SACRIFICING SECRECY Daniel S. Harawa* Juries have deliberated in secret since medieval times. The historical reason for the secrecy is that it promotes impartiality, which in turn protects a defendant’s right to a fair trial. But as it turns out, jurors are not always impartial. Lurid examples exist of jurors condemning defendants based on the defendant’s race, sexuality, ethnicity, and religion. Generally speaking, courts cannot hear evidence of what transpired during deliberations. In 2017, however, the U.S. Supreme Court created an exception to this rule, holding that the Sixth Amendment requires courts to hear evidence of jurors making racially biased statements. But this exception means little if defendants have no way to uncover the bias. And because juries deliberate in private, it is incredibly difficult for defendants to discover what the jury discussed during deliberations. This Article questions the wisdom of secret deliberations. It traces the history of jury secrecy and the public policy considerations that support secret deliberations, and it catalogs past attempts to record deliberations. It then discusses the racial bias exception to the jury no-impeachment rule created by the U.S. Supreme Court and explains how it is insufficient because it does not provide a mechanism for detecting bias. This Article then proposes a unique fix: that deliberations be memorialized and made part of the record in criminal cases. At times, secret deliberations frustrate, rather than promote, defendants’ fair trial rights. Accordingly, the practice of secret deliberations should be revisited. * Associate Professor of Law, Washington University in St. Louis. Many thanks to Sam Crichton, Ray Diamond, Betsy Gwin, Alexis Hoag, Brooks Holland, Emily Hughes, Marcy Karin, Peter Joy, Zachary Kaufman, Nancy Marder, Gregory Parks, Jenny Roberts, Sarah Sherman-Stokes, Maneka Sinha, India Thusi, Madalyn Wasilczuk, Kate Weisburd, and participants in the New England Clinical Conference, ABA-AALS Criminal Justice Roundtable, and Louisiana State University Law Review “We the Jury” Symposium for extremely helpful comments and conversations. A special thanks goes to Caroline Parnass, Jason Sigalos, and the editors at the Georgia Law Review for making the Article better. 593 594 GEORGIA LAW REVIEW [Vol. 55:593 TABLE OF CONTENTS I. INTRODUCTION .................................................................... 595 II. THE HISTORY OF SECRECY ................................................ 600 A. WHAT JURORS SAY BEHIND CLOSED DOORS ............... 602 B. THE NO-IMPEACHMENT RULE ................................... 606 C. RECORDING JURY DELIBERATIONS ............................ 616 III. THE VALUE OF SECRECY .................................................. 623 A. THE “PUBLIC POLICY” CONSIDERATIONS SUPPORTING SECRECY .................................................................. 624 B. A RACIAL BIAS EXCEPTION TO SECRECY .................... 627 C. THE EXCEPTION IS INSUFFICIENT ............................. 632 IV. THE PROPOSED END OF SECRECY ..................................... 640 A. THE PROPOSED PROCEDURE ..................................... 640 B. THE EFFECT OF RECORDING ON PUBLIC POLICY CONSIDERATIONS ..................................................... 644 C. OTHER THOUGHTS .................................................... 651 V. CONCLUSION ...................................................................... 655 2021] SACRIFICING SECRECY 595 I. INTRODUCTION “Sunlight is said to be the best of disinfectants . .”1 Charles Rhines was a gay man on death row in South Dakota.2 Seventeen years after Mr. Rhines was sentenced to death, his post- conviction lawyers interviewed some of the jurors who decided his fate.3 These jurors were remarkably open about what they discussed during deliberations.4 Mr. Rhines’s sexual orientation was a prominent discussion topic. One juror remembered there being “lots of discussion of homosexuality” and “a lot of disgust.”5 Another juror recalled a fellow juror commenting that “if [Mr. Rhines is] gay, we’d be sending him where he wants to go if we voted for [life in prison].”6 Yet another juror said that because Mr. Rhines is gay, “he shouldn’t be able to spend his life with men in prison.”7 The courts refused to consider the merits of Mr. Rhines’s juror bias claim because he discovered the bias too late.8 Mr. Rhines was executed on November 4, 2019, despite evidence that some of his jurors may have sentenced him to die because of his sexual orientation.9 While Mr. Rhines’s case is shocking, it is not unique. There are many examples of jurors evincing bias during deliberations, condemning defendants based on their race, ethnicity, religion, and national origin.10 For example, in an assault trial, one juror said 1 LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY: AND HOW THE BANKERS USE IT 62 (Nat’l Home Library Found. 