Supreme Court of Albers

SUPREME COURT OF ALBERS

______) William BRADY, ) Appellant, ) ) v. ) No. ALB-19-01 ) State of ALBERS, ) Appellee. ) ______)

OPINION

Before Taylor, Chief Justice, and Murphy, Howard, Smith, Cole, McDonald, and White, Justices.

Taylor, Chief Justice.

On September 25, 2017, a jury sitting in Albers County convicted Appellant William

Brady on three counts of sexual assault under Albers state law. Following his sentencing, Brady timely appealed his conviction and sentence to the Albers Court of Appeals on two grounds.

First, Brady argued that his designation as a “Sexually Violent Predator” (“SVP”) under Albers

Revised Statutes § 12-1298 (see Appendix) violated his rights to due process and to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution.1 Second, Brady argued that the Albers County Superior Court erred in denying his motion for a new trial based on evidence that one member of the jury exhibited clear bias against his gender during the jury’s deliberations. The Albers Court of Appeals disagreed, and affirmed Brady’s conviction, as well as the Superior Court’s sentencing order and SVP designation. Brady now appeals to this Court.

For the reasons explained below, we hold that the SVP designation process set forth in

Albers Revised Statutes § 12-1298 does not violate Brady’s Sixth or Fourteenth Amendments

1 Brady makes no claim under the Albers Constitution. rights, and that the Superior Court properly denied Brady’s motion for a new trial. We therefore

AFFIRM the decision of the Court of Appeals.

I. FACTS AND PROCEEDINGS BELOW

Prior to his arrest, William Brady resided in a wealthy neighborhood in Albers City,

Albers. He had no previous criminal record. Brady is a television comedian who produces and stars in nationally-televised sitcom. As a producer, he routinely interviewed aspiring actresses seeking roles on his sitcom. In November 2004, Brady was in discussions with one such actress,

“A.C.,” about giving her a small role on his show. According to her trial testimony, A.C. received a phone call from Brady asking if she would like to meet him at his home to discuss the job offer. A.C. “excitedly agreed,” and went alone to Brady’s mansion. Shortly after arriving,

Brady insisted that A.C. drink a cappuccino from his restaurant-grade cappuccino machine, which formed the centerpiece of one of his living rooms. A.C. alleged that after a couple of sips of the drink, she felt woozy and suspected that she had been drugged. She further alleged that after she began to feel the effects of the drugs, Brady began touching her in a sexual way against her will. A.C. managed to run from the mansion back to her car, and drove home in shock. A.C. reported these events to police twelve years later.2 Ultimately, she alleged that Brady gave her a narcotic sedative when she visited him at his mansion, and then groped her breast and genital areas, and digitally penetrated her without consent. Police arrested Brady on December 2, 2016.

Following a jury trial in the Albers County Superior Court, Brady was convicted on three counts of sexual assault. After the jury returned the verdict, the trial court judge discharged the jury. Immediately after the jury was discharged, one of the jurors, “H.P.,” left the courtroom and

2 Albers has no statute of limitations for felony crimes, including felony sexual assault. A.C. stated in interviews that she reported the assault many years later because other victims came forward, but evidence of other victims was not allowed in at the trial.

2 entered an elevator in the courthouse. Brady’s lead trial counsel, Peter McCall, happened to be in the same elevator as H.P. as he was leaving the courthouse. No other people were in the elevator.

McCall initiated a brief, friendly conversation with H.P. about the weather and other mundane topics. McCall did not ask H.P. about Brady’s trial or the jury’s deliberations. During this conversation, H.P. informed McCall, on her own initiative and without being prompted to do so, that another female juror, “C.C.,” had made certain statements that, according to H.P., indicated

C.C.’s belief that Brady was guilty because he is a male.3

Upon learning this information, McCall made arrangements to obtain a sworn affidavit from H.P., in which H.P. testified that during the jury’s deliberations, a female juror, C.C., made statements such as “[M]en think they can get away with doing this stuff every day,” and “He’s a man, he must’ve done it.” McCall then filed a motion for a new trial, asking the trial judge to set aside the conviction because a juror, C.C., was biased against Brady’s gender and voted to convict him based on that bias. The trial judge denied the motion, stating that Albers evidence rules prohibited the admission of evidence from the jury room to impeach the verdict.4

