Racial Bias in the Jury Room Post Sanchez: New Strategies for the Defense

When overt racial or other unconstitutional bias enters the jury room, simply removing the offending juror does not erase the resulting constitutional harm. The Ninth Circuit held that the Remmer presumption of prejudice applies when racial bias arises during deliberations, shifting the burden to the government to rebut that presumption. The court ultimately reversed six fraud convictions after concluding that excusing the biased juror and allowing the remaining eleven jurors to continue deliberating failed to cure the prejudice. In this program, Orly Ahrony, Managing Partner of Ahrony Appeals Law Group, examines the Ninth Circuit's landmark decision in United States v. Sanchez, a case involving jurors who made derogatory remarks about Hispanic culture, referenced the cartel, and expressed bias toward LGBTQ individuals during jury deliberations. The discussion covers the Ninth Circuit's reasoning, including why the government failed to establish harmless error and how the stigma surrounding the reporting of racial bias contributed to an incomplete trial record. Attendees will also examine the intersection of Sanchez with California Penal Code section 745 and AB 1071, which lowers the prima facie threshold under the California Racial Justice Act and expands relief to post-conviction proceedings. Attendees will gain practical guidance on this evolving area of law and effective strategies for identifying, preserving, and litigating racial prejudice claims in criminal cases. Audio versions of Beverly Hills Bar Association programs are eligible for Self-Study CLE credit in California. Visit www.bhba.org/podcasts for more information.