1933) (1914). 2 Daniel S. Harawa, The Supreme Court Must Rule that Juries Can’t Sentence a Man to Death Because He’s Gay, SLATE (Apr. 2, 2019, 11:49 AM), https://slate.com/news-and- politics/2019/04/rhines-jury-death-sentence-because-gay.html. 3 Petition for a Writ of Certiorari at 2–3, Rhines v. Young, 139 S. Ct. 1567 (2019) (mem.) (No. 18-8029) [hereinafter Rhines Cert. Petition]. 4 See id. at 3 (discussing the jurors’ remarks). 5 Id. 6 Id. 7 Id. 8 See Rhines v. Young, No. 5:00-CV-05020-KES, 2018 WL 2390130, at *3, *6 (D.S.D. May 25, 2018) (denying Mr. Rhines’s motion to amend on procedural grounds), aff’d, 899 F.3d 482 (8th Cir. 2018), cert. denied, 139 S. Ct. 1567 (2019) (mem.). 9 See Convicted Killer Charles Rhines Executed in South Dakota for Stabbing Co-worker in 1992, CBS NEWS, (Nov. 4, 2019, 10:39 PM), https://www.cbsnews.com/news/south-dakota- execution-today-charles-rhines-executed-for-fatally-stabbing-co-worker-2019-11-04/. 10 See infra Section II.A. 596 GEORGIA LAW REVIEW [Vol. 55:593 that “fellow jurors believed that ‘all blacks are guilty regardless.’”11 In a separate case, a Native American defendant was on trial for assault, and during deliberations, a juror said, “‘[w]hen Indians get alcohol, they all get drunk,’ and that when they get drunk, they get violent.”12 In a case involving Jordanian defendants on trial for conspiracy to commit fraud and money laundering, one of the jurors said “you know . how everybody feels about Arabs. They’re thieves and they’re liars.”13 In another example, a juror said during deliberations in a rape case involving a Latino defendant, “Why bother having the trial. [S]pics screw all day and night.”14 In yet another example, while deliberating in a tax evasion case, a juror said, “Well, the fellow we are trying is a Jew. I say, ‘Let’s hang him.’”15 The U.S. Supreme Court has heralded the jury as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”16 Thus, when bias infiltrates jury deliberations, it “undermine[s] public confidence in the fairness of our system of justice.”17 Anything that shakes confidence in our jury system is deeply troubling because the integrity of the jury is critical not only to our system of justice, but to our entire democratic structure.18 Given the importance of the 11 Kittle v. United States, 65 A.3d 1144, 1149 (D.C. 2013). 12 United States v. Benally, 546 F.3d 1230, 1231 (10th Cir. 2008) (alteration in original), abrogated by Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017). 13 United States v. Shalhout, 280 F.R.D. 223, 230 (D.V.I. 2012), aff'd, 507 F. App’x 201 (3d Cir. 2012). 14 Commonwealth v. Laguer, 571 N.E.2d 371, 372, 375 (Mass. 1991). Throughout the Article, I quote cases that include racial slurs, which I have decided not to censor. I understand and appreciate the debate surrounding the reproduction of epithets, and I firmly believe that the appropriateness of using such harmful words often depends on context and audience. In this Article, I have decided that quoting cases, including the slurs, underscores the seriousness of bias in the jury box. 15 United States v. Heller, 785 F.2d 1524, 1526 (11th Cir. 1986). 16 Duncan v. Louisiana, 391 U.S. 145, 156 (1968). 17 Batson v. Kentucky, 476 U.S. 79, 87 (1986). 18 See Powers v. Ohio, 499 U.S. 400, 407 (1991) (“Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people.”); Balzac v. Porto Rico, 258 U.S. 298, 310 (1922) (“One of [the jury system’s] greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse.”). 2021] SACRIFICING SECRECY 597 jury, the Court has made plain that “[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury.”19 Despite the Court’s seemingly clear statement that defendants should have the opportunity to prove that bias affected their verdicts, uncovering evidence of bias during deliberations is incredibly difficult given that juries decide cases in secret.20 Simply put, defendants have no way to learn of bias affecting their trials in real time: deliberations are not part of the record, lawyers generally are not allowed to speak with jurors during proceedings,21 and in some jurisdictions, lawyers are forbidden from speaking with jurors even after a conviction is final and the jury has been discharged.22 It seems that we uncritically accept the secrecy of jury deliberations. To date, legal scholarship has not focused on how secret deliberations can undermine a defendant’s Sixth Amendment right to a fair and impartial jury,23 when secret deliberations are 19 Dennis v. United States, 339 U.S. 162, 171–72 (1950). 20 For that reason, scholars often refer to jury deliberations as a proverbial “black box.” See, e.g., Vivian Berger, “Black Box Decisions” on Life or Death—If They're Arbitrary, Don't Blame the Jury: A Reply to Judge Patrick Higginbotham, 41 CASE W.