A fractured Court of Appeals has upheld the kidnapping and sexual assault convictions of a man in Gilpin County, with sharp disagreement among the judges about the role racial bias played in his jury selection.

Reginald Keith Clark, who is Black, is serving a 30-year sentence for bringing a white woman against her will from Denver to the mountains near Black Hawk and assaulting her. One man in the jury pool, identified as Juror K, volunteered that he moved to Gilpin County, which is 94% white, because he “didn’t want diversity” and “I can’t change that.”

In an unusual move, the three members of the appellate court who heard Clark’s appeal each issued their own opinion. Judge Terry Fox believed the trial judge was wrong to not dismiss Juror K for cause, but she agreed to uphold Clark’s convictions. Judge John Daniel Dailey felt neither the trial judge was wrong nor that Clark deserved a new trial.

Only Judge Timothy J. Schutz wrote that the trial judge should have dismissed Juror K and that the failure to do required reversal of Clark’s convictions.

The presence of racial bias in jury selection has garnered attention in recent weeks, as the Colorado Supreme Court last month issued a rare decision finding purposeful race discrimination in a Denver prosecutor’s dismissal of a Hispanic man from a Hispanic defendant’s jury. State lawmakers are also asking the Supreme Court to adopt a rule to address implicit racial bias, after a bill intended to curb the exclusion of jurors of color faltered in the face of opposition by prosecutors.

Amid that focus on non-white people being dismissed from juries because of their race, Clark encountered the flip scenario: an apparently white juror remaining in the jury pool despite his admission of racial bias.

“The trial court refused to dismiss a prospective juror who volunteered that he harbored racial bias against Mr. Clark and that, in effect, he’d moved to Gilpin County to get away from nonwhites,” public defender Casey Mark Klekas argued to the Court of Appeals panel.

At the beginning of Clark’s 2018 trial, his defense attorney noted that Clark was the only Black person in the courtroom. After one juror voiced comments about diversity, Juror K spoke on the subject.

“Yes, it’s obvious there’s a Black gentleman over there,” he said. “This is Gilpin County. I moved to Gilpin County. I didn’t want diversity.”

Juror K continued: “I hear the things, that diversity makes us stronger and things like that. I don’t quite believe it in life from what my personal experiences are. And I can’t change that. I can look and judge what is being said by your side (defense) and their side (prosecution) and be fair, but I can’t change that – when I walked in here seeing a Black gentleman.”

Then-Judge Dennis J. Hall took Juror K aside and asked if he would be capable of finding Clark not guilty if the prosecution had failed to prove its case. Juror K said he would, and likewise would convict Clark if prosecutors had proven him guilty.

Hall then denied the defense’s request to dismiss Juror K for cause. About Juror K’s comments on diversity, Hall said, “that’s a political view, I think. That doesn’t really answer the question of whether he can be a fair juror. … I didn’t see any bias.”

The defense ultimately used a peremptory challenge, which does not require a reason, to excuse Juror K from serving on the jury.

Klekas argued to the panel on appeal that Juror K was not making comments about diversity in the context of a “political view,” but to communicate simply that he had sought out a white community to live in.

“I think that was as polite of a way as a juror could volunteer that he harbored racial bias and might not be right for this case,” Klekas said.

Dailey asked Assistant Attorney General Patrick A. Withers, arguing for the government, whether he agreed Juror K’s comments were a clear expression of racism.

“Well, Your Honor,” Withers began.

“No, no, no. Not ‘well’,” interrupted Dailey. “Yes or no?”

“Yes, I believe that there is a racial bias there,” Withers conceded. “What he said, to me, is basically, ‘I’m tired of hearing about diversity training. I’m tired of hearing about diversity. I don’t wanna live next to Black people.’ … The state does not endorse that, but simply not wanting to live next to someone does not necessarily mean they can be biased against them.”

The Court of Appeals panel took away divergent impressions of what happened. Fox believed that Hall should have dismissed Juror K for cause, given that Juror K never said he would put aside his racial bias.

Juror K “volunteered that he moved to Gilpin County because he ‘didn’t want diversity’ – the obvious inference being that he moved to Gilpin County to distance himself from nonwhite people,” she wrote. “Although his opinion can theoretically be framed as a political view, the glaring implication persists: his acknowledged bias against nonwhite people like defendant.”

Further, Juror K said he “can’t change” his bias, a clear implication of Clark’s right to a fair trial with an impartial jury.

However, Fox did not believe the trial judge’s mistake merited a new trial, given that Clark had ultimately excused Juror K. Under the state Supreme Court’s precedent, she added, there was no violation of Clark’s constitutional rights if, as alleged, the defense was “forced” to use one its peremptory strikes to eliminate a biased juror.

Dailey agreed Clark did not deserve a new trial, but disagreed that Hall needed to excuse Juror K for his comments on diversity. Dailey criticized the view that trial judges must excuse prospective jurors if they show any racial bias.

He quoted from a 2021 decision of the U.S. Court of Appeals for the Fifth Circuit, a conservative federal court centered around Texas. A panel of Fifth Circuit judges found no issue with allowing three people – on an all-white jury – to serve despite their acknowledgement that they were opposed to interracial marriage. The defendant, a Black man, was convicted of murdering his white wife and is now on death row.

“I do not share the view that a person’s opposition to diversity necessarily reflects ‘intractable racism,’ automatically disqualifying him or her from serving as a juror in cases like the present one,” Dailey wrote, adding that he would not “second guess” the trial court judge’s handling of Juror K.

Finally, Schutz agreed that Juror K’s statements about diversity constituted racial bias and, therefore, Hall should have excused him from the jury. But Schutz also went further and said the failure to dismiss Juror K affected the structural fairness of Clark’s trial and required a reversal of his convictions.

“I resist the suggestion that trial courts should be burdened with trying to assess the ‘degree of racism’ articulated by a prospective juror,” Schutz wrote, in an apparent retort to Dailey’s comments. Schutz believed there was a constitutional violation when the trial judge, by refusing to dismiss Juror K, telegraphed to Clark that the defendant could not expect an unbiased jury.

“It undermined the public’s confidence that the entire trial process would be conducted in a manner to ensure that racial bias would not be tolerated in the courtroom. The decision to permit a racially biased prospective juror to continue on the panel spoke not only to Clark, but also to the greater community,” Schutz wrote.

The message, he elaborated, “was that a prospective juror could sit in judgment of a person against whom he had an acknowledged racial bias.”

Ann Roan, a criminal defense attorney who has testified to the legislature on the subject of racial bias in jury selection, also found it hard to understand how Hall could have interpreted Juror K’s statements about the burden of proof as an indication the man could set aside his racial bias.

“That there were three opinions from the panel reflects the need for, at a minimum, further clarification from the Supreme Court,” she said.

The First Judicial District Attorney’s Office, which prosecutes cases in Gilpin and Jefferson counties, did not immediately respond to a request for comment.

The panel agreed to reject Clark’s other two grounds for appeal. They did not believe it improper that a Gilpin County Court judge substituted for Hall in accepting the jury’s verdict, due to Hall’s commitment in a different courtroom. The panel also saw no need to hold a hearing about one juror’s statements, after trial, alleging members of the jury may have felt pressured to convict Clark as the deliberations continued into a third day.

The case is People v. Clark.