,’ but only to a ‘clear statement’ that ‘tend[s] to show that racial animus was a significant motivating factor in the juror’s vote to convict.’” The jury foreperson expressed racial bias or hostility, but her comment did not suggest that she voted to convict in reliance on that bias. Moreover, the two affected jurors expressed anger about the remarks, but nevertheless stood by their ultimate decision to vote to convict, and pointed to the evidence that ultimately swayed them.
Judge Donald dissented as to the majority’s decision with regard to the racial remarks. She considered the case in light of the historical racial discrimination in the administration of justice in the United States—and the precedents designed to minimize the role that race plays in the jury system—and concluded that, because a jury is supposed to be a criminal defendant’s fundamental protection of life and liberty against race prejudice, a statement like the foreperson’s taints the fairness and impartiality of the jury. Judge Donald read Pena-Rodriguez as casting a wider constitutional net than the majority acknowledged, reaching those statements that “cast serious doubt on the fairness and impartiality” of the jury’s decision. She reasoned that “where a juror displays a racial bias towards another juror of the same race as the defendant, that juror is incapable of impartially judging the guilt of the defendant.”
Judge Donald also dissented as to the majority’s conclusion that the district court’s Allen charges were not coercive. She noted that the first charge stated, “ultimately, all these issues have to be resolved,” which she noted “tends to mislead a jury by failing to inform the jury of its right not to reach a unanimous verdict.”