By Jingyi Cui

In a landmark Supreme Court ruling requiring the disclosure of any jury deliberations with evidence of racial or ethnic bias, the majority opinion used the work of Yale Law School professor James Forman LAW ’92 to support the court’s argument.

The Supreme Court case concerned a 2010 sexual assault trial in Colorado in which a juror made a statement indicating that the defendant was guilty because of his race. The juror’s comments were confirmed by two other members of the jury whose sworn statements were submitted to the court after the trial. The majority opinion pointed to the Sixth Amendment right to an impartial jury as well as the 14th Amendment right to equal protection under the law. Writing for the court majority, Justice Anthony Kennedy cited Forman’s 2004 article in the Yale Law Journal about jury bias in the 19th century to argue in favor of introducing evidence of racial bias in jury deliberations.

“Racism in our society doesn’t go away when a jury is empaneled. People bring their biases, explicit or implicit, with them,” Forman told the News, adding that the decision was essential and “overdue.”

Until the March 6 decision, the Supreme Court had maintained that even egregious misconduct in the jury room cannot be used to challenge a conviction if jurors are required to testify on their deliberations. The 5–3 decision in Pena-Rodriguez v. Colorado reversed the initial Colorado Supreme Court decision and broke from the traditional practice of keeping jury deliberations secret.

In the passage quoted by Kennedy, Forman describes jury practices in the American South immediately following the Civil War, a climate in which all-white juries often penalized black defendants particularly harshly while showing greater leniency towards violence committed by white defendants, including Ku Klux Klan members.

Forman’s article in the Yale Law Journal grew out of a paper he wrote during his third year as a student at Yale Law, where he took a seminar on the Bill of Rights with professor Akhil Amar ’80 LAW ’84. In the paper, Forman argued that the question of racial justice among juries was important to the drafters of the 14th Amendment.

Forman received the news that the Supreme Court had cited him when the ruling was released. Forman’s work was initially referenced in an amicus brief filed by the Constitutional Accountability Center. The brief argued that blanket protections of jury secrecy undermine the U.S. Constitution’s commitment to giving citizens an impartial trial by jury.

Chief counsel of the CAC Brianne Gorod LAW ’05 said that the amicus brief cited Forman’s work because it provides a powerful exposition of Reconstruction-era constitutional history — the period that witnessed the ratification of the 14th Amendment.

Gorod said she was especially pleased that Kennedy, in citing Forman’s work, wrote powerfully about the significance of the country’s “second founding” — the ratification of the Civil Rights Amendments that led to an imperative to purge juries of racial bias.

In an interview with the News, Stanford law professor Jeffrey Fisher, also the lead lawyer in the Supreme Court case, said Forman’s work influenced his litigation.

“The fact that the court was so moved by it that it included it in the opinion is a testament to professor Forman’s work,” Fisher said.

In a March 18 op-ed for The New York Times, Amar wrote that Kennedy’s willingness to cite historical scholarship illustrates the spirit of true constitutional originalists, who give due weight to the writings of later generations of amenders.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor LAW ’79 and Elena Kagan joined the majority opinion