Also following the jury’s verdict, the prosecutor petitioned the trial court to determine at the sentencing hearing whether Brady should be designated a Sexually Violent Predator (“SVP”) under the Albers Registration of Sexual Offenders Act (“Albers Registration Statute” or

“Statute”). Albers Rev. Stat. §§ 12-1297, 12-1298. The Albers legislature enacted the Statute to respond to public safety concerns about repeat offenders. The legislature aimed to strengthen the

3 All jurors completed a lengthy questionnaire prior to being selected, and were thoroughly questioned by the judge and counsel for both parties during voir dire. Jurors were asked “whether they believed that they could be fair and impartial in the case.” No juror disclosed any gender biases or other biases on their juror questionnaire or during voir dire, and neither the court nor counsel observed nay indications of bias during the trial. 4 Albers R. Evid. 606(b). The language of Albers R. Evid. 606 mirrors the language of Fed. R. Evid. 606 exactly.

3 existing requirement that individuals convicted of a sex offense must register and appear on a publicly available list of those individuals’ names and addresses. The Statute allows courts to require certain convicted individuals to register for life if the court decides at sentencing that certain risk factors for reoffending are present.

At his sentencing hearing, A.C. and her family members made statements about the lasting effects of the assault. A clinical psychiatrist also testified that Brady manifested certain

“mental abnormalities making him likely to re-offend.” Brady adduced mitigating evidence that he is unlikely to reoffend because he was eighty-one and legally blind at the time of sentencing.

Brady’s lawyers objected to the SVP designation process on constitutional grounds, but the trial judge designated Brady an SVP, subjecting him to sex offense registration requirements for life.

Albers Rev. Stat. § 12-1298.

Brady filed a timely appeal of his conviction and sentence, specifically the SVP designation. Before the Court of Appeals, Brady argued that the Albers Registration Statute is unconstitutional. Brady also argued that the trial judge’s denial of his motion for a new trial violated his right to an impartial jury under the Sixth Amendment.

The Albers Court of Appeals disagreed, and affirmed both Brady’s conviction and the

SVP designation. As to the SVP designation, the Court of Appeals held that the Albers

Registration Statute is constitutional, because the effects of the SVP designation are civil and regulatory, and because the designation itself is not an element of the underlying criminal offense. The Court of Appeals also held that the trial court properly denied Brady’s motion for a new trial, because the Sixth Amendment only requires an exception to the no-impeachment rule for evidence of racial bias, and because the Court of Appeals lacked authority to recognize a

4 similar exception to the no-impeachment rule for evidence of a juror’s gender bias. Brady timely appealed the decision of the Court of Appeals to this Court.

II. STANDARD OF REVIEW

This Court reviews constitutional questions de novo. See Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 508 n.27 (1984).

III. DISCUSSION

A. SVP Designation

Brady was convicted of sexual assault, a predicate crime under the Albers Registration

Statute. Albers Rev. Stat. § 12-1298(2). Under the Albers Registration Statute, after a defendant is convicted of a predicate crime, a trial court judge makes factual findings about any evidence she finds relevant to the question of whether the convicted individual “suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses” including his or her criminal history, a psychosexual evaluation, testimony presented at trial, his or her history of treatment for mental issues related to his criminal sexual behavior, or any mitigating evidence. Id. § 12-1298(1)(c)-(f).

Following Brady’s conviction, the trial court judge designated Brady a Sexually Violent

Predator (“SVP”), based on the judge’s finding by clear and convincing evidence that Brady suffers from a mental abnormality that makes him likely to engage in sexually violent acts. A person designated an SVP is subject to the registration, notice and counseling requirements under the Statute, including mandatory registration for life. Id. § 12-1298(1)(a). Registration also imposes restraints on where the individual may reside or loiter. Id. § 12-1297(2). This Court must determine whether these statutory requirements, imposed based on judge-found facts, violate Brady’s Fifth Amendment due process rights and Sixth Amendment jury trial rights.

5 The Due Process Clause, in conjunction with the Sixth Amendment right to a jury trial, entitles criminal defendants to have every element of the crime found by a jury beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510 (1995); In re Winship, 397 U.S.

358, 364 (1970). The Sixth Amendment dictates that due process requires a jury to base its verdict on proof beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 478 (2000).

