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Speaker 1: There's a centuries old legal principle that says what goes

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Speaker 1: on in the jury room stays in the jury room.

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Speaker 1: That is, in federal court. In most states, once there's

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Speaker 1: a verdict, judges generally won't listen to evidence that a

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Speaker 1: juror did or said something improper during deliberations. The Supreme

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Speaker 1: Court today carved out an important exception in a five

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Speaker 1: three decision. The Court said judges can consider evidence that

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Speaker 1: a juror made racially biased comments during deliberations. The ruling

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Speaker 1: divide the court along ideological lines, with Justice Anthony Kennedy

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Speaker 1: joining the courts for Democratic appointees. With us to talk

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Speaker 1: about the ruling is David Strauss. He's a constitutional law

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Speaker 1: professor at the University of Chicago and he filed an

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Speaker 1: amicus brief on behalf of the criminal defendant in this case.

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Speaker 1: So I suspect he's going to be happy with today's ruling. David,

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Speaker 1: thanks for joining us um tell us. Just about the

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Speaker 1: case before the court. How did this issue come up? Sure,

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Speaker 1: the case came up because the defendant was accused of

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Speaker 1: various crimes. Is involving improper sexual conduct with some young women,

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Speaker 1: and he was Mexican American, and he was tried and

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Speaker 1: he was convicted. Although he wasn't convicted of the most

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Speaker 1: serious crimes he was charged with, he was convicted with

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Speaker 1: some of the lesser offenses. And there was also reason

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Speaker 1: to think the jury had some trouble reaching the verdict,

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Speaker 1: judging from the communications they had with the judge. Then

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Speaker 1: after the verdict, the couple of jurors said to the

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Speaker 1: defense lawyer, one of the jurors said things that revealed

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Speaker 1: bias against Mexican Americans. He said, I'm a former law

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Speaker 1: enforcement officer, and I can tell you Mexican American men

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Speaker 1: just think they can have their way with women. Nine

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Speaker 1: times out of ten in my experience, this former law

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Speaker 1: enforcement officer said in the jury room, nine times out

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Speaker 1: of ten in my experience, when a Mexican man is

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Speaker 1: accused of sexual assault, he's guilty, and some other things

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Speaker 1: along those lines. The defense lawyer then went to the

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Speaker 1: judge and said, I have this evidence from two jurors

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Speaker 1: that this one juror voted on this case was biased

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Speaker 1: against Mexican Americans, and I'd like to have a hearing

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Speaker 1: to see whether that affected the verdict. And the judge

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Speaker 1: following the rule that you mentioned that you can't use

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Speaker 1: the statement name in the jury room to attack a verdict.

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Speaker 1: The judge said, no, I can't allow that, and that

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Speaker 1: was how the issue reached the Supreme Court, where this

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Speaker 1: statement could be used to try to attack the verdict. Well,

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Speaker 1: and now the Court David has ruled that in fact

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Speaker 1: you can have a hearing to attack the verdict that way.

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Speaker 1: But how big a deal is this is a decision.

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Speaker 1: It really does seem to um change the rules on

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Speaker 1: how to do an attack on a jury verdict. Uh,

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Speaker 1: it's not clear how big a deal it'll be. Greg's

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Speaker 1: the one. The court was very clear in saying, um,

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Speaker 1: you can have a hearing on this issue when you

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Speaker 1: have a clear statement from a jury revealing bias. So

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Speaker 1: if all you have is a bunch of ambiguous comments

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Speaker 1: may or may not suggest some kind of bias, well

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Speaker 1: it sounds like that's not going to be enough. It

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Speaker 1: has to be a relatively clear statement. And I don't

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Speaker 1: know how often, I don't know how often that goes on.

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Speaker 1: Of course you hope, but hardly ever it goes on,

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Speaker 1: And of course not every time it goes on, will

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Speaker 1: it come to light. So I'm not sure whether this

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Speaker 1: will It certainly won't be an earthquake in the administration

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Speaker 1: of criminal justice, but I suspect we will see an

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Speaker 1: occasional case in which this makes a difference. David, Some

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Speaker 1: of the justices, the three justices who dissented, were concerned

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Speaker 1: that this would open the door, And so I wonder

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Speaker 1: what about comments about gender discrimination, or religion or sexual orientation.

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Speaker 1: Are those as important to the justices as racial discrimination. Well,

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Speaker 1: that's a very good question. It's a question the justices

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Speaker 1: asked during oral argument, and the answer given by the

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Speaker 1: detenden's lawyer was obviously those things are important too, But

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Speaker 1: race has a special significance in our history, and the

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Speaker 1: Rachel bias in our criminal justice system has been especially

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Speaker 1: bad evil and one that we've really tried to root out. Now,

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Speaker 1: whether the court will hold a line right there if

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Speaker 1: the case comes up involving some other kind of bias,

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Speaker 1: I think that's hard to say. I think it would

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Speaker 1: be difficult. For example, if a case like this came

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Speaker 1: up and it was an anti Muslim statement in the

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Speaker 1: jury room, it can be difficult for the court to

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Speaker 1: say no, no, you can't use that. You could use

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Speaker 1: it if it were about the person's race but not

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Speaker 1: about the person's religion. I think that would be a

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Speaker 1: difficult line for the court to draw, for example. But

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Speaker 1: the court will certainly draw some lines and not allow

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Speaker 1: any talk about anything funny that went on in the

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Speaker 1: jury room to be used as a basis to undermine

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Speaker 1: the verdict. That's that's why these rules are in place

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Speaker 1: in the first place. There you know, jurors sometimes do

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Speaker 1: some pretty funny stuff back there in the jury room,

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Speaker 1: and courts don't want to get into overturning a verdict

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Speaker 1: every time that happens. One thing the court did in

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Speaker 1: this case that distinguished earlier cases, including one where some

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Speaker 1: jurors apparently we're using drugs, drugs and alcohol before they

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Speaker 1: reach their their decision. David, I want to ask you,

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Speaker 1: so if I understand this ruling, Uh, the court didn't

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Speaker 1: say there has to be a new trial here, just

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Speaker 1: that the trial judge should should listen to this evidence. What,

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Speaker 1: if anything, do we know about how the trial judge

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Speaker 1: is gonna what standards are going to apply to whether uh,

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Speaker 1: bias comments in a jury room are so bad that

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Speaker 1: they weren't a new trial. Know the opinions a little

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Speaker 1: to my reading, the opinions a little unclear on that.

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Speaker 1: And I think one future question will be the court

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Speaker 1: said we're going to trust the discretion of the trial judge.

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Speaker 1: One future question will be just how bad does the

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Speaker 1: evidence have to be before the judge will say, Okay,

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Speaker 1: this verdict was tainted, I'm throwing it out. I think

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Speaker 1: a lot of those issues still remain to be decided,

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Speaker 1: or it's possible the Supreme Court and the other courts appeals,

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Speaker 1: the Courts of Appeals, and the in the federal system

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Speaker 1: and state pellate courts will take the position and look

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Speaker 1: at a trial judge presided over the trial has a

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Speaker 1: good sense of the trial, good sense of this jury

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Speaker 1: will trust his or her discretion to decide what should

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Speaker 1: be done. I want to thank our guest David Strauss.

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Speaker 1: He is the faculty director of the Supreme Court and

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Speaker 1: a pellate clinic at the University of Chicago Law School.

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Speaker 1: Talking about today's Supreme Court decision involving racially biased statements

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Speaker 1: made in the jury room, uh Supreme Court said that

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Speaker 1: judges can can hear evidence about those comments