Colo. Justices Struggle To Draw Lines On Jury Race Bias Rule

By Thy Vo | February 13, 2024, 10:59 PM EST ·

Colorado Supreme Court justices acknowledged Tuesday that current rules allow prosecutors to improperly strike people of color from juries for reasons linked to their race, but they grappled with whether they could revise the standard without going too far.

The justices heard oral arguments Tuesday in two criminal appeals, both involving Black defendants, in which prospective Black jurors were dismissed from service based on concerns that they had a bias against law enforcement.

Joseph Chase of Shulman Chase LLC told justices that a prosecutor was wrong to dismiss a woman, referred to as Juror 32, called to serve in Sterling Dwayne Austin's domestic violence trial. In that instance, the prosecutor cited the juror's alleged bias against the Denver Police Department after she talked at length about her personal efforts to reform the department's practice of misreporting people's race when issuing traffic tickets.

Juror 32 never said she had animus toward the department, and the prosecutor never asked her about that, Chase said. Her experiences with law enforcement are also inherently tied to her race, he added, arguing that the prosecutor could not show that the reason for the peremptory strike was "facially race-neutral."

Justice Carlos A. Samour Jr. asked Chase why the prosecutor could not reasonably interpret the juror's comments as showing a negative bias.

"The record here is fairly lengthy about why a D.A. [district attorney] would have concerns about this prospective juror," Justice Samour said.

"If the prosecution really believes that there's actual bias, they can ask that question," Chase responded.

Justice Monica M. Marquez said that argument seemed to require prosecutors to meet the standards to strike a juror for cause.

"You seem to be setting a standard that sets the bar at actual bias. In other words, you need to get enough on the record to lay down the grounds for a challenge for cause, and if you fall short of that, good luck," Justice Marquez said.

"I think there's a constitutional argument for exactly that," Chase said, arguing that the court should focus on preserving jurors' right to serve on a jury. "And so, yes, it does make it harder on the prosecution. But again, the prosecution doesn't have any constitutional rights."

"I thought both sides were entitled to a fair trial. Has the Constitution been amended?  Did I miss it?" Justice Samour responded.

"The prosecution's right to have a fair trial or have a fair shot at the prosecution cannot trump an individual's constitutional rights" to serve on a jury, Chase responded.

Tuesday's arguments come amid a broader debate over reforming so-called Batson challenges, which are named after a 1986 U.S. Supreme Court ruling that established peremptory challenges can't be used to dismiss jurors on the basis of race, ethnicity, sex or religion.

Colorado justices heard arguments last February on a proposed criminal rule change, modeled after a reform in Washington state, that proponents contend would reduce racial disparities among jurors. The rule would create several "presumptively invalid" reasons to strike a juror, such as a personal distrust in law enforcement.

Justices have said they plan to hear arguments in a number of criminal cases before weighing in on the proposal, including a September 2023 hearing where justices openly struggled with how to craft standards for parsing racial bias when it is not always explicit.

The two cases before the court on Tuesday concern the second step of Batson's three-part legal test. When a party challenges the striking of a juror as improperly biased, under the second step, the striking party only needs to provide "any race-neutral justification" for why they want to dismiss that juror.

The defendants are asking justices to affirm an October 2022 ruling by a state appellate panel that found a court was wrong to uphold a prosecutor's dismissal of a woman, known as Juror M, in the case of Raeje Resshaud Johnson. Juror M was sent home after she wrote on a questionnaire, "Many cases where cops are disrespectful due to certain racial identities."

The panel noted that no one asked Juror M questions about her response and said her dismissal did not pass the step two test. Race-based discriminatory intent was also "inherent in the prosecutor's explanation," the panel said, holding that trial courts must apply a "per se approach" to Batson challenges when a prosecutor offers both race-based and race-neutral explanations for a strike.

On Tuesday, John T. Lee of the Colorado Attorney General's Office argued that the appellate court ruling should be thrown out. The defendants are asking justices to consider factors such as plausibility or persuasiveness that should be left for the third step of the test, Lee said.

Justice Richard L. Gabriel pressed Lee to explain why Juror M's dismissal passes muster under step two, noting the lack of any follow-up on the woman's questionnaire response. Many Black Americans and people of color also have negative experiences with law enforcement, Justice Gabriel said.

"I daresay a large percentage of the people of color in this country know of someone or have had this experience. And we've just seen that it's an automatic, race-neutral strike for most people of color for most of our juries," Justice Gabriel said. "How was it race-neutral, when you have nothing other than 'I'm familiar with people who have had this bad experience,' which most people could say?"

The prosecutor made a 'reasonable inference' that Juror M had a bias toward law enforcement based on her own words, Lee said, arguing that the reason for striking a potential juror must be "reasonably related" to their comments and not based on an assumption or stereotype.

The state also is not advocating for a bright-line rule, Lee said, arguing that the court should continue to look for "discriminatory intent inherent in the prosecutor's explanation" for a strike.

Justice Samour also questioned whether the real problem is peremptory challenges in the first place. In response to similar concerns, Arizona's Supreme Court in 2022 eliminated peremptory challenges in all jury trials.

"If we really care about the goal of Batson, doing it through peremptory challenges, and doing it the way that the system is set up now, really seems unworkable, doesn't it?" Justice Samour said.

Lee agreed, noting that Colorado lawmakers have enshrined peremptory challenges in state law.

"Those are policy decisions that I would submit are best left for the legislature," Lee said.

The defendants, meanwhile, said overturning the appellate decision would make Batson's second step toothless.

After the hearing, Chase said the court needs to adopt a higher evidentiary standard if it wants to root out implicit racial bias. He also urged the court to send a strong message to lawmakers.

"I hope the justices err on the side of protecting the constitutional rights of defendants and the juror," Chase said.

A representative for the state declined to comment. Counsel for Johnson did not immediately return a request for comment.

The state is represented by Colorado Attorney General Philip J. Weiser and John T. Lee, Jaycey Dehoyos and Joshua J. Luna of the Attorney General's Office.

Johnson is represented by Tanja Heggins of The Law Firm of Tanja Heggins PC.

Austin is represented by Joseph Chase of Shulman Chase LLC.

The cases are People v. Raeaje Resshaud Johnson, case number 2022SC852, and People v. Sterling Dwayne Austin, case number 2023SC75, in the Colorado Supreme Court.

--Editing by Peter Rozovsky.

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