The Court of Appeals determined an El Paso County prosecutor did not violate the prohibition on race-based dismissals of jurors by removing a Black woman from the jury pool because she had a “sour look.”

The decision implicates a 35-year old judicial test for bias that critics say is too easy to evade and fails to account for the unconscious motivations of attorneys.

Calil Jamari Witherspoon appealed his 2019 convictions for attempted first degree assault, menacing and prohibited use of a weapon by arguing that the trial court judge improperly denied his challenge to the dismissal of a Black woman from his jury. Known as a “Batson challenge,” the legal objection stems from the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, which forbade intentional race-based discrimination in jury selection.

But on Thursday, a three-judge panel for the state’s appellate court concluded that District Court Judge Jill Brady had not committed an error by deciding the prosecutor had offered sufficient non-racial reasons for striking the woman identified as T.D. from the jury.

At Witherspoon’s trial, the unnamed prosecutor used one of her peremptory strikes – which allow for the dismissal of a juror without an explanation – to excuse T.D. The defense raised a Batson challenge, noting her race and arguing the prosecutor had not even asked T.D. any questions.

The prosecutor responded that T.D. “wrote in her questionnaire that she was upset about the wait to get into the courthouse and the secondhand smoke and that it was cold. Her whole demeanor all day looks like we’ve been putting her out, sour look on her face.”

The prosecutor then acknowledged that T.D. had cracked a joke when the defense attorney asked what her definition of a child was (“My opinion of a child is once he can’t be on my income tax, they are not a child.”). But otherwise, the prosecutor continued, “she looked like she was not happy to be here.”

When one of the parties makes a Batson challenge, they must state a plausible claim that a juror is being struck because of their race. The party seeking to excuse the juror must offer a race-neutral reason for doing so, and the judge then weighs the evidence and decides whether the strike likely involves purposeful discrimination.

But critics of the Batson process point out that attorneys can outmaneuver the racial prohibition by simply providing alternate explanations, or by citing characteristics of jurors that are not explicitly racial, but reflect implicit biases. For example, excusing jurors who have an arrest record is more likely to affect people of color.

The state of Washington adopted a rule change in 2018 recognizing the historical justifications used to strike jurors of color, including their status as a non-native English speaker, their views on policing and their demeanor. Those factors are now presumed to be invalid in the face of a Batson challenge.

The Colorado Supreme Court had the opportunity to adopt a similar rule this year, but turned down the proposal. In a report to the Court from a majority of members of a committee on the rules of criminal procedure, there was an awareness that excusing a juror based on her demeanor can be problematic.

In response to the prosecutor’s observation that T.D. was “not happy to be here,” the defense attorney said T.D. had been listening and paying attention, and had indicated she would hold the prosecution to its burden of proving the defendant guilty.

Brady denied the Batson challenge. Without stating whether she agreed with the prosecutor’s characterization of T.D.’s demeanor, she found the explanation credible. The prosecutor had offered a race-neutral reason for striking T.D., Brady elaborated, based on T.D.’s “sour attitude toward the system or process earlier in her jury questionnaire by indicating that she didn’t like having to wait in line or the smell of secondhand smoke, and [being] disengaged from the process and that’s why she struck her, not on the basis of race.”

The defense attorney later stated that the prosecutor could have been basing her assumptions on unconscious racial stereotypes. 

The Court of Appeals panel acknowledged that it would have been better for Brady to have documented her own conclusions about T.D.’s demeanor during jury selection. But overall, the panel found no reason to doubt her decision.

“[T]he trial court did expressly find that the prosecutor’s stated reasons for exercising the peremptory challenge were credible,” wrote Judge John Daniel Dailey, who also is the chair of the committee that suggested the rule change. “We have no basis to question that credibility determination.”

Ann Roan, a criminal defense attorney, believed Witherspoon’s case illustrated the fallacy of relying on an attorney’s perception of a juror’s demeanor to explain away potential racial motivations.

“The defense counsel made it clear this was not what that lawyer had observed. And the judge never made a record that the judge independently observed and corroborated what the prosecutor claimed to have seen,” she said.

Research has documented the various ways in which Black people are subject to misperception. A 2019 paper described how non-Black research participants had a harder time distinguishing between genuine and fake smiles on Black faces than white faces. Subjects in a 2017 study categorized young Black men as larger and more physically threatening than white men based on images. And a 2009 analysis found several studies showing interracial interactions cause “anxiety, fear, and sometimes even anger.“

In addition to a Washington-style rule change, others have suggested eliminating peremptory challenges entirely or implementing implicit bias training for lawyers as a more effective means of combating racial discrimination in jury selection than the current Batson standard.

Last month, the state Supreme Court heard oral arguments in the case of a Batson challenge involving a Hispanic defendant in Denver. A Court of Appeals panel found the prosecutor did not offer sufficient race-neutral explanations for striking a Hispanic juror and ordered a new trial. However, in that case, in contrast to Witherspoon’s, the prosecutor actually mentioned the juror’s race in explaining her actions.

The case is People v. Witherspoon.