When asked to explain why he wanted to excuse a Black woman from the jury, an Arapahoe County prosecutor got offended, claimed he was being called racist, and offered inconsistent and factually untrue explanations for his actions. But while the prosecutor succeeded in convincing the trial judge to dismiss the juror, the state’s second-highest court ordered a new trial on Thursday after determining it was a mistake to accept the prosecutor’s dubious, allegedly non-racial reasons.

Judge Rebecca R. Freyre, writing for a three-judge panel of the Court of Appeals, did not mince words in concluding the prosecutor had sought to excuse the Black juror from a Black defendant’s trial in violation of the U.S. Supreme Court’s longstanding prohibition on intentional racial discrimination in jury selection. Batson v. Kentucky, the 1986 decision that provided a means to challenge dismissals of jurors of color, requires “race-neutral” reasons be given to stave off a challenge.

The trial transcript “shows that the prosecutor’s reasons for striking Juror J were so internally inconsistent as to be implausible,” Freyre wrote in the March 24 opinion. Furthermore, “the prosecutor misstated the record three times when providing his purported race-neutral reason.”

Those red flags, she continued, “constitute pretextual evidence of discriminatory intent.”

The appeal of Joshua Daniel Fletcher comes amid a focus in Colorado on racial bias in jury selection. Last month, the state Supreme Court issued a rare decision finding purposeful race discrimination in a Denver prosecutor’s dismissal of a Hispanic man from a Hispanic defendant’s jury. Soon afterward, a bill in the legislature seeking to crack down on dismissals of jurors of color faltered in the face of opposition by prosecutors. 

Also on Thursday, a different Court of Appeals panel decided a case out of Gilpin County, in which the trial judge declined to dismiss a juror from a Black man’s trial, despite the juror saying he had moved to the largely white jurisdiction because he “didn’t want diversity.”

An Arapahoe County jury convicted Fletcher of aggravated robbery, felony menacing and misdemeanor theft in 2019. Fletcher, who is Black, argued that his attempt to steal a cell phone amounted to theft only.

During voir dire, which is the part of jury selection when the parties ask questions of potential jurors, the prosecutor made contact with Juror J, who was a Black woman. She responded to his questions about her prior service on a jury.

“Sounds like you gave everyone a fair trial,” said the prosecutor, who the 18th Judicial District Attorney’s Office identified to Colorado Politics as former Deputy District Attorney Francisco Martinez. He later came back to Juror J and asked whether she would make a good juror in Fletcher’s case.

“Yes,” she responded. “I am keenly observant.”

“That’s good. We’ll need that,” Martinez responded.

After dismissals of other jurors enabled Juror J to move into the jury box, Martinez immediately attempted to dismiss her using a peremptory challenge, which typically does not require a reason for the strike. The defense raised a “Batson challenge,” which triggers a three-step process requiring the trial judge to hear any non-racial reasons for striking the juror and deciding whether intentional racial discrimination is likely taking place.

However, Martinez reacted by quickly taking offense to the process.

“This challenge, it’s my understanding, is basically calling the People racist, which is how I view the situation,” he said.

“I don’t see it as an allegation that you are racist at all,” District Court Judge Andrew Baum reassured him. “I think it’s just to make sure there is a race-neutral reason.”

The prosecutor continued to protest, saying, erroneously, the defense needed to show a pattern of discrimination. Only after further prompting from Baum did Martinez volunteer that Juror J “seemed engaged” but simultaneously “seemed disinterested in what the parties were talking about.” Martinez also claimed Juror J “would listen to the evidence in the case,” but at the same time he “had concerns with her ability to be fully engaged throughout the trial process.”

Yet again, Baum asked the prosecutor to give a specific, race-neutral reason. Finally, Martinez alleged Juror J “was often staring up above, staring not at the ceiling but off into the distance.”

Both the judge and the defense attorney noted that they had not noticed any such behavior from Juror J, but Baum called a recess so he could research the matter. Upon returning, Baum concluded that the Batson decision did not require him to personally witness the demeanor that Martinez cited. As such, the explanation about Juror J sufficed, and Baum allowed for her dismissal.

On appeal, Fletcher claimed Martinez, in fact, did not have a reason for dismissing Juror J other than her race. He said the prosecutor failed to advance a satisfactory race-neutral explanation until Baum offered multiple chances to explain himself. Further, neither the judge nor the defense attorney noticed Juror J allegedly staring “off into the distance.”

During oral arguments this month, Judge Elizabeth L. Harris questioned why the panel should permit unverified assertions of “staring” to be the sole basis for removing a juror of color.

“So, now the prosecutor can just say that and the judge says, ‘Well I didn’t see that, but I guess I don’t have to see it. So, OK, I guess you can strike the Black person’?” she quizzed. “And we say, ‘All right, what are we gonna do?'”

Assistant Attorney General Jacob R. Lofgren denied that Martinez ever shifted his reasoning and urged the panel to defer to Baum’s handling of Juror J’s dismissal. Lofgren conceded, however, that the prosecutor “expressed some lack of knowledge” about the Batson process.

“This is like the tenth time we’ve all sort of agreed that the problem here is that the prosecutor didn’t understand Batson,” Harris interrupted sternly. “Batson is a case from the mid-’80s. That guy did understand Batson. What he was trying to do is weaponize Batson against the trial court by saying … ‘If you grant her challenge, if you go one step further on this, that’s the equivalent of you calling me a racist.'”

She added, “I don’t agree that he didn’t understand Batson. I think he very much understood Batson and thought he could use it to push the judge.”

The panel’s opinion reinforced that skepticism of the prosecutor’s motivations. Freyre emphasized that a Batson challenge is not the equivalent of calling an attorney racist, and using it as a proxy for a lawyer’s character “substantially undermines its purpose.”

Among its findings, the Court of Appeals ultimately did not see Martinez’s race-neutral reasons as credible. His initial answers were nonresponsive, suggesting he did not actually have a reason for dismissing Juror J. Moreover, his eventual justifications – Juror J “seemed engaged” but also “seemed disinterested” – were illogical.

Finally, Martinez made untrue statements about Juror J’s responses to questioning, the panel said. Consequently, Baum had ample reason to reject the attempted dismissal of Juror J, the appellate panel said, if he had stood by his own observations and not accepted the prosecutor’s misrepresentation.

“While Batson does not require a court to personally observe a juror’s demeanor to support a prosecutor’s explanation, it also does not require trial courts to put aside their own observations or to accept implausible explanations,” Freyre wrote.

The legislation to address jury bias that failed this year would have placed additional conditions on the use of demeanor-based reasons to excuse a juror. The measure was modeled on changes first adopted by the Washington Supreme Court, a version of which Colorado’s highest court briefly considered in 2021. The Colorado Supreme Court declined to take action on that jury bias proposal, indicating a desire for greater consensus.

The case is People v. Fletcher.