dissenting.
27 I agree with the majority that CRE 606(b) bars admission of the post-verdiet affidavits in this case. By its terms, that rule of evidence precludes any "inquiry into the validity of a verdict" based on juror testimony regarding statements made during jury deliberations, and Pena-Rodriguez's motion for a new trial "plainly entail[ed] an inquiry into the validity of the verdict," even if it questioned the jury's impartiality and not its thought processes. Warger v. Shauers, — U.S. —, 135 S.Ct. 521, 525, 190 LEd.2d 422 (2014) (internal quotation marks omitted). I also agree that evidence of a juror's personal bias does not qualify as "extraneous prejudicial information" for purposes of the exception in CRE 606(b)(1). See id. at —, 135 S.Ct. at 529; United States v. Benally, 546 F.3d 1230, 1237-38 (10th Cir.2008); Kendrick v. Pippin, 252 P.3d 1052, 1064 (Colo. *2942011). Nevertheless, I respectfully dissent because, in my view, Rule 606(b) "cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant's right to due process and an impartial jury." United States v. Villar, 586 F.3d 76, 87 (1st Cir.2009). Racial bias is detestable in any context, but in our criminal justice system it is especially pernicious. See Rose v. Mitchell, 443 U.S. 545, 555, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). I would hold that where, as here, evidence comes to light that a juror specifically relied on racial bias to find the defendant guilty, CRE 606(b) must yield to the defendant's constitutional right to an impartial jury.1
128 By foreclosing consideration of the evidence of racial bias alleged in this case, the majority elevates general policy interests in the finality of verdicts and in avoiding the potential embarrassment of a juror over the defendant's fundamental constitutional right to a fair trial. Although the majority believes that this result is required to preserve public confidence in our jury trial system, in my view, it has precisely the opposite effect.
129 "The right to an impartial jury is guaranteed by both the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, and by principles of due process." Turner v. Murray, 476 U.S. 28, 36 n.9, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). Our state constitution likewise guarantees this right. See Colo. Const. art. II, §§ 16, 25. Indeed, this court has observed that "(aln impartial jury is a fundamental element of the constitutional right to a fair trial." Morrison v. People, 19 P.3d 668, 672 (Colo.2000) (citing People v. Rhodus, 870 P.2d 470, 473 (Colo.1994)). Racial discrimination in our jury trial system "not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government." Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84 (1940) (footnote omitted). Importantly, the harm caused by such discrimination is " 'not limited to the defendant-there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts'" Rose 448 U.S. at 556, 99 S.Ct. 29983 (quoting Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181 (1946)).
$30 In its recent discussion of Fed. R. Evid. 606(b) in Warger, the United States Supreme Court observed that certain features built into the jury system ordinarily suffice to expose juror bias before the jury renders a verdict. Warger, — U.S. at — 135 S.Ct. at 529 (citing Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987))2 Warger involved a negligence action arising out of a motor vehicle accident. See id. at —, 135 S.Ct. at 524. In that ease, a juror allegedly stated during deliberations that her daughter had been at fault in a motor vehicle collision in which a man died and that if her daughter had been sued, it would have ruined her life. Id. Warger argued in a motion for a new trial that this statement revealed that the juror had lied during voir dire about her impartiality and her ability to award damages. Id. The Court concluded that Fed. R. Evid. 606(b) barred consideration of this evidence. Id. at —, 135 S.Ct. at 525. It also concluded that its decision in Tawmnmer foreclosed Warger's claim that Rule 606(b) was unconstitutional as applied to the cireumstances of that case. Id. at —, 135 S.Ct. at 529. In so doing, however, the Court expressly acknowledged that "(there may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged," and declined to consider whether "the usual safeguards are or are not sufficient to protect the integrity of the [jury] process" under *295such cireumstances. Id. at — n.8, 185 S.Ct. at 529 n.8. In my view, this is that exceptional case.