The scope of the right to a jury trial on every element of a crime depends on which facts courts consider elements of the crime. Alleyne v. United States, 570 U.S. 99, 104-05 (2013). Because the government owes due process of law to an individual before subjecting that individual to punishment, the question of whether a fact is an element of the crime depends on whether a finding of fact imposes a punishment on the defendant beyond or in addition to the statutorily- mandated sentence required by a jury’s guilty verdict. Apprendi, 530 U.S. at 477, 482-83.

In Smith v. Doe, the Supreme Court held that a sex offender registry statute did not violate the Ex Post Facto Clause because registration did not constitute retroactive punishment.

538 U.S. 84, 105-06 (2003). Smith v. Doe, however, only considered an ex post facto challenge to registration statutes. Thus, whether a judicially-determined SVP designation is punitive enough to violate a defendant’s due process and Sixth Amendment rights remains an open question. In an ex post facto challenge, the question before the court is whether a state can enact a particular retroactively-applicable sex offense registry scheme, or whether creating such a scheme violates the Ex Post Facto Clause. By contrast, in a challenge like the one before this

Court, the question is more specific: whether the SVP determination can be made by a judge, or whether it must be made by a jury.

Although any retroactive punishment could violate the Ex Post Facto Clause, the Due

Process Clause and Sixth Amendment only prohibit a judge from imposing punishment that the

6 jury’s verdict alone does not allow. Apprendi, 530 U.S. at 490. The Sixth Amendment right to a trial by jury, in conjunction with the Due Process Clause, affords defendants the right to have a jury decide each element of a crime beyond a reasonable doubt. United States v. Gaudin, 515

U.S. 506, 510 (1995). In Apprendi, the Supreme Court reaffirmed that the Due Process Clause, in combination with the Sixth Amendment right to a trial by jury, entitles a defendant to a jury determination of each element of the crime with which he is charged beyond a reasonable doubt.

530 U.S. at 476 (citing Jones v. United States, 526 U.S. 227 (1999)). Moreover, the Apprendi

Court clarified that any fact that increases the maximum penalty for the defendant is an element of the crime that must be charged in the indictment and found by a jury. Id.

Although judicial imposition of punishment, usually through sentencing, remains permissible under Apprendi, a judge does not have discretion to authorize additional punishment over that authorized by statute. Id. at 490. Further, because the rule rests on due process grounds, the standard for “punishment” in the Apprendi context is the extent to which the defendant’s liberty is infringed. S. Union Co. v. United States, 567 U.S. 343, 352 (2012). “So far as Apprendi is concerned, the relevant question is the significance of the [punishment] from the perspective of the Sixth Amendment’s jury trial guarantee.” Id. Thus the question under Apprendi is not whether a given statute is punitive, but whether the statute imposes a significant enough deprivation of liberty upon a defendant to trigger a defendant’s Sixth Amendment right to have a jury determine the facts used to impose that deprivation. Id.

Brady argues that the SVP designation is an element of the crime that an impartial jury must determine because it authorizes punishment beyond the statutorily prescribed punishment for the underlying crime. The government argues that the Statute is not punitive, and that even if it were, the SVP designation is a permissible use of judicial sentencing discretion, not an element

7 of the crime. If this Court finds that the SVP designation increases Brady’s punishment, the

Court must then decide whether the Statute is an unconstitutional violation of Brady’s due process and Sixth Amendment rights under Apprendi.

1. Whether the consequences of an SVP designation constitute punishment.

The Supreme Court has not explicitly defined what constitutes punishment in an

Apprendi inquiry, but the Court’s jurisprudence on whether a law is punitive for purposes of the

Ex Post Facto Clause5 may be informative on this question. Under the Ex Post Facto Clause, constitutional concerns arise if an ostensibly civil statute is so punitive in purpose or effect as to negate the statute’s stated regulatory intent. Smith v. Doe, 538 U.S. at 92.

