Split Sixth Circuit Panel Holds That A Federal Civil Litigant Has An Equal Protection Right to a Jury Deliberation Free of Racial Bias

In Harden v. Hillman, No. 20-5056 (6th Cir. Apr. 6, 2021), a split panel vacates and remands a defense verdict in a § 1983 case, where a juror testified post-trial that other jurors engaged in racial stereotyping during deliberations.

The plaintiff, who is Black, claimed excessive force against Officer Hillman, who allegedly roughed him up during an arrest at a convenience store. (A variety of other claims were dismissed on summary judgment.) The jury returned a defense verdict. Plaintiff filed two motions for a new trial, one based on evidentiary rulings and attorney misconduct and the second based on alleged juror bias.

On the second motion, plaintiff was allowed to interview the former jurors. He obtained an affidavit from Juror T.H., a Black woman who testified that her “service on the jury was a very painful, humiliating and embarrassing experience, so much so that it has caused me not to ever again want to serve on another jury. I feel this way because of the blatant racial stereotyping, bias, and prejudice shown by my fellow jurors toward Mr. Harden and his legal team.” In particular, she said that the white jurors referred to the plaintiff as a “crack head,” accused the plaintiff and his wife of “taking dope or drinking during breaks in the trial,” and called the Black lawyers who made up plaintiff’s legal team the “Cosby Show.”

Summarizing, T.H. stated that “It is my very firm and absolute belief that Mr. Harden did not get a fair trial because of his race and racial stereotyping. Furthermore, there is absolutely no doubt in my mind that the race of the lawyers was a significant factor.” She also noted that the jury listened intently to the defense lawyers, “but gave no consideration at all to [Harden’s counsel’s] points.”

The district court excluded T.H.’s affidavit under Federal Rule of Evidence 606(b) – the “no impeachment” rule – which states that “[d]uring an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.”

The district court then denied the motion for a new trial. It held that Harden failed to make “a sufficient showing that one or more jury members made statements exhibiting overt racial bias thus, casting serious doubt on the fairness and impartiality of the jury’s deliberations and verdict.”

Judge Clay, joined by Judge Donald, remands the case for a further hearing on racial bias during deliberations. (On all other grounds, the panel affirms the district court.) The majority bases its analysis on the recent decision Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), which held that the Sixth Amendment carves out an exception to Rule 606(b) and requires district courts to consider evidence of a racist statements during jury deliberations in criminal cases.

While this was a civil trial, not subject to the Sixth Amendment, “the Fourteenth Amendment’s guarantee of ‘equal protection of the laws’ provides a sufficient basis to extend Pena-Rodriguez to civil cases.” Indeed, the Supreme Court in Pena-Rodriguez “repeatedly invoked the Fourteenth Amendment in its efforts to root out discrimination from the jury system.” The panel also notes that in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court had held that peremptory challenges could not be exercised to exclude potential jurors in a civil trial because of race.

The panel majority also holds that it was too high a bar to require proof of explicit racial bias actually guiding the verdict. It was sufficient to show that the jury was influenced by racial stereotyping.

For instance, “[l]ittle needs to be said about the pervasive and harmful racial stereotypes regarding African Americans and drugs, and specifically, crack cocaine.” The panel majority traced the close historical relationship of drug policy and racial politics. The panel majority observes that T.H.’s affidavit described plaintiff as a “crack addict” who intended “to start trouble with Officer Hillman so he could sue the police department and get some money.” Moreover, “[s]imply because Harden’s romantic partner nodded off during the trial, the jury assumed that she was on heroin. As the preceding discussion shows, the jury’s wholly unsupported belief that Harden and his romantic partner were hard drug users demonstrates overt racial bias. And the jury’s characterization of Harden’s African American legal team as the ‘Cosby Show’—a reference to a comedy show with an African American cast—only bolsters this conclusion.”

Because the statements showed that racial stereotypes were potentially a significant motivating factor in the deliberations, the panel majority holds that it was an abuse of discretion to exclude Juror T.H’s affidavit. On remand, the district court is directed to “hold a Remmer [v. United States, 347 U.S. 227 (1954)] hearing to allow Harden a meaningful ‘opportunity to establish actual bias.’”

Judge Suhrheinrich, while concurring in much of the opinion, dissents from the remand and holds that it was not an abuse of discretion to exclude the affidavit. The dissent would hold that T.H.’s statements do not fall within “the very narrow exception to the no-impeachment rule of” Rule 606(b). While the statements in T.H.’s affidavit “exhibit predilections unfavorable to Harden[,] …. they are all based on Harden’s perceived vices—addictions and greed—not his race. Although the Cosby Show comment comes somewhat closer to the racial bias bullseye, it does not directly reference the jurors’ beliefs about Harden: one must infer that because the jurors thought that Harden’s African American legal team was comical, they also thought Harden was not credible because of his race. This is clearly not the type of overt racial bias the Supreme Court condemned in Pena-Rodriguez, but rather the type of ‘off-hand comment’ the Court said did not meet the threshold.”

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