The Colorado Supreme Court will examine whether the Court of Appeals was correct to reverse a criminal conviction and order a new trial because a Hispanic man was blocked from serving on a jury seemingly because of his race.

The high court noted in its Monday announcement that it will evaluate whether the appellate panel was justified in determining the juror’s race was a “substantial motivating factor” in his dismissal from the trial, setting aside race-neutral explanations.

A Denver jury found Ray Ojeda guilty in 2015 of attempted first-degree murder, second-degree kidnapping and first-degree sexual assault. During jury selection, the prosecution attempted to excuse a juror identified as R.P. The man, who was Hispanic, appeared “biased” against the criminal justice system and, according to the prosecutor, “visibly showed hesitation” when questioned about his ability to be fair.

Elaborating on her position, the prosecutor referred to R.P.’s past work with communities of color, saying compared to “his commitment to his job, in terms of serving people of color and what he talked about in terms of the defendant being a person of color — he is himself a person of color — I thought that the totality of the record indicated that he has a distinctive leaning, that he himself said he would have trouble in listening to the evidence.”

Ojeda’s counsel objected, explaining that “I don’t know that it’s appropriate to exclude him because he’s Hispanic and may have something in common with the defendant in his heritage.”

District Judge Kenneth M. Laff denied the request to excuse R.P., saying he was “certainly entitled to believe that people of color are not well-served in our criminal justice or medical system.”

The prosecutor, who is unnamed, later tried to use a peremptory challenge to dismiss R.P., which typically is done without reason. When Ojeda’s lawyer again spoke up, the prosecutor once more referred to her perception that R.P. would be biased against the criminal justice system. Noting his well-spoken and persuasive demeanor, she added: “I think that he may then steer the jury towards a race-based reason why Mr. Ojeda, you know, was charged in the case.”

Over the defense’s continued objection that R.P.’s race was a factor in the dismissal, Laff found the prosecutor’s challenge to be sufficiently rooted in nonracial reasons and agreed to excuse R.P.

The U.S. Supreme Court in 1986 shot down race-based exclusions of jurors. In Batson v. Kentucky, a Black defendant was convicted by an all-white jury after prosecutors excused all Black potential jurors. The court, by 7-2, found it a violation of the Sixth Amendment’s right to have a jury drawn from a cross-section of the community and the Fourteenth Amendment’s guarantee of equal protection under the law.

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community,” wrote Justice Lewis F. Powell Jr.

Ojeda appealed and, in an unusual move, all three judges on the Court of Appeals panel issued their own opinions.

Writing for the majority, Judge Terry Fox stated that “it is impossible not to conclude that the strike at issue was substantially motivated by Juror R.P.’s race.” In agreeing that R.P.’s dismissal was improper, she explained that attributing “‘a distinctive leaning’ to Juror R.P., as this prosecutor did, because of his life experiences perpetuates the race-based stereotypes Batson eschewed.”

Fox added that other jurors who shared R.P.’s concerns about the years-old charges against Ojeda did not receive the same type of challenge. She also found it “curious” that the prosecutor was worried about R.P. being too convincing, but apparently asked other jurors if they would be able to sufficiently assert their points of view.

Ultimately, eight “Hispanic-surnamed people” were excused, resulting in only one Hispanic juror.

In a concurring opinion, Judge Elizabeth L. Harris doubted that the prosecutor even advanced non-racial reasons to excuse R.P., believing that “a discriminatory intent is ‘inherent’ in the prosecutor’s explanation, and therefore it does not qualify as race-neutral.” Although the trial court judge cited other reasons, which the prosecutor agreed to, for excusing R.P., Harris believed the linkage of R.P.’s race to his worldview was improper and obvious.

Then-Judge Robert D. Hawthorne dissented, believing the proper remedy was for the trial court to review the decision to strike R.P. under the three-part Batson test. The review entails determining whether there is a racially-motivated juror excusal, examining whether race-neutral reasons exist and then making a judgment of purposeful discrimination.

“Absent adequate findings, I don’t think we should stand in the trial court’s shoes and, relying on the cold record, say whether the prosecutor struck Juror R.P. because of his race,” Hawthorne wrote.

The case is People v. Ojeda.