In ruling written before his death, SJC Chief Justice Gants tells judges to address jury deliberations ‘infected by racial or ethnic bias’

The late Supreme Judicial Court Chief Ralph D. Gants in Boston, Massachusetts on Oct. 20, 2015.Jessica Rinaldi/Globe Staff/file

In a decision written before his death, Supreme Judicial Court Chief Justice Ralph D. Gants passionately reaffirmed the duty of judges to ensure equal justice is provided to all defendants when there is a suggestion that racial bias among jurors may have led to a conviction.

In a unanimous ruling released Thursday, Gants and the six other members of the state’s highest court instructed judges to investigate whenever they are notified by a defense lawyer, a fellow juror, a prosecutor, or court officer that racial bias may have tainted jury deliberations.

"It is a fundamental tenet of our system of justice that a conviction cannot stand if the defendant proves that the jury’s deliberations were infected by racial or ethnic bias,'' Gants wrote. “This case concerns the obligation of a judge promptly to address an allegation of racial bias when it is presented. ... We conclude that the judge erred.”

The court unanimously ruled that Khamal McCalop can investigate whether racial bias led to his 2017 Suffolk Superior Court conviction for illegal gun possession and vacated his subsequent guilty plea to an armed career criminal enhancement because it was based on a potentially unconstitutional jury verdict.

"This was a nice reminder that racism is still alive and that is an evil that continues to harm us at every stage of the criminal justice system — from investigation, to arrest, to the trial and even the appeal process,'' said Christopher Lee Malcolm, McCalop’s defense attorney whose encounter with a crying juror led to the court’s ruling.

At issue was the prosecution of McCalop as an armed career criminal after jurors found him guilty of a number of gun charges. McCalop then faced a separate trial before Superior Court Judge Linda E. Giles.

As Malcolm was leaving court, two jurors — a deliberating juror and an alternate — approached him. The deliberating juror, who was crying, said the first vote was 6 to 6, but some jurors pushed for a conviction and bullied her when she asked to sleep on her decision. The guilty verdict was then unanimous.

"She also told defense counsel that she was surprised to see the amount of racism expressed and vocalized during the deliberations by several of the jurors who were voting to find the defendant guilty, and that she believed racism changed some of the jurors' votes to guilty,'' Gants wrote.

Malcolm presented the information to Giles, who admonished him, the decision stated.

"‘Good going . . . . You just upset this applecart,’ " Giles told Malcolm after he asked her to provide the names of jurors and contact information to investigate the juror’s claims, information that lawyers need court approval to obtain.

“I have grave doubts that you’re entitled to any kind of relief given what you said to me in this motion,'' Giles told Malcolm, citing the secrecy that cloaks juror deliberations from public scrutiny. “What the juror told you may not even be something that I can inquire about.”

Giles then arranged a plea deal that sentenced McCalop to 4 to 5 years in prison, with credit for 238 days time served, less than the mandatory five years he would have received. The agreement required him to drop his request to investigate the claim of racial bias among jurors, according to the ruling and court records. McCalop agreed to the plea.

Gants said Giles should have supported an effort to determine whether racial bias influenced the verdict.

“When defense counsel, in good faith, attests that a deliberating juror told counsel after the verdict that racist statements were made by one or more jurors ... the judge must give the defendant a fair opportunity” to contact the juror for information, Gants wrote. “The judge in this case erred in not promptly allowing that motion and in disparaging its merits.”

It was also wrong for the judge to appear to link her approval of the plea deal to McCalop’s forsaking his constitutional rights, the court ruled.

"A justice system that is committed to equal justice for persons of all races and ethnicities, and to the protection of a defendant’s fundamental right to a fair trial, cannot permit a plea to be conditioned on the waiver of such a claim, even if the waiver is part of a plea bargain,'' Gants wrote.

McCalop has since completed his prison sentence, his appellate attorney, Kathryn Karczewska Ohren, said Thursday. She said McCalop’s family welcomed the ruling.

"The court has done a great service here not just for them, not just for the McCalops, but for countless others who are seeking justice in our courts,'' she said, noting that Gants authored the decision. “Even as we mourn his passing, his voice speaks clearly here.”

Gants, who was 65 when he died on Sept. 14, was considered a powerful voice for racial justice during his years on the SJC and as a Superior Court judge earlier in his career.

The McCalop case started in 2015 when he was arrested by Boston police following a high-speed chase through the city.

Daniel F. Conley was the Suffolk district attorney at the time, but his successor, Rachael Rollins, wrote in court papers that Giles handled the case properly and that McCalop knew what he was doing when he agreed to the plea. However, Rollins would “welcome” an inquiry into racial bias among the McCalop jurors, her office said.