A man serving a life sentence for murder will receive a new trial because an Arapahoe County judge improperly allowed prosecutors to remove a juror of color based on her race, Colorado’s second-highest court decided on Thursday.

The U.S. Supreme Court recognized more than 30 years ago that intentional racial discrimination in jury selection is unconstitutional. Consequently, when a defendant challenges the prosecution’s decision to dismiss, or strike, a juror of color, prosecutors must supply a “race-neutral” reason.

In the 2019 trial of Sterling Dwayne Austin, prosecutors struck a nonwhite woman identified as Juror 32, whose last name suggested she was Hispanic. As its race-neutral reason, the government cited Juror 32’s work in high school against racial bias in the Denver Police Department and her “negative experiences” with law enforcement.

But a three-judge panel of the Court of Appeals saw an explicit and problematic racial link in that explanation.

“The prosecutor’s stated reason for striking Juror 32 focused entirely on Juror 32’s description of her ‘negative’ experiences with law enforcement. And those negative experiences were based on her race,” wrote Judge Craig R. Welling in the panel’s Dec. 22 opinion.

The process of objecting to a juror’s dismissal on racial grounds is known as a “Batson challenge,” named for the 1986 Supreme Court decision of Batson v. Kentucky. In that case, prosecutors struck the Black members of a jury pool, leaving an all-white jury to convict a Black defendant. The Supreme Court acknowledged that excluding jurors on the basis of race undermines public confidence in the justice system.

Batson challenges trigger a three-step process at trial. First, the defendant must state a plausible case of racial discrimination. Second, the prosecution provides race-neutral reasons for its actions. Finally, the trial judge weighs the credibility of the explanation and decides if purposeful racial discrimination is likely happening.

Austin stood trial for the 2017 murder of his fiancée, Aurora Coleman. Prosecutors argued Austin beat and strangled her, while the defense claimed Coleman died of a drug overdose. After the first trial ended in a non-unanimous verdict, jurors convicted Austin at a second trial and he received a life sentence in prison.

Austin raised several claims in his appeal, including that District Court Judge Patricia Herron was wrong to deny the defense’s request to give jurors an implicit bias questionnaire.

“I can guarantee you that for Mr. Austin, who is 99% of the time the only African American person in this courtroom, the issue of race is a major issue for him,” the defense attorney argued to Herron.

The judge, in turn, said racial bias could be “adequately covered” during voir dire, when attorneys question jurors directly.

From there, it was the questioning Juror 32 about racial bias in policing that formed the main thrust of Austin’s appeal.

The prosecutor was the first to speak to Juror 32, asking her about witness credibility and, in particular, police officer credibility. Juror 32 responded that she could be as fair to police officers as to any other witness, and “I believe that everyone is a good person until proven otherwise.”

The defense then asked the jury pool if anyone “ever felt like they were the victim of racial prejudice before,” and several people’s hands went up, including Juror 32’s.

“About three years ago, I got stopped on Arapahoe Rd. with expired tags on my license plates,” Juror 32 explained.

The officer, apparently an Arapahoe County sheriff’s deputy, asked if Juror 32 was “sure you live around here.” He also asked if the vehicle was hers.

“And he just kept saying things to make me feel uncomfortable because of, you know, my obvious race,” Juror 32 recalled.

After 30 minutes of being stopped, the deputy gave Juror 32 a ticket for expired plates, but the paperwork indicated Juror 32’s race was “white.” She told the deputy she was not white and asked if he could change the racial designation.

“Like, what are they trying to hide by them checking white on a ticket?” she continued. “It just took me back to projects that I used to do in high school with racial profiling and the Denver Police Department.”

At the defense’s prompting, Juror 32 then described a past practice of Denver police officers stopping Black and Hispanic people, but indicating on traffic tickets that their race was white, ostensibly to conceal the number of people of color being stopped. The General Assembly enacted a law two decades ago to address the problem, requiring, in part, that officers provide business cards to motorists to facilitate complaints of racial profiling.

“So, that’s why that – having that ticket and having white checked on my race brought me back to, OK, this is exactly what we fought so much for in the Denver Police Department,” Juror 32 said.

The prosecution then moved to excuse Juror 32. The defense raised a Batson challenge, alleging the strike was based on her race. 

The race-neutral reason for the strike, explained the prosecutor, is Juror 32’s “involvement with the Denver Police Department, that she was a leader in, I guess, some reforms and some actions against the Denver Police Department.” Because Denver officers would be witnesses against Austin, “I have concerns that she is going to have bias against the Denver Police Department.”

Austin’s attorney countered that Juror 32’s experiences and activism were, in fact, based on her race.

“Judge, it has to be for her race, not based on a racial reason,” the prosecutor protested. “I think she’s had negative experiences with the Denver Police Department.”

Herron denied the Batson challenge, finding the prosecution had given a race-neutral reason.

While Austin’s appeal was pending, the Colorado Supreme Court decided a similar case involving a Batson challenge, People v. Ojeda. There, a Denver prosecutor justified the dismissal of a Hispanic juror from a Hispanic defendant’s trial by bringing up the race of both men as well as the juror’s work “with communities of color.” The Supreme Court found the explanation reflected an “overtly race-based concern” and agreed the conviction could not stand.

During oral arguments in Austin’s case, Olivia Probetts of the Colorado Attorney General’s Office attempted to distance the Denver prosecutor’s treatment of the Hispanic juror from the Arapahoe County prosecutor’s handling of Juror 32.

“I still think that striking a juror for having negative experiences with police, even if those experiences are based on race, is race natural,” she argued. 

Welling, however, said he was uncomfortable with permitting prosecutors to “repackage” a race-based reason as something more benign, even if the context suggests the juror’s race is clearly a factor.

“Here, the story she told about being pulled over and asked why she’s in this neighborhood, why she’s driving this car, having the police officer check white instead of Hispanic on the ticket – and then for the prosecutor to use that and just say, ‘I’m striking because it’s a negative experience with the police’,” Welling said, “I mean, that concerns me considerably.”

Ultimately, the panel agreed the prosecutor’s reason for striking Juror 32 was inherently racial. Her negative experience with the Arapahoe County deputy and her prior activism with the Denver Police Department, in Juror 32’s telling, had clear linkages to her race.

The “thread that runs from Juror 32’s answers in voir dire to the prosecution’s proffered reason for striking her is a ‘negative experience’ that she had with law enforcement because of her race,” Welling wrote.

Because the trial judge mistakenly denied the Batson challenge, Court of Appeals ordered a new trial for Austin.

Next year, the state Supreme Court will consider adopting new rules governing Batson challenges in order to account for a broader range of potentially-discriminatory behavior. For example, the rules would make a juror strike invalid by default if it is based on a juror’s prior contact with law enforcement or belief that police engage in racial profiling. Further, trial judges will need to consider whether a race-neutral explanation “might be disproportionately associated with race or ethnicity.”

A public hearing on the proposal is scheduled for Feb. 7.

The case is People v. Austin.