Fault Lines
13 February 2019
kennedy clown

Justice Kennedy Says Creepy Clowns Are a Race

March 15, 2017 (Fault Lines) — In Pena-Rodriguez v. Colorado, Justice Anthony Kennedy, writing for a majority of five, held that where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

A jury deliberated in a Colorado criminal case about whether a Mexican male had sexually assaulted two kids. The jury acquitted on the felony charge, and found the defendant guilty of two misdemeanors, for which the defendant got probation.

After the verdict, two jurors approached a defense lawyer and said another juror had made comments about Mexican males, including “I think he did it because he’s Mexican and Mexican men take whatever they want.” Although the trial judge had allowed defense counsel to speak with the jurors after the verdict was rendered, and that is how counsel found out about the statements, the judge refused to consider affidavits from the jurors in support of a motion for new trial because of an anti-impeachment rule similar to Federal Rule of Evidence 606(b).

Federal Rule of Evidence 606(b) provides:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During 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.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

In the flowery language for which he has become well known, and sometimes ridiculed, Justice Kennedy wrote, “It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.” Slip op. at 13. (Italics added.)  Despite the Court’s earlier precedents, common law, and Federal Rule of Evidence 606(b) (which the Court itself earlier approved,) Kennedy concluded that:

there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

[T]he Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

Slip op. at 17. (Italics added.)

It might surprise many Mexican-Americans to learn that they are a separate race despite the fact that they consider themselves Caucasians.[1] If Mexican-Americans are deserving of special protection because of their “race,” then certainly German-Americans who have in the past been the subject of deadly bias in America are in the same boat. And women, what “race” do they fall into?[2]

Are the oft-discriminated-against “creepy clowns” a “race?” There is simply no doubt that “creepy clowns” are a hated insular minority among the general population (of clowns.) See, e.g., Tamara Palmer, Awareness, Clown Perspective, Clowns Without Borders (Oct. 22, 2016) (condemning “creepy clowns.”) As Fault Lines contributor Greg Prickett has chronicled, a Texas police officer has openly urged the police to “[p]op a cap in the first clown you see.[3]

It is probably not completely fair to poke fun at Justice Kennedy. As Justice Alito pointed out, even the opposing lawyers seemed not to recognize or care about the difference between the words “race” and “ethnicity.” Alito slip op. at 2. n. 1. Of course, those lawyers, and the Justices, are not obligated as trial judges to apply the incoherence of Kennedy’s opinion.

As a practical matter, the incoherence of the opinion regarding race and ethnicity is not what I am primarily concerned about. When the Pena-Rodriguez jury was discharged, the trial judge gave them the following instruction as mandated by Colorado law:

The question may arise whether you may now discuss this case with the lawyers, defendant, or other persons. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision. . . . If any person persists in discussing the case over your objection, or becomes critical of your service either before or after any discussion has begun, please report it to me.

Slip op. at 3.

But, what if an instruction, given after the receipt of a guilty verdict, read this way: “You are now excused. However, without my written permission, you may not speak to defense counsel, the defendant, or anyone else acting on behalf of the defendant about your deliberations as jurors.” Would such an instruction or something like it be permissible? Justice Kennedy does not tell us. But Justice Alito saw the problem in stark terms.

Justice Alito writes:

Today’s ruling will also prompt losing parties and their friends, supporters, and attorneys to contact and seek to question jurors, and this pestering may erode citizens’ willingness to serve on juries. Many jurisdictions now have rules that prohibit or restrict post-verdict contact with jurors, but whether those rules will survive today’s decision is an open question . . .

Alito slip op.at 20.

Alito emphasizes this cavernous hole in Kennedy’s opinion:

The majority’s emphasis on the unique harms of racial bias will not succeed at cabining the novel exception to no-impeachment rules, but it may succeed at putting other kinds of rules under threat. For example, the majority approvingly refers to the widespread rules limiting attorneys’ contact with jurors. . . . But under the reasoning of the majority opinion, it is not clear why such rules should be enforced when they come into conflict with a defendant’s attempt to introduce evidence of racial bias. For instance, what will happen when a lawyer obtains clear evidence of racist statements by contacting jurors in violation of a local rule?  . . .

Id. at n. 15.

In Pena-Rodriguez, we observe more of Justice Kennedy’s penchant for doing “justice.” Having turned a long-standing rule of law into a shambles, Kennedy leaves it to the rest of us to pick up after him.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[1] According to the PEW Research Center, “Federal policy defines ‘Hispanic’ not as a race, but as an ethnicity. And it prescribes that Hispanics can in fact be of any race.” See also United States Census Bureau, About Hispanic Origin (January 26, 2017) (“Persons who report themselves as Hispanic can be of any race and are identified as such in our data tables.”)

[2] According to Wikipedia (my source for everything), Herodotus, the Greek historian, reported upon the Amazons (Greek: Ἀμαζόνες, Amazónes, singular Ἀμαζών, Amazōn) as a “race” of women warriors.

[3] For more about “creepy clowns” from Fault Lines, see here, here, and here.

2 Comments on this post.

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  • Chris Seaton
    15 March 2017 at 11:25 am - Reply


    I’m left perplexed by one question raised yesterday. Do Jamaican Vampire Pimps count as a “race” under your analysis?

    As always, thank you for the enlightened education.


    • Richard G. Kopf
      15 March 2017 at 1:32 pm - Reply


      I seldom have the living dead appear before me (except for lawyers). Even though that is true, I probably should not answer the question because it is possible such a case might confront me in the future. While I cannot answer the question for you, I do have a method by which you might answer your own question.

      Buy a live chicken. Slash the bird’s throat. Drink the blood. Do what Bob Marley would have done. Then, and only then, ask yourself the question. I am reasonably certain that the correct answer will come to you.

      All the best.


      PS Of course, you could also write Justice Kennedy as well.