131 According to the two juror affidavits obtained by Pena-Rodriguez's counsel, Juror H.C. made several statements during jury deliberations indicating that he relied on racial bias to determine Pena-Rodriguer's guilt:
ePena-Rodrigues "did it because he's Mexican and Mexican men take whatever they want."
e Mexican men are physically controlling of women because they have a sense of entitlement and think they can "do whatever they want" with women.
e Pena-Rodriguez "was guilty because, in [Juror H.C.'s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women."
e Where Juror H.C. used to patrol, "nine times out of ten Mexican men were guilty of being aggressive toward women and young girls."
e Pena-Rodriguez's alibi witness was not credible because, among other things, he was "an illegal." |
1 32 In my view, the circumstances of this case reveal that the safeguards identified in Tanner are not always adequate to protect a criminal defendant's constitutional right to an impartial jury. Unlike the comment in War-ger, Juror H.C.'s multiple statements in this case evince racial bias toward a criminal defendant. And, importantly, these alleged statements reveal Juror H.C.'s inability to decide impartially the crucial issue in this case: whether Pena-Rodriguez committed the charged crimes, or whether he instead had a credible alibi.
T 33 The majority claims to adhere to "the unmistakable trend" in United States Supreme Court case law "refusing to deem Rule 606(b) unconstitutional." Maj. op. 1 24 n.6. Yet the Supreme Court has expressly acknowledged the possibility that juror bias may be so "extreme" as to call into question the adequacy of the usual safeguards to protect the integrity of the process. Warger, — U.S. at — n.3, 135 S.Ct. at 529 n.3. In my view, where, as here, it appears that a juror specifically relied on racial bias to find the defendant guilty, Rule 606(b) must yield to a defendant's constitutional right to an impartial jury, in that a trial court must be afforded the discretion to explore the validity of such allegations in the context of a motion for a new trial.
T34 The question whether evidence of a juror's racial bias should be admissible in some cases, notwithstanding Rule 606(b), is hardly uncharted territory. In Villar, the United States Court of Appeals for the First Circuit considered whether the usual Tanner safeguards suffice to protect a defendant's right to an impartial jury where racial or ethnic bias is alleged, as opposed to the type of juror misconduct at issue in Tanner. 586 F.3d at 85-87. In Villar, a juror emailed defense counsel following the verdict to report that another juror said, "I guess we're profiling, but [Hispanics] cause all the trouble." Id. at 81 (internal quotation marks omitted). Similarly, in Kittle v. United States, 65 A.3d 1144, 1147-48 (D.C.2013), a juror wrote to the judge post-verdiet alleging that some jurors felt that "all 'blacks' are guilty." Like the present case, both Villar and Kittle involved racially motivated statements directly tied to the defendant's guilt.
135 In Villar, the First Circuit concluded that "the four protections relied on by the Tanner Court do not provide adequate safeguards in the context of racially and ethnically biased comments made during deliberations." 586 F.3d at 87; see also Kittle, 65 A.3d at 1154 ("[The protections built into the trial process identified by Tanner do not adequately protect a defendant's constitutional right to a trial and jury free from racial or ethnic bias."). Although the Tanner safeguards serve to protect a defendant's Sixth Amendment right to a jury trial, they focus on juror misconduct. See 488 U.S. at 127, 107 S.Ct. 2789.3 In my view, they are *296not always adequate to uncover racial bias before the jury renders its verdict.
