Nearly four decades ago, the U.S. Supreme Court recognized purposeful racial discrimination in jury selection to be unconstitutional. 

The courts have since adopted a procedure, known as the “Batson challenge,” to determine whether a juror dismissal, or “strike,” is based on that person’s race. When a lawyer uses a peremptory strike on a juror of color, which typically does not require a reason for the dismissal, the opposing side may raise a Batson challenge to force an explanation for the strike that is “race-neutral.” If a trial judge finds the justification not credible, the juror will remain on the jury.

However, Batson challenges have a blind spot. A race-neutral reason will often pass muster even if the justification, while not explicitly racial, may nonetheless be correlated with a person’s race – for example, if a juror reports having bad experiences with law enforcement or exhibits off-putting demeanor.

Ann M. Roan is a criminal defense attorney for adults and juveniles who is based in Boulder. She was a public defender for 27 years, appearing before Colorado’s trial and appellate courts. Roan has spoken and presented on the topic of racial bias in jury selection, including to the General Assembly. She talked to Colorado Politics about Batson challenges and how to reform them.

FAST FACTS

• Ann M. Roan is a former public defender and the training director for the public defender’s office between 2004 and 2017.
• She received the Colorado Criminal Defense Bar’s Lifetime Achievement Award in 2018.
• In 2021, Roan was involved in passing a bill repealing court costs and fees for juvenile defendants.

Colorado Politics: What has the Supreme Court said about selecting jurors for racial reasons? Are prosecutors or defense lawyers ever allowed to do it, or is there a blanket prohibition on considering race?

Ann Roan: The U.S. Supreme Court held in Batson v. Kentucky that excluding someone from jury service based on race is a violation of the Fourteenth Amendment because “a person’s race simply is unrelated to his fitness as a juror.” Although Batson addressed a prosecutorial peremptory challenge, the court made clear that defense lawyers are bound by the same rules in Georgia v. McCullom.

CP: Why might a lawyer not want someone to serve on a jury because they are a person of color?

AR: Stereotypes are something all of us use, often without even recognizing we’re doing so. Humans have a basic cognitive need to categorize and simplify the world around them. And some lawyers use a prospective juror’s race or gender as a proxy for their ability to serve on a jury, in reliance on stereotypes.

For example, in Miller-El v. Cockrell, the court took note of a training manual written by a Texas prosecutor that urged prosecutors to exclude jurors from all kinds of demographic groups, based on stereotypes:

?   “I don’t like women jurors because I can’t trust them”

?   “Extremely overweight people, especially women and young men, indicates a lack of self-discipline and often times instability”

?   “Jewish veniremen generally make poor State’s jurors. Jews have a history of oppression and generally empathize with the accused”

?   “Minority races almost always empathize with the Defendant”

I suspect that because jury selection is stressful for lawyers, falling back – consciously or unconsciously – on stereotypes for their decisions is a way to make a tough situation a bit easier.

CP: Do you think the Supreme Court is likely to revisit the Batson decision soon to crack down on other, more subtle, instances of racial discrimination in jury selection?

AR: The Batson cases the court has heard to date have all involved pretty overt instances of racial bias in peremptory challenges. But because Batson is an imperfect tool for addressing more nuanced discrimination in jury selection, I suspect the court will continue to get requests for review on those kinds of facts.

CP: Can you talk about the proposal you supported last year in front of the Colorado legislature, which sought to address implicit racial bias in jury selection?

AR: A group of legislators introduced Senate Bill 22-128 after the Colorado Supreme Court rejected a proposed criminal rule change that would have addressed implicit bias in jury selection without taking public comment or setting a public hearing. SB 128, like the proposed rule change, was substantially similar to a rule the Washington State Supreme Court adopted in 2018. Every elected DA in Colorado opposed SB 128 and the sponsors ultimately decided to postpone it indefinitely.

CP: Next month, the state Supreme Court will hear from the public about whether to adopt a new protocol for Batson challenges in the trial courts. How closely does it resemble the legislative proposal, and can you give me the highlights of the rule change?

AR: As I understand it, the current proposed rule is similar to both SB 128 and to the proposed rule the court rejected. Like the Washington rule it was modeled after, the proposed rule change gets rid of those parts of the Batson process that have proved unworkable, and also addresses peremptory challenges based on implicit bias, as well as purposeful discrimination.

A court would no longer have to find purposeful discrimination before granting a Batson objection, and instead would ask if a reasonable person could view the prospective juror’s race or ethnicity as a factor in the use of the peremptory challenge. The proposed rule gives clear guidance to trial courts faced with a Batson objection.

As our state Supreme Court has recognized, despite Batson being settled law for decades, there is still uncertainty about its mechanics and this proposed rule would help remedy the problems that uncertainty creates. Under the proposed rule, if lawyers base a peremptory challenge on their subjective interpretation of a juror’s nonverbal conduct, that conduct has to be brought to the court’s attention in advance, so that the court has the opportunity to verify the lawyer’s interpretation.

CP: If the Supreme Court enacts the rule as drafted, what are the effects we will likely see, starting in the trial courts?

AR: The criminal rules committee spent a lot of time talking to prosecutors and judges in Washington to see how that state’s rule change affected the landscape. And they reported that prosecutors in Washington have become better trained in how to avoid implicit bias in jury selection as a result of the rule. Some of the prosecutors who testified before the Senate Judiciary Committee in opposition to SB 128 said that better training, not legislation, was the answer to this problem, so I’d think that prosecutors will support the rule change for that reason.

Washington lawyers and practitioners also said that following the rule change, more people of color are serving on Washington juries. That’s important, because as Justice Brett Kavanaugh observed in Flowers v. Mississippi, “other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.”

CP: One of the reasons that would be invalid by default for excusing a juror of color is their expression of distrust in law enforcement, or their belief that police racially profile people. Why shouldn’t we be worried that people will get on juries who are skeptical of law enforcement at the outset, and they may not believe police officers’ testimony when they hear it?

AR: We shouldn’t be worried because we should have confidence that Colorado prosecutors are competent to question jurors to identify those that would not be able to follow the court’s instructions in a criminal case and challenge those jurors for cause. Challenges for cause are granted if the juror’s own answers during jury selection reveal that they won’t be able to follow the court’s instructions on the law. Regardless of race, any juror who says their feelings about law enforcement mean they won’t believe a law enforcement witness is subject to being challenged for cause, unless they’re able to set those feeling aside for purposes of the trial.

CP: Is there one single piece of this rule change that you hope will be enacted, even if the other components don’t make it into the final rule?

AR: I believe that all the components of this rule are part of a unified whole, so selecting one at the expense of any others would likely be unworkable.

CP: Is there any way to know how often people of color are being dismissed from juries compared to white members of jury pools?

AR: Unfortunately, the state judicial branch does not collect data on this issue, so there’s no way to know that. Other states have shown that collecting data on the race of citizens struck from jury panels by peremptory challenges is a simple task. It’s hard to say why this has not been a priority for our state court system.