Sacrificing Secrecy

• Publication year: 2021

Sacrificing Secrecy

Daniel S. Harawa
Washington University in St. Louis

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SACRIFICING SECRECY

Daniel S. Harawa^*

Juries have deliberated in secret since medieval times. The historical reason for the secrecy is that it promotes impartiality, which in turn protects a defendant's right to a fair trial. But as it turns out, jurors are not always impartial. Lurid examples exist of jurors condemning defendants based on the defendant's race, sexuality, ethnicity, and religion.

Generally speaking, courts cannot hear evidence of what transpired during deliberations. In 2017, however, the U.S. Supreme Court created an exception to this rule, holding that the Sixth Amendment requires courts to hear evidence of jurors making racially biased statements. But this exception means little if defendants have no way to uncover the bias. And because juries deliberate in private, it is incredibly difficult for defendants to discover what the jury discussed during deliberations.

This Article questions the wisdom of secret deliberations. It traces the history of jury secrecy and the public policy considerations that support secret deliberations, and it catalogs past attempts to record deliberations. It then discusses the racial bias exception to the jury no-impeachment rule created by the U.S. Supreme Court and explains how it is insufficient because it does not provide a mechanism for detecting bias. This Article then proposes a unique fix: that deliberations be memorialized and made part of the record in criminal cases. At times, secret deliberations frustrate, rather than promote, defendants' fair trial rights. Accordingly, the practice of secret deliberations should be revisited.

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Table of Contents

I. Introduction....................................................................595

II. The History of Secrecy................................................600

A. What Jurors Say Behind Closed Doors...............602
B. The No-Impeachment Rule...................................606
C. Recording Jury Deliberations............................616

III. The Value of Secrecy..................................................623

A. The "Public Policy" Considerations Supporting Secrecy..................................................................624
B. A Racial Bias Exception to Secrecy....................627
C. The Exception Is Insufficient.............................632

IV. The Proposed End of Secrecy.....................................640

A. The Proposed Procedure.....................................640
B. The Effect of Recording on Public Policy Considerations.....................................................644
C. Other Thoughts....................................................651

V. Conclusion......................................................................655

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I. Introduction

"Sunlight is said to be the best of disinfectants . . . ."¹

Charles Rhines was a gay man on death row in South Dakota.² Seventeen years after Mr. Rhines was sentenced to death, his postconviction lawyers interviewed some of the jurors who decided his fate.³ These jurors were remarkably open about what they discussed during deliberations.⁴ Mr. Rhines's sexual orientation was a prominent discussion topic. One juror remembered there being "lots of discussion of homosexuality" and "a lot of disgust."⁵ Another juror recalled a fellow juror commenting that "if [Mr. Rhines is] gay, we'd be sending him where he wants to go if we voted for [life in prison]."⁶ Yet another juror said that because Mr. Rhines is gay, "he shouldn't be able to spend his life with men in prison."⁷ The courts refused to consider the merits of Mr. Rhines's juror bias claim because he discovered the bias too late.⁸ Mr. Rhines was executed on November 4, 2019, despite evidence that some of his jurors may have sentenced him to die because of his sexual orientation.⁹

While Mr. Rhines's case is shocking, it is not unique. There are many examples of jurors evincing bias during deliberations, condemning defendants based on their race, ethnicity, religion, and national origin.¹⁰ For example, in an assault trial, one juror said

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that "fellow jurors believed that 'all blacks are guilty regardless.'"¹¹ In a separate case, a Native American defendant was on trial for assault, and during deliberations, a juror said, "'[w]hen Indians get alcohol, they all get drunk,' and that when they get drunk, they get violent."¹² In a case involving Jordanian defendants on trial for conspiracy to commit fraud and money laundering, one of the jurors said "you know . . . how everybody feels about Arabs. They're thieves and they're liars."¹³ In another example, a juror said during deliberations in a rape case involving a Latino defendant, "Why bother having the trial. . . . [S]pics screw all day and night."¹⁴ In yet another example, while deliberating in a tax evasion case, a juror said, "Well, the fellow we are trying is a Jew. I say, 'Let's hang him.'"¹⁵

