Elected prosecutors strenuously opposed and defense attorneys vigorously supported proposed legislation to address implicit bias in jury selection, prompting the Senate Judiciary Committee on Wednesday to postpone action and search for a middle ground.

Proponents of Senate Bill 128 hope to join the handful of states whose legislatures or highest courts have enacted procedures making it harder for attorneys, particularly prosecutors, to dismiss prospective jurors based on reasons that are correlated with race but are not explicitly racial.

The U.S. Supreme Court, in the 1986 decision of Batson v. Kentucky, deemed explicit racial discrimination in jury selection to be unconstitutional. Protections also now apply to ethnicity, gender and – in some states – sexual orientation. But in the wake of Batson, the judicial process set up to evaluate whether juror dismissals amount to intentional race discrimination does not fully capture more subtle or even unconscious racial motivations, the bill’s supporters say.

“In the 36 years since Batson was announced, minority jurors have continued to be excluded from service on juries because judges accept ‘race-neutral reasons,’ such as a juror’s hairstyle, body language, skepticism about whether police treat people fairly, failing to laugh at lawyers’ jokes and other explanations,” said Sen. Pete Lee, D-Colorado Springs, who is one of SB 128’s sponsors.

SB 128 would govern juror dismissals made using the legal maneuver of peremptory strikes. In contrast to dismissals of jurors for cause, lawyers do not need to give a reason when using a peremptory strike to excuse a juror. If one party raises a “Batson challenge” to a dismissal, the other party must offer non-racial reasons for seeking to excuse the juror in question. The judge then has to rule on whether purposeful racial discrimination is behind the strike.

Under the proposed legislation, there would be several rationales considered as invalid by default for excusing a juror. Those include expressing distrust of law enforcement officers or opining that police engage in racial profiling, speaking English as a second language, and even having a child outside of marriage.

“Unrepresentative juries occur because communities of color are often unfairly excluded or marginalized because of their race,” testified public defender Joyce Akhahenda. “It reinforces that this is not ‘our’ system. How long are people of color supposed to wait to have their lived experiences accepted as part of the community?”

A bipartisan group of elected district attorneys and their representatives also appeared before the committee and conveyed the opposition of all 22 Colorado district attorneys to the bill as written. Among their objections is that the bill would require judges, in determining whether race was a factor in a juror strike, to consider the number and type of questions asked to the juror.

“We want to get thorough answers” from jurors, said District Attorney Gordon McLaughlin, who represents Larimer and Jackson counties.

John Kellner, district attorney for the 18th Judicial District of Arapahoe, Douglas, Elbert and Lincoln counties, focused on SB 128’s labeling of distrust of law enforcement as a presumptively invalid reason for a juror strike.

“Let’s flip this entirely. What if it’s a juror that says, ‘I do trust the justice system. I do trust law enforcement’,” he said. “It’s presumptively invalid for you to use a peremptory challenge on someone who says I don’t trust law enforcement, but it’s A-OK for somebody who walks into that courtroom to say, ‘I trust in this process, I’m proud to be here’ – a peremptory challenge can be used against them without any consequence.”

The Supreme Court of Washington was the first to adopt a rule in 2018 expanding Batson protections aimed at reducing implicit bias-related juror dismissals. California enacted a similar measure legislatively in 2020.

SB 128 resembles a Washington-style rule change the Colorado Supreme Court considered and rejected last year. A rules committee voted narrowly to approve the overhaul to the Batson process, but the justices indicated they wanted a broader consensus before acting.

Since then, the court released a rare decision involving a Batson challenge, finding earlier in February that a Denver prosecutor failed to offer nonracial reasons for dismissing a Hispanic juror from the trial of a Hispanic defendant. Moreover, the court found the trial court judge mistakenly injected his own rationale for dismissing the juror instead of focusing strictly on the justifications put forward by the prosecutor.

SB 128 would codify the court’s holding in People v. Ojeda that trial judges must rely only on the explanations they are given for excusing a juror of color.

Aya Gruber, a professor of constitutional law and criminal justice at the University of Colorado Law School, noted after the Ojeda decision that the excused juror had expressed lower levels of approval for the criminal justice system and a belief in racial profiling – both of which, under SB 128, would be presumptively invalid reasons for dismissal. 

“A healthy jury system should have a diverse mix of people with a range of views about the system,” she said. “Being skeptical about the system makes you no less likely to follow the law and appreciate the facts than being a blind believer in the system.”

By shifting the burden from proving intentional racial discrimination to asking whether an “objective observer” could consider race to be factor in a juror’s excusal, proponents of SB 128 believe the legislation would relieve judges of the uncomfortable burden of concluding a specific attorney held discriminatory motivations.

“Right now a court, if it’s gonna grant a Batson objection, has to look a lawyer in the eye and say, ‘All of those race-neutral reasons you gave were pretext to disguise that you acted with intent to discriminate when you asked to excuse a juror’,” testified defense attorney Ann Roan.

Some prosecutors before the Senate Judiciary Committee expressed a belief that the Supreme Court’s rules committee is the appropriate venue for Batson-related changes, and that the proposed bill runs the risk of creating juries biased against crime victims.

Others emphasized the estimated cost of SB 128: over $1 million per year, largely for increased court personnel and lengthened trials to accommodate Batson objections.

However, Dennis Maes, the former chief judge of Pueblo County, told Colorado Politics that in his 24 years on the bench, he could not recall a Batson challenge being made during jury selection. He believes the Supreme Court gave judges appropriate guidance in Ojeda, and that SB 128’s list of presumptively invalid reasons would never be all-inclusive.

“Trying to identify every instance where there is a presumption that it’s a challenge based on race seems to me to be an endless pit,” he said.

A spokesperson for the Colorado Judicial Department declined to offer any comment from the state judicial branch on the legislation.

Lee, one of the Senate sponsors, asked prosecutors how they would propose to address racial discrimination, if not through SB 128. Several agreed that training on implicit bias is important.

“Really, what you’re trying to get at is an educational deficit,” said Amanda Gall, representing the district attorney for Jefferson and Gilpin counties, Alexis King. “I think something that’s directed at that would be more effective in achieving our goal.”

Sen. Julie Gonzales, D-Denver, the other Senate sponsor of the bill, requested the committee postpone action so proponents could evaluate possible revisions to SB 128.