The Colorado Court of Appeals reversed the convictions of a man accused of child sex abuse, citing an El Paso County judge’s decision not to dismiss a juror who admitted he could not be fair.

“We are left with Juror B’s unequivocal message that, if seated on the jury, he could not decide the case against Allen fairly,” wrote Judge Lino S. Lipinsky de Orlov for the three-member panel on Thursday. “The record thus establishes that the jury that convicted Allen included a juror who was incapable of rendering a verdict based on the law and evidence.”

Robert Allen received multiple charges of sexual abuse on a child by someone in a position of trust after the child’s mother told her that Allen had touched her genitals on multiple occasions. The charges reflected a total of four alleged assaults.

A jury convicted Allen for two of the assaults, finding them to be a pattern of abuse. They also agreed to a sentence enhancer for Allen because he unlawfully sexually penetrated the victim when she was under the age of 12.

Allen appealed on the grounds that the trial court should have allowed his dismissal of a juror for cause, namely that he could not render an impartial verdict.

During jury selection, Allen’s attorney asked if anyone “doesn’t feel like they would be a fair juror on [a] case like this?” Multiple people raised their hands, including a man identified as Juror B. Other prospective jurors received follow-up questions about their ability to be fair, but not Juror B.

The defense moved to dismiss Juror B because he had raised his hand. However, El Paso County District Court Judge Robert L. Lowrey responded, “He didn’t — his answer didn’t lead me [to believe] that he would be unfair. I will deny that challenge.”

Due process under the U.S. and Colorado constitutions guarantees the right to a fair trial with an impartial jury. Trial court judges are obligated to sustain challenges of jurors if they exhibit a bias against either of the parties, unless subsequent examination determines that the juror can be impartial.

“After reviewing the record of the entire voir dire, we conclude that none of Juror B’s previous statements during voir dire, either explicit or implicit, suggested that he could have ‘render[ed] an impartial verdict’,” wrote Lipinsky.

Elizabeth A. McClintock, Allen’s attorney, told the appeals panel that of the prospective jurors who raised their hands, “four of them were excused for cause by the court. One was not excused for cause…but she did not get to the point where she was even in the panel.”

The defense used their last challenge to excuse another person, Juror M, who “very clearly made statements he could not be fair in this case.” As such, Juror B stayed on the panel.

Both parties indicated that there was some responsibility to “rehabilitate” the juror by asking questions to re-establish whether he had an ability to be fair. However, the appellate judges found no justification for why Lowrey asked follow-up questions to three jurors about their impartiality, but not to Juror B or four others. 

The prosecution countered that Juror B stated nothing in his background had prejudiced him against either side and that he could evaluate the credibility of witnesses.

“People change their minds as they hear more information and as they hear exchanges between judges and prospective jurors,” said Judge Rebecca R. Freyre at the appellate hearing. “Why didn’t that last indication of an inability to be fair, why doesn’t that trump everything else that juror has previously said?”

McClintock added that a societal bias against child abusers could prejudice a juror, regardless of his past life experiences. Lipinsky agreed with that interpretation in the court’s opinion.

“At best,” he wrote, “Juror B said that nothing in his background would cause him to be biased against Allen. But not all prejudices arise from a person’s ‘background.’”

The court ordered a new trial. The case is People v. Allen.