The U.S. Supreme Court has heralded the jury as "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."¹⁶ Thus, when bias infiltrates jury deliberations, it "undermine[s] public confidence in the fairness of our system of justice."¹⁷ Anything that shakes confidence in our jury system is deeply troubling because the integrity of the jury is critical not only to our system of justice, but to our entire democratic structure.¹⁸ Given the importance of the

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jury, the Court has made plain that "[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury."¹⁹

Despite the Court's seemingly clear statement that defendants should have the opportunity to prove that bias affected their verdicts, uncovering evidence of bias during deliberations is incredibly difficult given that juries decide cases in secret.²⁰ Simply put, defendants have no way to learn of bias affecting their trials in real time: deliberations are not part of the record, lawyers generally are not allowed to speak with jurors during proceedings,²¹ and in some jurisdictions, lawyers are forbidden from speaking with jurors even after a conviction is final and the jury has been discharged.²²

It seems that we uncritically accept the secrecy of jury deliberations. To date, legal scholarship has not focused on how secret deliberations can undermine a defendant's Sixth Amendment right to a fair and impartial jury,²³ when secret deliberations are

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supposed to protect that important right. In fact, there has been stark opposition to examining the secrecy of our jury system, with one court proclaiming that "objections to the secrecy of jury deliberations are nothing less than objections to the jury system itself."²⁴

To be clear, the fact that jury deliberations are secret is a choice. The U.S. Constitution does not compel the secrecy of deliberations.²⁵ Legislatures or the courts could change the practice today if they were so inclined.²⁶ And perhaps they should have that inclination, given that jury secrecy was originally designed to protect a defendant's constitutional right to a fair and impartial jury.²⁷ Yet, today, there is evidence that secrecy may have the opposite effect by allowing juror bias to go unchecked.²⁸

The U.S. Supreme Court has provided four "public policy" rationales that support jury secrecy. According to the Court, secret deliberations (1) protect jurors from possible harassment,²⁹

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(2) facilitate freedom of debate,³⁰ (3) promote community confidence in the jury system,³¹ and (4) preserve the finality of verdicts.³²

Even though the Court did not cite any evidence supporting these rationales, this Article proceeds on the premise that the Court is correct—that jury secrecy does further these important public policy goals. Even so, it is worth revisiting the practice of jury secrecy when there is proof that it has undermined the fundamental promise that "[o]ur [criminal] law punishes people for what they do, not who they are."³³

This Article ultimately proposes that we should consider taping jury deliberations and making them part of the record to provide criminal defendants the contemporaneous ability to discover whether their juries' deliberations were infected by bias. As the Article explains, recording deliberations as part of the trial record can be done in a way that protects the Court's stated public policy considerations in support of keeping secret deliberations.³⁴ In short, deliberations could be recorded in the most unobtrusive way possible, the camera's presence could be minimized so as not to stymie free-flowing discussion, jurors' identities could be kept private, and transcripts of deliberations could be sealed.

The Article makes this argument over the course of three parts. Part II provides examples of how bias has infected jury deliberations. It then discusses the history of secret deliberations and U.S. Supreme Court case law prohibiting the introduction of evidence regarding what transpired during deliberations. Part III explores the public policy considerations the Court has marshaled to support secret jury deliberations and then notes that the Court nevertheless recently carved out a racial bias exception to secrecy

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in Peña-Rodriguez v. Colorado.³⁵ Part III also details how the Peña-Rodriguez exception inadequately protects a defendant's right to a fair trial. Therefore, Part IV proposes that jury deliberations should be made part of the record in criminal cases to allow the court and the parties to review deliberations for evidence of bias. Part IV also explains how the proposal is tailored to preserve (to the greatest extent possible) the public policy considerations that spurred secret deliberations in the first place.

That a state executed a man who may have been sentenced to die because he is gay—and that numerous people have served or are serving...