186 First, as the majority acknowledges, defense attorneys may, for legitimate tactical reasons, choose not to question jurors about racial bias during voir dire and instead attempt to root out prejudice through more generalized questioning. Maj. op. ¶18 n.5; see also Villar, 586 F.8d at 87 n.5; Kittle, 65 A.Sd at 1155. And even when defense attorneys are willing to probe this sensitive topic directly, jurors may be reluctant to admit racial bias during voir dire. Villar, 586 F.3d at 87. Second, jurors might not report racial comments made during deliberations before the verdict because they are unwilling to confront their fellow jurors, or because they believe they cannot report such comments before rendering a verdict, or because they are unaware that post-verdict testimony is putatively inadmissible. Kittle, 65 A.3d at 1155; see also People v. Pena-Rodriguez, 2012 COA 193, ¶ 120, 2012 WL 5457362 (Taubman, J., dissenting) (noting that the trial court instructed the jury that it would not be able to communicate with anyone during deliberations). Contre maj. op. 24. Third, observations of the jury by counsel and the court during trial are generally unlikely to uncover racial bias. Villar, 586 F.3d at 87; see maj. op. 124. And fourth, non-jurors cannot report racially biased statements made during deliberations to which they obviously do not have access. Villar, 586 F.3d at 87. Contra maj. op. 124. For all these reasons, the Tammer protections do not always provide adequate safeguards of a defendant's right to an impartial jury.4
137 In my view, the trial court should have discretion in some circumstances to admit evidence of racially biased statements made during juror deliberations. As the Vil-lar court noted, the trial judge will often be in the best position to determine whether an inquiry is necessary to vindicate a defendant's Sixth Amendment right to an impartial jury. See 586 F.3d at 88; see also Kittle, 65 A.3d at 1155-56. Thus, the Villar court remanded that case to the trial court to decide whether the juror's report warranted further inquiry. 586 F.3d at 89.5
138 Should the trial court conclude that further inquiry is appropriate, it must then determine whether a juror was actually biased. If such a juror sat on the case, the defendant is entitled to a new trial without having to establish that the juror's bias affected the verdict. See Commonwealth v. McCowen, 458 Mass. 461, 939 N.E.2d 735, 765 (Mass.2010) ("Because actual juror bias affects the essential fairness of the trial, a defendant who has established a juror's actual bias is entitled to a new trial without needing to show that the juror's bias affected the jury's verdict."); of. People v. Dunoyair, 660 P.2d 890, 895-96 (Colo.1983) (implying that a defendant is presumptively prejudiced and entitled to a new trial if he or she establishes that a juror was actually biased). Only if the defendant fails to establish that a juror was actually biased must he show that the "statements so infected the deliberative process with racially or ethnically charged language or stereotypes that it prejudiced the defendant's right to have his guilt decided by an impartial jury on the evidence admitted at trial." McCowen, 939 N.E.2d at 765. Therefore, contrary to the People's argument, Pena-Rodriguez may be entitled to a new trial regardless of the effect of Juror H.C.'s comments on the verdict.
39 The majority admits that Tanner did not implicate "the exact issue of racial bias" but summarily concludes: "[Wle cannot discern a dividing line between different types of juror bias or misconduct." Maj. op. 1 23. *297I disagree. I would limit our holding in this case to post-verdict evidence of racial or ethnic bias that goes directly to the issue of the defendant's guilt. Racial bias differs from other forms of bias in that it compro- © mises institutional legitimacy. See Ashok Chandran, Color in the "Black Box": Addressing Racism in Jwror Deliberations, 5 Colum. J. Race & L. 28, 44-45, 47 (2015). A holding limited to such cireumstances would reflect and respond to a real-world threat to the integrity of the jury trial right. See Warger, — U.S. at — n.3, 135 S.Ct. at 529 n.3.
