According to Breitbart, the defense team for Christhian Bahena-Rivera, the Mexican illegal alien accused of murdering Mollie Tibbetts, has moved for a change of venue. Bahena-Rivera’s attorneys claim that he cannot receive a fair trial in Powesheik County, Iowa, because of “negative perceptions of Hispanic community in the area.” The clear implication is that residents of the region are racist and, therefore, more likely to convict Bahena-Rivera on the basis of his race – as opposed to evidence presented by the prosecution.
Sadly, this is an all too common tactic in major criminal cases. It is based on an over-reading of the right to be tried by a jury of one’s peers. Motivated largely by suspect ideologies such as “critical race theory” and “critical legal studies,” activist defense attorneys have begun taking the term “peers” literally.
The standard argument is that a minority defendant cannot be fairly tried by a jury that isn’t composed of people who share the defendant’s race, ethnicity and gender. This is because minority jury members will understand the circumstances and world view of the defendant, whereas a jury of Powesheik County residents allegedly won’t be able to see beyond stereotypes about race, ethnicity or gender.
That’s a woefully flawed idea, for several important reasons:
- It’s legally inaccurate. The notion of being tried by a jury of one’s peers flows from the British Magna Carta, which includes a provision ensuring that juries trying nobles would be composed of other nobles. In that context, the term “peer” refers to individuals who belonged to a particular order of the English nobility. In modern legal usage, it simply means members of the local community. If it did not, how could an immigrant from a tiny country like the Republic of Vanuatu ever be tried for a crime in the U.S.?
- American juries are responsible for hearing the evidence presented by each side and determining what facts are established by that evidence. But facts don’t change according to one’s race or ethnicity. Perpetuating the notion that they do, injects identity politics into the application of the law, which should be an apolitical process.
- The claim that America’s criminal-justice system is racist simply isn’t supported by the evidence. In fact, in the United States, illegal aliens on trial for crimes – whatever their ethnicity – are subjected to exactly the same legal process as citizens:
- As the Supreme Court opined in Yick Wo v. Hopkins, “The guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, of color, or of nationality.”
- It followed up that holding with Wing Wong v. United States, which specifically addressed the issue of foreigners on trial for crimes. It stated “…even aliens shall not be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.”
Christhian Bahena-Rivera is entitled to a fair trial. He’s also entitled to whatever other process he is due under our Constitution. But his continuous assertions that he has somehow become a victim of racial bias are profoundly offensive. One suspects that he’ll get a fairer trial as an illegal alien in American court than he would as a Mexican citizen before a tribunal in Mexico. The World Justice Project’s Rule of Law Index 2019 rated Mexico 99 out of 126 countries, just ahead of such beacons of justice as Myanmar (110) and Venezuela (126).