Four Democratic lawmakers have written to the Colorado Supreme Court’s criminal rules committee urging it to address racial bias in jury selection following resistance from prosecutors to a legislative proposal on the subject.

Last month, the sponsors of Senate Bill 128 declined to move forward with their legislation after all 22 elected district attorneys registered their opposition. SB 128 sought to make it harder for attorneys to dismiss people of color during jury selection based on factors that, while not explicitly racial, still correlate with race.

On March 16, the sponsors wrote to the Advisory Committee on the Rules of Criminal Procedure, asking it to resurrect a proposal it considered last year addressing racial bias that closely resembled SB 128. The Supreme Court, however, rejected the proposed changes to criminal procedure Rule 24, which governs jury selection, because the justices wanted to see more consensus.

“The communities we represent interpreted the Court’s prior refusal to even solicit input from the public about the proposed amendments to Crim.P. 24 as a clear message that its members have no interest in addressing racial bias in our criminal courts in any meaningful way,” wrote Sens. Pete Lee, D-Colorado Springs, and Julie Gonzales, D-Denver, and Reps. Jennifer Bacon, D-Denver, and Steven Woodrow, D-Denver. 

The legislators included a veiled ultimatum to the criminal rules committee, conveying their hope that the judicial branch could change the rule before the next legislative session “so that introducing legislation on this issue next year is unnecessary.”

The committee will discuss the letter at its next meeting on Friday.

Both SB 128 and the proposal to change Rule 24 were intended to address the use of peremptory challenges in jury selection. In contrast with for-cause dismissals of jurors, parties do not need to give a reason to dismiss, or strike, someone from the jury pool using a peremptory challenge.

In 1986, the U.S. Supreme Court decided in Batson v. Kentucky that intentional dismissals of jurors based on race were unconstitutional. Now, using a procedure known as a “Batson challenge,” parties may be able to prevent the dismissal of a juror of color if they can demonstrate that the juror’s race motivated the strike.

Using a three-step process, trial judges first need to determine if there is a sufficient allegation of racial bias under a Batson challenge, then ask the party seeking to strike the juror to provide “race-neutral” explanations for the dismissal. The judge then weighs the circumstances and decides whether purposeful racial discrimination is occurring.

Critics of Batson challenges point out that lawyers may be able to mask race discrimination by coming up with alternative reasons for a dismissal, and that the Batson process does not account for juror strikes motivated by implicit bias. Others, including the Colorado Supreme Court itself, have acknowledged a perception that granting a Batson challenge is akin to calling a lawyer racist for attempting to remove a juror of color.

“(A) finding of discriminatory purpose based on race is not the same as a finding that the proponent of the strike is racist,” wrote Justice Maria E. Berkenkotter in an opinion earlier this year.

In 2018, the Washington Supreme Court adopted a rule change that placed new guardrails on jury selection. Specifically, Washington’s “general rules” now list reasons that are presumptively invalid for striking a juror because they have historically been used against people of color. Having prior contact with law enforcement officers, living in a “high-crime” neighborhood and not being a native English speaker are not, on the surface, sufficient justifications to dismiss a juror.

The Washington rule also prohibits parties from excusing a juror based on body language, demeanor or inattentiveness without corroboration from the judge or the opposing party about the behavior.

Although several defense attorneys spoke in support of Colorado’s SB 128, saying people of color should not be excluded from jury service because of their lived experiences, prosecutors believed the proposal went too far.

The legislators noted in their March 16 letter that no prosecutors had subsequently written to them with suggestions for improving SB 128 since its hearing before the Senate Judiciary Committee, although district attorneys at the time agreed that racial bias was problematic.

It would “seem that commitment would have prompted them to work constructively to amend our bill, but that was not the case,” the letter reads.

The lawmakers offered several observations to the criminal rules committee should it mount a second attempt at changing Rule 24. First, they advocated for replacing the existing protocol under Batson of evaluating intentional racial discrimination with a new standard that asks whether an objective observer could view race or ethnicity as a factor in a juror’s dismissal.

In addition, the lawmakers suggested the committee explore adding protections based on sex, although they clarified that their focus was on the historical exclusion of jurors of color.

Finally, the letter implied that the General Assembly would be interested in seeing statistics on juror strikes presented at annual oversight hearings, and the judicial branch should be prepared to answer questions about Rule 24.

“Collecting data on the race of citizens struck from jury panels by peremptory challenges is a simple task, as other states have proven. And that data is critical to crafting a well-informed solution to a problem that even those who opposed our bill admit exists,” the letter concluded.