The Supreme Court has used an intent-effects test to assess whether a sex offender registry statute is punitive for Ex Post Facto Clause purposes. Id. Under the intent-effects test, the Court considers whether the legislature intended the law to be punitive, and if not, whether the regulatory scheme is so punitive in effect that it negates that non-punitive intent. Id. To determine intent, the Court looks to the legislature’s stated intent, and then uses statutory interpretation tools to further ascertain legislative intent. Id. at 93-94. To evaluate the effects of a statute, the Court applies various factors to determine whether the statute’s actual effects are punitive. Id. at 92-97 (applying five of the seven factors from the intent-effects test established in

Kennedy v. Mendoza-Martinez, 374 U.S. 144 (1963)). In Smith v. Doe, the Court considered

“whether, in its necessary operation, the regulatory scheme:” (1) “has been regarded in our history and traditions as punishment;” (2) “imposes an affirmative disability or restraint;” (3)

“promotes the traditional aims of punishment;” (4) “has a rational connection to a non-punitive

5 Brady does not challenge the statute on ex post facto grounds, because the application of the Statute in his case was not retroactive.

8 purpose;” or (5) “is excessive with respect to its purpose.” Id. at 97. Applying these factors, the

Supreme Court found that Alaska’s Sex Offender Registry Statute was not punitive and did not violate the Ex Post Facto Clause. Id. at 105-06. Other courts, however, have applied the same test to other sex offense registration statutes, and have found that those statutes are punitive in effect. See, e.g., Does #1-5 v. Snyder, 834 F.3d 696, 701 (6th Cir. 2016).

Although the Supreme Court has not clearly articulated what it considers punishment for

Apprendi purposes, the Court has provided some guidance. For example, the Court held that criminal fines are punishment for Apprendi purposes. S. Union Co., 567 U.S. at 346 (holding that the imposition of criminal fines implicates the Sixth Amendment right to a jury trial on any fact that increases a defendant’s maximum potential sentence). Thus, the Court has not confined the Apprendi rule to cases where the punishment was solely an increase in prison time; other punishments may trigger the Sixth Amendment right at issue in Apprendi.

Here, we find that the Statute is non-punitive in intent and effect. Thus, imposition of an

SVP determination under the Statute does not violate Brady’s due process and Sixth Amendment rights. First, whether the Statute is punitive is primarily a question of legislative intent, and here, the legislature intended the Albers Registration Statute to be a civil, regulatory statute. See

Albers Rev. Stat. § 12-1298(1)(a). Deference must be accorded to the intent as the legislature has stated it. Smith v. Doe, 538 U.S. at 92. Because the legislature intended to create a civil, non- punitive regulatory scheme, only clear proof of significant punitive effects can negate that intent.

Id. Although the question is a close one, we do not find any such clear proof here.

Brady relies on Snyder to argue that the Statute promotes traditional aims of punishment, specifically deterrence and retribution, because the Statute’s penalties are intended to deter crime and to impose negative consequences on the offender as a means to restore the victim. See

9 Snyder, 834 F.3d at 704. Additionally, he contends that minimal evidence exists to show that registration laws in general accomplish their stated goals. Id. We find more relevant, however, that as in Smith v. Doe, “dissemination of accurate information about a criminal record, most of which is already public,” does not have the objective of punishment like shaming or banishment.

Id. at 98. Additionally, any disability or restraint imposed is “minor and indirect.” Id. at 100.

Thus, overall, we find that the Statute’s effects are not so clearly punitive that those effects can overcome the legislature’s intent.

2. Whether the Albers Registration Statute violates Brady’s due process and Sixth Amendment jury trial rights.

Although we conclude that the Albers Registration Statute’s requirements do not constitute punishment, that question is not necessarily dispositive. This Court must also decide whether an SVP determination is an element of a crime, thereby requiring a jury to make the

SVP determination using the beyond a reasonable doubt standard. See Apprendi, 530 U.S. at

490. Following Apprendi, Supreme Court has continued to clarify the constitutional limits of judicial discretion around sentencing and punishment. In Blakely v. Washington, the Court examined the subjectivity inherent in allowing courts to sentence based on judicial discretion within limits. 542 U.S. 296, 307 (2005). On review, the Supreme Court held that the state’s sentencing structure, which permitted trial court judges to increase sentences based on judicially- found facts, violated the defendant’s Sixth Amendment rights. Id. at 305. The Court rejected the state’s argument that the sentence was permissible because it was within the state’s statutory maximum for the relevant class of felonies. Id. at 303. Instead, the Court explained that a constitutionally-valid “statutory maximum” must be the maximum penalty the judge may impose based on facts either admitted by the defendant or found by the jury, and not the maximum the judge could impose after judicially finding additional facts. Id.

