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4th Circuit: Racial comments don’t overcome no-impeachment rule

The 4th U.S. Circuit Court of Appeals, housed at the Lewis F. Powell Jr. U.S. Courthouse in Richmond, Virginia. (U.S. General Services Administration)

The 4th U.S. Circuit Court of Appeals, housed at the Lewis F. Powell Jr. U.S. Courthouse in Richmond, Virginia. (U.S. General Services Administration)

RICHMOND — An African-American defendant who was convicted of drug and firearm charges may not interview the convicting jurors for signs of racial animus, despite a juror’s statement that his peer expressed racial prejudice during deliberations, the 4th U.S. Circuit Court of Appeals has ruled.

This is the first time the 4th Circuit has interpreted the U.S. Supreme Court’s 2017 ruling in Pena-Rodriguez v. Colorado in which the court allowed jurors to be interviewed after a case’s dismissal because it was shown that a juror’s racial bias was a significant factor in his vote to convict.

Judge J. Harvie Wilkinson III said in a unanimous Nov. 7 opinion that in the case of Trenton Birchette, who was convicted of federal drug- and firearm-related offenses by a Virginia jury, a juror’s alleged racist comments did not rise to the level of overt racism necessary to overcome the no-impeachment rule governing juries. The decision is U.S. v. Birchette.

After more than four hours of deliberation after Birchette’s trial concluded, the jury returned a guilty verdict on one count, but was undecided on three others. The jury was given an Allen charge, asking the dissenting jurors to reconsider their positions to avoid ending up with a hung jury. A half-hour later, an African-American female juror was asked to be released from the jury without explaining why. Her request was denied, and 11 minutes later the jury returned a unanimous guilty verdict on all counts.

After the verdict, a male African-American juror allegedly approached Birchette’s attorneys without prompting and said he was “sorry they had to do that,” that “a white lady said, ‘the two of you are only doing this because of race’” and that “we worked it all out.”

Birchette requested leave to interview jurors for signs of animus, but the district court denied the request, saying that the statements were “internal jury deliberations.”

A delicate balance

Birchette argued on appeal that the denial was an abuse of the district court’s discretion, but the 4th Circuit affirmed, saying Birchette didn’t show good cause because the alleged statements “do not reflect racial bias against Defendant.”

Wilkinson wrote that the no-impeachment rule is an important part of the federal rules of evidence because it ensures that jurors can speak freely during deliberations. He said that while exceptions to the rule exist, the court has declined to create new exceptions because of its importance in protecting the rights of jurors.

Wilkinson said that even in Pena-Rodriguez, the Supreme Court hesitated to grant an exception but did so because of “compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Faced with overwhelming evidence, the court decided that allowing such racial prejudice damages the perception of the jury’s role as a check against the wrongful power of the state.

However, Wilkinson said this holding was narrow.

“Two significant values were at stake,” he said. “The Supreme Court balanced the iniquity of racial animus in the jury system against the important purpose served by the no-impeachment rule … The Court further remarked that accepting jury verdicts is ‘essential to respect for the rule of law.’”

Overt bias vs. offhand comments

Ultimately, Wilkinson interpreted the Supreme Court’s ruling to mean that allowing such impeachment evidence must only be done in extreme circumstances.

“For those reasons, the Court was careful to distinguish ‘statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations’ from ‘offhand comment[s] indicating racial bias or hostility,’” Wilkinson said.

While Wilkinson indicated there was implied racial prejudice in the juror’s alleged statements, he said the evidence wasn’t enough to get around the no-impeachment rule, as it didn’t appear to be a “significant motivating factor” in that juror’s vote to convict.

Birchette’s attorney, Caroline S. Platt of the office of the federal public defender’s office in Alexandria, Virginia, declined to comment for this story. Representatives from the office of the U.S. Attorney in Virginia’s Eastern District did not respond to requests for comment.

Criminal defense attorney Steven D. Benjamin reviewed the court’s holding and said that he was not surprised by the court’s holding, as the test created by the Supreme Court to limit such challenges was highly restrictive.

“It’s a difficult test to make a threshold showing that racial bias was not just a factor, but was a significant motivating factor for a guilty verdict,” Benjamin said. “It created an exception, but it imposed a high standard.”

Benjamin said that while this case doesn’t change much about the law, it does make clear that all other measures to ensure that people harboring true racial animosity are excluded from serving as jurors must be exhausted during the voir dire process. And if a bad actor makes it through jury selection, it should be made clear to jurors that it is up to them to speak out against it.

“A careful court can ensure jurors know they can communicate with the court any substantial problems they have,” Benjamin said. “Or more importantly, they can let jurors know if there is a poisonous element, most will recognize it when they hear it, they can take action.”

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