40 Furthermore, the majority overstates its concerns about the potential demise of the jury system should the allegations in this case be admissible in a motion for a new trial. The majority reasons that "the secrecy of jury deliberations is of paramount importance in our justice system," maj. op. 122, yet fails to acknowledge that jurors are free to discuss deliberations publicly. See Amanda R. Wolin, What Happens in the Jury Room Stays in the Jury Room ... But Should It?: A Conflict Between the Sixth Amendment and Federal Rule of Evidence 606(b), 60 UCLA L.Rev. 262, 294-95 (2012). Concerns about "post-verdict harassment of jurors," maj. op. 128, are similarly misplaced: 'Even commentators critical of allowing post-verdict evidence of juror bias have observed that the exception in Rule 606(b)(1) for extraneous information already creates an incentive for the losing party to contact jurors after a verdict has been rendered. See Lee Goldman, Post-Verdict Challenges to Racial Comments Made During Juror Deliberations, 61 Syracuse L.Rev. 1, 9-10 (2010). The majority's broader fear that the jury system may not survive absent unbending application of Rule 606(b), maj. op. 1 22,6 has proven groundless; the jury system has not collapsed in jurisdictions where trial courts have discretion, in rare cireumstances, to allow post-verdiet evidence of racial bias. Cf. Pena-Rodrigues, 1 128 (Taubman, J., dissenting) (observing that post-verdict evidence of racial bias has rarely surfaced in Colorado; thus, any exception to CRE 606(b) would be invoked only infrequently).
T 41 The policies of finality and juror privacy that underlie CRE 606(b) are well founded. Moreover, not every stray comment reflecting a racial stereotype warrants a hearing. However, this case presents the extreme exception contemplated in Warger. The multiple comments alleged to have been made in this case were heard by other jurors and were directly tied to the determination of the defendant's guilt. According to the two post-verdict affidavits, Juror H.C. expressed in various ways that Pena-Rodriguez "did it because he's Mexican." I simply cannot agree with the majority that "[plro-tecting the secrecy of jury deliberations" is of such "paramount importance in our justice system," maj. op. 122, that it must trump a defendant's opportunity to vindicate his fundamental constitutional right to an impartial jury untainted by the influence of racial bias. In my view, to foreclose consideration of the allegations presented here is precisely what "shatter[s] public confidence in the fundamental notion of trial by jury." Id. Accordingly, I respectfully dissent.
I am authorized to state that JUSTICE EID and JUSTICE HOOD join in this dissent. ,
. I note that the question before us is not whether there is sufficient evidence to impeach the jury's verdict. Rather, the question is simply whether the trial court has discretion to consider the allegations made in the post-verdict affidavits and to explore the validity of those allegations in an evidentiary hearing as part of a motion for a new trial.
. These protections include: (1) voir dire; (2) observations of the jury by the court, counsel, and court personnel during trial; (3) pre-verdict reports by jurors of inappropriate behavior; and (4) post-verdict evidence other than juror testimony. Tanner, 483 U.S. at 127, 107 S.Ct. 2739.
. In Tanner, a juror alleged in an interview following the trial that he "felt like ... the jury was on one big party'; that multiple jurors consumed large quantities of alcohol during recesses, smoked marijuana, and ingested cocaine; *296and that some jurors fell asleep or were high during trial. 483 U.S. at 115-16, 107 S.Ct. 2739.
. In Kittle, the court noted a split among federal courts of appeals on the question whether evidence of racial or ethnic bias should be admissible and concluded that Villar was more persuasive than conflicting decisions. See 65 A.3d ail 1153-54 & n.9 (comparing Villar, 586 F.3d at 85-87, United States v. Henley, 238 F.3d 1111, 1120 (9th Cir.2001), and Shillcutt v. Gagnon, 827 F.2d 1155, 1159 (7th Cir.1987), with Benally, 546 F.3d at 1237, and Williams v. Price, 343 F.3d 223, 225-35 (3d Cir.2003)).
. On remand, the trial court ultimately determined that the jury's verdict should stand, and that decision was upheld on appeal. See United States v. Villar, 411 Fed.Appx. 342, 342 (1st Cir.2011) (per curiam), cert. denied, — U.S. —, 131 S.Ct. 2167, 179 L.Ed.2d 947 (2011).
. The majority quotes McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915), for the proposition that permitting post-verdict evidence of impropriety during deliberations would undermine the jury system. Maj. op. {22. Yet the Supreme Court recognized in that case that "it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without violating the plainest principles of justice." McDonald, 238 U.S. at 268-69, 35 S.Ct. 783 (internal quotation marks omitted).