10 The Court again reaffirmed and extended the Apprendi rule in Alleyne, holding that the

Apprendi rule applies to facts that increase a mandatory minimum sentence. Alleyne v. United

States, 570 U.S. 99, 103 (2013). In Alleyne, a jury convicted the defendant of carrying a firearm in relation to a crime of violence. Id. at 104. The trial court judge subsequently determined that the defendant was brandishing the firearm, and relied on that finding to impose a seven-year minimum sentence. Id. The Court vacated that sentence, holding that because the brandishing was a fact that “aggravates the legally prescribed range of allowable sentences,” it was an element of a crime “that must be found by the jury.” Id. at 115; see also Hurst v. Florida, 136 S.

Ct. 616, 621 (2016) (quoting Apprendi, 530 U.S. at 494) (“Any fact that ‘expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict’ is an ‘element’ that must be submitted to a jury”).

The Supreme Court has not considered an Apprendi challenge to a sex offense registration statue, but in reviewing other challenges to similar registration laws, the Court has indicated that due process concerns can arise when facts other than the defendant’s conviction itself provide the grounds for registration requirements. See Conn. Dep’t of Pub. Safety v. Doe,

538 U.S. 1, 6 (2003) (finding no due process violation because the consequences of the challenged registration statute were based solely on defendant’s conviction). Some lower courts, however, have defined judicially-imposed sentence increases based on judicially-determined facts as permissible sentencing factors and not elements of a crime. See, e.g., United States v.

Moore, 634 F. App’x 483, 488 (6th Cir. 2015). Other lower courts likewise have been hesitant to find a constitutional violation when judicially-determined facts increase a defendant’s punishment, but do not technically increase the statutorily-mandated minimum sentence. See, e.g., United States v. Hailey, 563 F. App’x 229, 231 (4th Cir. 2014).

11 Brady argues that the consequences of the SVP designation are so substantial that the designation is an element of the crime, and that any factual finding that allows a judge to heighten the loss of liberty associated with the crime constitutes an element of the crime. See

Alleyne, 570 U.S. at 103; S. Union Co., 567 U.S. at 352. He contends that the only way to protect defendants’ due process rights is to find that the SVP designation is an element of the crime and include it as a charge in the indictment. See Alleyne, 570 U.S. at 113-14. Although we cannot ignore these due process concerns, we read Apprendi and its progeny narrowly, to stand for the proposition that judicial fact finding is permissible when a statutory scheme grants a judge the discretion to evaluate facts and to determine an accompanying penalty. Hailey, 563 F.

App’x at 231. Apprendi and Alleyne do not require a jury trial on every fact that increases the punitive effects on a defendant, but only in specific circumstances that trigger due process and

Sixth Amendment concerns. S. Union Co., 567 U.S. at 352. Only facts that increase a statutory mandatory minimum sentence or increase the penalty over the statutory maximum must be submitted to a jury. See, e.g., Moore, 634 F. App’x at 488. Here, the trial judge’s use of judge- found facts to impose an SVP designation is a permissible use of a trial court judge’s sentencing discretion. Thus, we hold that the Albers Registration Statute does not violate Brady’s due process and Sixth Amendment rights.

B. No-Impeachment Rule

Brady seeks to set aside his conviction on the basis of evidence that a female juror exhibited clear bias and hostility towards his gender during the jury’s private deliberations. The trial court rejected Brady’s motion for a new trial, holding that evidence of a juror’s bias towards the defendant’s gender is subject to the no-impeachment rule.

12 The Sixth Amendment provides that a defendant in a criminal case “shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” U.S. Const. amend. VI. Despite this guarantee of a trial by “an impartial jury,” the Supreme Court has long recognized the “no- impeachment rule,” which prohibits piecing the veil of jury deliberations. Peña-Rodriguez v.

Colorado, 137 S. Ct. 855, 861 (2017). The earliest iteration of the no-impeachment rule, the

Mansfield rule, originated in the common law, and “prohibited jurors, after the verdict was entered, from testifying either about their subjective mental processes or about objective events that occurred during deliberations.” Id. at 863. Admitting such evidence “would be replete with dangerous consequences,” and “would open the door to the most pernicious arts and tampering with jurors.” McDonald v. Pless, 238 U.S. 264, 268 (1915) (internal quotation marks omitted).

