A judge was not required to ask jurors about their racial prejudices or their reactions to then-President Donald Trump’s derogatory comments about African and Caribbean countries during a criminal trial in which three of the four defendants were Black immigrants, the federal appeals court based in Denver ruled on Tuesday.
During the January 2020 trial on immigration-related conspiracy charges, defense lawyers pointed out that their clients were racial minorities and argued in favor of asking potential jurors about their explicit or implicit racial biases. The U.S. Supreme Court previously determined that such questions are required when racial issues are “inextricably” implicated in the subject matter of a trial.
But in the case of defendants Galima Murry, Diann Ramcharan and Rajesh Ramcharan, the trial judge rebuffed the request to ask jurors two particular questions about race. One question would have reminded jurors about Trump’s comments during an Oval Office meeting, in which he labeled certain parts of the globe, notably Haiti and El Salvador, as “shithole countries.”
“What do you think about that statement?” the proposed question read.
A three-judge panel for the U.S. Court of Appeals for the 10th Circuit determined the race-based questions were unnecessary, given its view that racial or ethnic prejudices did not likely affect the jury.
“Defendants committed crimes by marrying to evade immigration laws, making false statements to government officials, and conspiring to commit marriage fraud,” wrote Judge Joel M. Carson III in the April 19 opinion. “That immigration sometimes implicates race or ethnicity does not make all immigration cases inextricably bound up with race.”
Carson, a Trump appointee, heard the case with two other nominees of Republican presidents.
The criminal case involved the Ramcharans, who were a married couple from Trinidad and Tobago, and Murry, a U.S. Army staff sergeant originally from Liberia. The government charged and a jury convicted them of a scheme in which the Ramcharans, who lived in Colorado Springs, fraudulently remarried legal residents to remain in the country.
Ken Harvell, a white pastor, facilitated the marriages. Murry, who married Diann Ramcharan, reportedly was motivated by the additional financial benefits he would receive from the military through his union. The sentences for the defendants ranged from eight months in prison for Murry to four months for Diann Ramcharan and three months for Rajesh Ramcharan. Harvell was ordered onto probation and home confinement.
Although the defendants raised several claims on appeal, the main contention revolved around how Senior Judge David M. Ebel, who is a member of the 10th Circuit but served as the trial judge in the case, handled voir dire — the part of the trial where questions are posed to jurors to gauge their suitability for the case.
Typically, lawyers for the parties may speak with jurors directly, but federal procedure allows for the judge to conduct the entirety of voir dire with some input from the parties. Ebel chose that method and after the first day, the attorney for Rajesh Ramcharan complained that Ebel’s questioning failed to adequately determine whether jurors could be impartial.
“As Your Honor can see, my client is Black,” said Assistant Federal Public Defender Jennifer Beck. “He comes across as a Black man living in America. I mean, I think most people would see him that way. And with regard to Mr. Murry, he’s also a Black man living in America. Ms. Ramcharan is of darker color. I mean, they’re all minorities.”
She went on to explain that jurors may not realize they have racial bias until the right questions are posed. In addition to asking about Trump’s comments, Beck also wanted Ebel to inquire whether the race or ethnicity of an immigrant affected jurors’ views. The attorney for Diann Ramcharan agreed that more specific questions were necessary, finding it “hard to believe” that no jurors had strong opinions about immigration.
The prosecution opposed specific questions about race, saying it “injects something that is not actually there” into jurors’ minds.
Ebel agreed, defending his work at trying to assemble a fair jury panel.
“The best way to detect biases and prejudices,” he said, is “don’t ask them, ‘Are you biased and prejudiced?’ Because you know what the answer is going to (be).”
On appeal to the 10th Circuit, lawyers for the defendants argued it was unreasonable for Ebel to refuse to ask explicitly about racial views given how race discrimination remains pervasive, including on issues of immigration and marriage.
“I’m 52 years old and I’ve practiced in Enid, Okla., my hometown,” said James L. Hankins, representing Diann Ramcharan. “When (his father) was a kid, he remembers seeing ‘white-only’ and ‘colored-only’ water fountains in the courthouse … and he’s alive today. He didn’t have to read about that in textbooks.”
“Mr. Hankins, the judge in this case went to the high school that was desegregated under Brown v. Board of Education,” interrupted Judge Harris L Hartz, referring to Ebel’s childhood in Topeka, Kan. “Don’t waste your time. We all know the awful history involved.”
Central to the defense’s argument was a 1981 Supreme Court decision also involving a conspiracy to evade immigration laws. A majority of the court decided that judges must inquire about racial views specifically when the defendant is accused of a violent crime and where the defendant and the victim are of different races.
Otherwise, wrote Justice Byron R. White of Colorado, the question is whether the “total circumstances suggest a reasonable possibility that racial or ethnic prejudice will affect the jury.”
The 10th Circuit’s panel indicated during oral arguments that it was not sufficient for the defendants to simply argue the racial atmosphere in the United States during the Trump administration was grounds for delving into jurors’ views.
“I want to know if you know of other cases where there was a president in the background who was saying things that were racially motivated, and that there was general animosity toward minorities in the courts, and some court said yes, those things — or something like that — are enough,” said Carson, the Trump appointee.
Hartz defended Ebel’s handling of voir dire, explaining that Ebel did not appear insensitive to the reality of race in America but simply believed it unlikely that a juror would admit to having a racial bias against the defendants.
“It’s not considered awful for people to say they’re against the military. People will say that all the time and you don’t get canceled for doing that,” Hartz said. “You do get canceled for saying you’re a racist.”
Ann Roan, a criminal defense attorney in Colorado, said the case before the 10th Circuit calls into question the Supreme Court’s 40-year-old conclusion that inquiries about racial bias are automatically appropriate only in a narrow subset of trials — violent crimes involving parties of different races — and conditional for all other situations.
“Given what we know about the disproportionate impact every step of criminal proceedings has on people of color, I think it is time to re-evaluate the propriety of only allowing jurors to be asked about their views on race in certain cases,” she said.
One of the appellate attorneys, Jonathan S. Willett, told Colorado Politics that he believed the 10th Circuit wrongly decided the case and would seek another review by the appeals court, and possibly the Supreme Court.
The case is United States v. Murry et al.