Even if a Colorado judge had committed disability discrimination when he dismissed four hearing-impaired people from a jury pool, the federal appeals court based in Denver declined to overturn the defendant’s conviction, saying his lawyer handled the situation reasonably at trial.

A three-member panel of the U.S. Court of Appeals for the 10th Circuit on Friday agreed the Americans with Disabilities Act extends to court proceedings, and the exclusion of jurors with disabilities violates a defendant’s rights. The Colorado Supreme Court in 1999 even recognized that automatic exclusion of jurors with hearing problems violates the law.

But a defense lawyer’s failure to claim specific legal violations at the time of trial did not amount to inadequate representation, the panel determined. Nor was there proof that excluding disabled jurors resulted in a biased outcome.

“This case presents a prime example of how discrimination in jury selection can still result in a fair trial,” wrote Chief Judge Timothy M. Tymkovich in the May 7 opinion. 

A jury convicted Kennith Meadows in 2008 of three sex offenses involving a minor relative. The trial took place in Jackson County in northwest Colorado, which has approximately 1,400 residents and only one municipality. During jury selection, several members of the jury pool had difficult hearing lawyers’ questions. Then-Judge Richard P. Doucette dismissed two jurors partly or wholly for that reason, prompting Meadows’s public defender to ask if the courthouse had amplification equipment.

“Remember where you are,” Doucette replied. “We do not have that here. I’m sure they do down in Fort Collins, but we don’t have it available, and I’m not sure I can get it here in a reasonable time.”

Fort Collins, two hours away in Larimer County, is part of the same judicial district as Jackson County. After Doucette dismissed a third juror for hearing problems, the defense lodged an objection.

“I think we have the obligation to provide these folks the necessary equipment so that they can serve as jurors if needed,” the attorney insisted. The judge indicated he understood, but reiterated the equipment could not get to Jackson County in a reasonable time.

Doucette continued to excuse additional jurors over the defense’s objection. One man even said he “had my hearing aid turned up, and I can hear about 50 percent of what you say and absolutely nothing that the counsels have to say.” Finally, the prosecutor offered to have one of her witnesses pick up the equipment in Fort Collins.

“Yeah, that would be fine, especially for tomorrow,” Doucette responded, while indicating he was unsure the amplification devices would actually solve the problem. He continued, “there is an obligation to assist, but at what point do you say, okay. I’ve been speaking as loud as I can and he’s within about 4 feet of me and says he can’t hear, and I don’t think there’s any equipment that [is] going to fix that.”

The assistive equipment never arrived by the end of jury selection, and in total the judge dismissed four people solely for their hearing troubles. Meadows first appealed his case at the state level to no avail. He then turned to the federal courts, alleging the failure to accommodate hearing-impaired jurors violated the Americans with Disabilities Act and his constitutional right to have a jury drawn from a fair cross-section of the community.

“If there’s discrimination in jury selection, that should be considered fundamentally unfair in every case,” Meredith Esser, Meadows’s attorney on appeal, told the 10th Circuit judges during oral argument.

Meadows also claimed his trial counsel provided him ineffective assistance by failing to articulate a legal argument against excusing the jurors.

In 2019, U.S. District Court Judge R. Brooke Jackson affirmed it was inconsistent with the Americans with Disabilities Act to automatically dismiss people from a jury because of their hearing problems. The landmark 1990 civil rights law bars the exclusion of people from public services, programs or accommodations on account of their disability.

“Thus, the Court agrees with Mr. Meadows that competent counsel in 2008 would have been aware of the applicability of the ADA and a defendant’s due process right to a fair trial and a jury selected by means that are neither arbitrary nor discriminatory,” he wrote.

However, Jackson found the defense lawyer was aware of the problem at the time, and his handling of the situation was reasonable.

Upon review, the 10th Circuit panel upheld Jackson’s findings. The panel, Tymkovich wrote, should not second-guess the defense lawyer’s strategy. In that vein, the attorney may have had valid reasons for declining to ask for a halt in the trial or for pushing the court harder to accommodate the hearing-impaired people, including a desire to get along with the judge.

“Meadows’s attorney may have concluded that assistive equipment may not solve the problem in the first place, at the cost of delaying the trial and inconveniencing the other potential jurors. He may have wanted to maintain his rapport with the court,” Tymkovich explained.

Although Meadows could not prove the exclusion of the hearing-impaired jurors resulted in a bias against him, he asserted their dismissal was a structural error – a fundamental unfairness in the framework of the trial itself. The 10th Circuit panel instead recognized the unfairness baked into the trial at jury selection may have nonetheless led to a fair outcome for Meadows.

“The remaining jury pool may be completely unbiased and fair to the defendant, so that he still receives a fair trial despite the arbitrary or discriminatory exclusion of certain jurors,” wrote Tymkovich.

The case is Meadows v. Lind.