Justice Elena Kagan called it “the best smoking-gun evidence you’re ever going to see about race bias in the jury room.”

Now she and her colleagues on the Supreme Court will need to decide whether it is a good enough reason to allow a Hispanic defendant to challenge the long-standing principle of secrecy in jury deliberations.

A lawyer for Miguel Angel Peña Rodriguez told the court Tuesday that the constitutional right to a trial by a fair and impartial jury justified asking a judge to look behind the guilty verdict to jury deliberations that usually are secret.

In his case, a juror said during deliberations that he felt that Peña Rodriguez was guilty of sexual assault because he was Mexican, and “Mexican men take whatever they want.”

Peña Rodriguez was challenging federal rules and those employed in Colorado and elsewhere that forbid challenging statements made during jury deliberations. But his attorney, Stanford law professor Jeffrey Fisher, said those rules must give way if there is an allegation of racial discrimination.

“This is a principle that goes quite a ways back in the court’s jurisprudence, which is the perception of fairness when it comes to racial bias and racial discrimination is paramount,” Fisher said. He said 18 states already allow such investigation.

Fisher found support among the court’s liberals but was immediately questioned by Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. about where he would draw the line.

“What about religious bias?” Roberts asked. “Same thing in this case, except it’s not, you know, this is how Mexicans act. It’s this is how Catholics or Jews act, so they’re obviously guilty. Wouldn’t that also come under your exception?”

Fisher said he was only advocating that racial remarks be covered. But Alito said that was avoiding the inevitable.

“You’re not being very helpful to the court in your answers,” Alito said. “Suppose we start with race, and the next case involves religion. Now, how would you distinguish religion from race if we were to reach an opposite conclusion in the religious case?”

Justice Ruth Bader Ginsburg said gender stereotypes could be another example.

But Fisher said those would be questions for another day and that the court often identifies racial discrimination as the first “evil” to try to eradicate.

Justice Sonia Sotomayor agreed. “I always thought the most pernicious and odious discrimination in our law is based on race.”

Peña Rodriguez was convicted of groping two teenage girls in a bathroom at a Colorado track where he worked in 2007. He denied it, and said it was a case of mistaken identity. The jury acquitted him of a felony charge and convicted him of misdemeanors.

After the verdict, two jurors told defense attorneys that another juror, identified in court papers as H.C., had made the comments about Mexicans and said as a former law enforcement officer he had seen numerous similar cases.

Peña Rodriguez’s lawyers wanted the judge to investigate the comments to decide whether they deprived their client of a fair trial. But the judge said he was barred from conducting such a review, and his decision was upheld by the Colorado Supreme Court.

Colorado Solicitor General Frederick Yarger told the justices Tuesday that the alleged comments from the juror were “no doubt reprehensible.”


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