While early Supreme Court case law acknowledged that juror testimony “ought always to be received with great caution,” the Court also recognized that “cases might arise in which it would be impossible to refuse them without violating the plainest principles of justice.” United States v.

Reid, 12 How. (53 U.S.) 361, 366 (1851), overruled on other grounds by Rosen v. United States,

245 U.S. 467 (1918). Despite this observation, modern practice has generally adhered to a broad version of the no-impeachment rule. See, e.g., Tanner v. United States, 483 U.S. 107, 119 (1987)

(“Substantial policy considerations support the common-law rule against the admission of jury testimony to impeach a verdict.”).

Albers evidence rules also codify this no-impeachment rule. Rule 606(b)(1), like its counterpart in the Federal Rules of Evidence, mandates 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.” In addition, Rule

13 606(b)(1) bars a court from “receiv[ing] a juror’s affidavit or evidence of a juror’s statement on these matters.” The only exceptions Rule 606 recognizes are when a juror testifies as to whether

“extraneous prejudicial information was improperly brought to the jury’s attention,” “an outside influence was improperly brought to bear on any juror,” or “a mistake was made in entering the verdict on the verdict form.” Albers R. Evid. 606(b)(2)(A)-(C).

Since McDonald and before Peña-Rodriguez, the Supreme Court twice considered and rejected an exception to the no-impeachment rule beyond what relevant local evidence rules permit. First, in Tanner v. United States, the Court rejected defendant Anthony Tanner’s attempt to invoke an exception to the no-impeachment rule to introduce evidence that some of the jurors that convicted him were under the influence of drugs and alcohol during the trial. 483 U.S. 107,

122-25 (1987). The Tanner Court emphasized the need to protect the jury from harassment by the losing party, and the need to avoid “the destruction of all frankness and freedom of discussion and conference” that private jury deliberations should have. Id. at 119-20 (internal quotation marks omitted) (quoting McDonald, 238 U.S. at 267-68). The Court also pointed to the existing protections against juror bias: voir dire; the watchful eyes of judges, parties’ counsel, and court personnel; juror reports of misconduct to the court prior to a verdict; and the availability of extrinsic evidence of juror misconduct other than juror testimony.6 Id. at 127.

More recently, in Warger v. Shauers, the Court considered a civil negligence case in which the losing plaintiff sought a new trial based on a juror’s statements during deliberations indicating her bias in favor of the defendant. 135 S. Ct. 521, 524-25 (2014). As in Tanner, the Warger Court rebuffed an attempt to introduce evidence from private jury deliberations, basing its decision in

6 In other cases, the Supreme Court has allowed exceptions to the no-impeachment rule for extraneous influences on a juror of the jury, such as bribes. See, e.g., Remmer v. United States, 347 U.S. 227, 228-30 (1954). Here, however, Brady has not alleged any extraneous influence on any juror.

14 large part on the presence of other safeguards that help ensure a fair trial and an impartial jury.

See id. at 529.

In all of the Court’s no-impeachment rule cases, however, the Court has recognized that the Sixth Amendment may require an exception to the no-impeachment rule if a case arose where juror bias was “so extreme that, almost by definition, the jury trial right has been abridged.” Id. at 529 n.3. Such a case recently arose in Peña-Rodriguez, in which the defendant was charged with harassment, unlawful sexual contact, and attempted sexual assault on a child under Colorado law. Peña-Rodriguez, 137 S. Ct. at 861. After a three-day trial, the jury convicted Peña-Rodriguez of harassment and unlawful sexual assault, but failed to reach a verdict on the attempted sexual assault. Id.

After the jury was discharged, two jurors approached Peña-Rodriguez’s counsel privately and informed him that “during deliberations, another juror had expressed anti-Hispanic bias toward [Peña-Rodriguez] and [his] alibi witness.” Id. With the court’s permission, Peña-

Rodriguez’s counsel subsequently obtained sworn affidavits alleging that a juror made a number of statements during deliberations suggesting an explicit bias against Peña-Rodriguez’s Mexican ethnicity, including “I think he did it because he's Mexican and Mexican men take whatever they want.” Id. at 862 (internal quotation marks omitted). The trial judge denied a motion for a new trial, holding that Colorado’s evidence rules (which mirror the federal Rule 606) did not allow for admission of juror testimony. Id. The Colorado Court of Appeals and the Colorado Supreme

Court affirmed. Id. at 862.

