Because a Garfield County judge allowed a juror to serve despite her repeated acknowledgements she could not be impartial, a defendant convicted of sexually assaulting a child will receive a new trial, the Court of Appeals ruled on Thursday.

Fernando Zamora-Mendoza of Parachute allegedly molested two girls ages four and five. A jury in 2018 found him guilty of assaulting just one of them, and he received a prison sentence. Zamora-Mendoza appealed his conviction, claiming the trial court judge, Denise K. Lynch, improperly denied his attempt to excuse one juror for bias.

On her questionnaire, the woman identified only as Juror A disclosed that she knew of two family members who were victims of rape, but that she could still be an impartial juror. Lynch expressed surprise at those responses and asked Juror A to elaborate.

“The actual answer to that question on the survey is I don’t know,” Juror A told the judge. “You know, I would probably be more inclined to believe a victim just because of what happened to my sister and my cousin and myself. I’ve been the victim of sexual harassment in high school … I’d objectively like to say that I believe I know the burden of proof is on the Prosecution, but you know, what I would really do with the information, I really don’t know.”

The prosecutor then followed up, prompting Juror A to say that prior to hearing any evidence, she was already disposed to believing the victim’s story.

“And what if one victim came in and said that the sky was red that day it happened, and then 17 other witnesses came in and said the sky was blue? Are you still going to believe the victim?” the prosecutor asked.

“Well, sure,” Juror A responded. “I mean, the victim, presumably, if the story is true, has been under trauma, and you know, the memory does strange things in traumatic situations. So I would not be disinclined to believe the sky was red in the victim’s memory.”

If Juror A was in the prosecutor’s shoes, the lawyer asked, “would I want you on this jury?”

“Probably,” she answered.

Juror A continued to state under questioning that she would find it “very difficult personally” to remain impartial. Mendoza-Zamora’s attorney sought to dismiss her based on her answers, but Lynch denied the challenge.

“She didn’t say the magic words yet,” Lynch said during her ruling.

Both the U.S. and Colorado constitutions guarantee a criminal defendant the right to a fair trial, a key component of which is an impartial jury that will decide the case on the evidence presented. The Colorado Supreme Court has ruled that letting a juror who is actually or presumed to be biased serve on a jury is an error meriting reversal of a conviction.

Although a juror may doubt their ability to be impartial, a process called rehabilitation enables the person to rethink their biases under questioning and still serve.

A three-judge panel for the Court of Appeals found there was no rehabilitation of Juror A prior to her actual service on the jury. Consequently, it reversed Mendoza-Zamora’s conviction and ordered a new trial. Judge Matthew D. Grove, writing for the panel, was puzzled about how Lynch handled the defense’s challenge to Juror A, given the woman’s numerous statements about her struggle to decide the case fairly.

“It is unclear what those ‘magic words’ might have been, as the trial court did not explain this statement,” Grove wrote in the August 19 opinion. “But when a prospective juror cannot commit to being impartial, a challenge for cause should be granted.”

Zamora-Mendoza also challenged his conviction on other grounds, but the appellate panel did not find any similar error affecting the fairness of the trial.

The case is People v. Zamora-Mendoza.