The Supreme Court reversed, holding:

[W]here 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.

15 Id. at 869. Such an exception “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.” Id.

The Court emphasized, however, that “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry.” Id. Instead, a court may only consider evidence of a juror’s racial bias upon “a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Id. A juror’s statement will only qualify if it “tend[s] to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Id. The Court further explained that “[w]hether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.” Id.

The Supreme Court has not discussed Peña-Rodriguez or the no-impeachment rule in any meaningful detail since that case was decided. However, the Court recently denied review in a case where the petitioner challenged his death sentence on the basis that the jury sentenced him to death because of his sexual orientation. See Rhines v. South Dakota, 138 S. Ct. 2660 (2018)

(mem.). Although the lower courts have also engaged in little discussion, some lower courts have suggested that Peña-Rodriguez should not be extended beyond racial bias. See, e.g., Young v.

Davis, 860 F.3d 318, 334 (5th Cir. 2017), cert. denied, 138 S. Ct. 656 (2018).

Despite the similarities between this case and Peña-Rodriguez, we decline to extend that exception to evidence of gender bias. We agree with Brady that that nothing in Peña-Rodriguez prohibits recognizing an exception to the no-impeachment rule for evidence of a juror’s bias towards the defendant’s gender. Nothing in that decision, however, indicates that the Supreme

16 Court intended it to extend beyond racial bias. Although Justice Alito’s dissent specifically suggested that nothing prevents the exception from reaching a juror’s “bias based on sex,” the majority did not even address this concern, suggesting that they did not intend the rule to extend the exception to other forms of bias. Peña-Rodriguez, 137 S. Ct. at 884 (Alito, J., dissenting).

We acknowledge that gender discrimination is, like racial discrimination, pervasive and pernicious. “[O]ur Nation has had a long and unfortunate history of sex discrimination.”

Frontiero v. Richardson, 411 U.S. 677, 684 (1973). “[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Id. at 686. Indeed, the unique perniciousness of both racial and gender discrimination in American history and the immutability of both race and gender has led this Court to treat these classifications similarly in the equal protection context. See United States v. Virginia, 518 U.S. 515, 532-33 (1996). Even if this analogy was sufficient to support extending Peña-Rodriguez to evidence of gender bias, given the lack of any indication that the Supreme Court sanctioned such an extension, we do not believe that we should recognize an exception to the no-impeachment rule here.

Moreover, despite Peña-Rodriguez, the policy concerns underlying the no-impeachment rule continue to apply with great force. Allowing additional exceptions to the no-impeachment rule would pierce the veil that protects jury room deliberations, making it easier for a losing party to launch an eleventh-hour attack on the verdict. See McDonald, 238 U.S. at 267-68. Given these policy concerns, and given the procedural safeguards already in place, we are not convinced that an extension of the rule to cases involving alleged juror bias is either necessary or helpful. See Tanner, 483 U.S. at 127. Thus, we decline to recognize an exception to the no- impeachment rule for evidence of a juror’s bias against Brady’s gender, and affirm his conviction.

17 IV. CONCLUSION

For these reasons, this Court AFFIRMS the decision of the Court of Appeals, upholding

Appellant William Brady’s conviction and sentence.

18 SUPREME COURT OF THE UNITED STATES ______) William BRADY, ) Petitioner, ) ) v. ) No. ALB-19-01 ) State of ALBERS, ) Respondent. ) ______)

ORDER GRANTING CERTIORARI

This Court grants William Brady’s Petition for Writ of Certiorari to the Albers Supreme

Court. The Court will consider all issues raised in the court below.

______D. O’Connell, Clerk January 22, 2019

19 APPENDIX

Albers Registration of Sexual Offenders Act Albers Revised Statutes § 12-1298

(1) In general (a) The General Assembly finds that some sexual offenders should be subject to increased sex offender registry and community notification procedures. It is the intent of the General Assembly that State’s Attorneys utilize the provisions in this section to petition the court to designate those offenders who pose a greater risk to the public as sexually violent predators to ensure that those offenders will be required to register as sex offenders for life, and that they will be among those offenders who are included on the State’s Internet Sex Offender Registry. (b) Within 15 days after the conviction of a sex offense, as defined in section 12-1298(2), the State may file a petition with the court requesting that the person be designated as a sexually violent predator. (c) The determination of whether a person is a sexually violent predator shall be made by the court at the time of sentencing. (d) The court shall order a presentence investigation which shall include a psychosexual evaluation of the offender. (e) In making a determination of whether the person is a sexually violent predator, the court shall examine the following: (1) the person’s criminal history; (2) any testimony presented at trial, including expert testimony as to the person’s mental state; (3) the person’s history of treatment for a personality disorder or mental abnormality connected with his or her criminal sexual behavior; (4) any mitigating evidence, including treatment history, evidence of modified behavior, or expert testimony, which the convicted sex offender wishes to provide to the court prior to the determination; and (5) any other relevant evidence. (f) The standard of proof when the court makes such a determination shall be clear and convincing evidence that the convicted sex offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. (g) The court shall determine whether the offender was eligible to be charged as a habitual offender as provided in section 11 of this title or a violent career criminal as provided in section 11a of this title and shall make findings as to such. (h) After making its determinations, the court shall issue a written decision explaining the reasons for its determinations and provide a copy of the decision to the Department within 14 days.

20 (i) A person who is determined to be a sexually violent predator shall be subject to sex offender lifetime registration and community notification and inclusion on the Internet Sex Offender Registry as provided in this subchapter under § 12-1297. (2) Relevant Definitions (a) The term sex offender means an individual who was convicted of a sex offense. (b) The term sex offense means - (i) a criminal offense that has an element involving a sexual act or sexual contact with another; (ii) a criminal offense that is a specified offense against a minor; (iii) an attempt or conspiracy to commit an offense described in (i) and (ii).

Albers Registration of Sexual Offenders Act: Registration Requirements Albers Revised Statutes § 12-1297 (1) Registration (a) A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence. (b) The sex offender shall initially register-- (i) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or (ii) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment (c) Keeping the registration current (i) A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register. (d) Failure to comply (i) Failure of a sex offender to comply with the requirements of this subchapter can result in a criminal penalty that includes a maximum term of imprisonment of two years. (2) School Zones (a) Except as otherwise provided in this section, an individual required to register under this section shall not reside or loiter within a student safety zone.

21 (b) Failure to comply (i) An individual who violates subsection (1) is guilty of a crime as follows: (ii) For the first violation, the individual is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both. (3) Exceptions This section does not apply to any of the following: (i) An individual who is not more than 19 years of age and attends secondary school or postsecondary school, and resides with his or her parent or guardian. However, this exception does not apply to an individual who initiates or maintains contact with a minor within that student safety zone. However, the individual may initiate or maintain contact with a minor with whom he or she attends secondary school or postsecondary school in conjunction with that school attendance. (ii) An individual who is not more than 26 years of age and attends a special education program, and resides with his or her parent or guardian or resides in a group home or assisted living facility. However, an individual described in this subdivision shall not initiate or maintain contact with a minor within that student safety zone. The individual shall be permitted to initiate or maintain contact with a minor with whom he or she attends a special education program in conjunction with that attendance. (iii)An individual who is a patient in a hospital or hospice that is located within a student safety zone. However, this exception does not apply to an individual who initiates or maintains contact with a minor within that student safety zone. (iv) An individual who resides within a student safety zone because the individual is an inmate or resident of a prison, jail, juvenile facility, or other correctional facility or is a patient of a mental health facility under an order of commitment. However, this exception does not apply to an individual who initiates or maintains contact with a minor within that student safety zone.

(4) Relevant Definitions (a) “Loiter” means to remain for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors. (b) “Minor” means an individual less than 18 years of age. (c) “School” means a public, private, denominational, or parochial school offering developmental kindergarten, kindergarten, or any grade from 1 through 12. School does not include a home school. (d) “Student safety zone” means the area that lies 1,000 feet or less from school property. (e) “School property” means a building, facility, structure, or real property owned, leased, or otherwise controlled by a school, other than a building, facility, structure, or real property that is no longer in use on a permanent or continuous basis, to which either of the following applies:

22 (i) It is used to impart educational instruction. (ii) It is for use by students not more than 19 years of age for sports or other recreational activities. (f) An individual who violates this section and has 1 or more prior convictions under this section is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.