In a divided ruling on Thursday, Colorado’s second-highest court determined a Gilpin County judge acted appropriately by keeping a woman on a criminal jury after her admission that she “would need to hear that reason why” the defendant did not take the witness stand.

A three-judge panel for the Court of Appeals acknowledged a quirk in Joseph Simon Boyer’s case, in which the trial judge had apparently confused two members of the jury pool and, as a result, neglected to ensure that Juror M would ultimately respect Boyer’s right to silence. But a majority of the panel concluded Juror M’s doubts about a defendant who declines to testify did not equate to bias against Boyer.

“Juror M never stated that she could not follow the law or the court’s instructions, but merely explained that she would have continuing doubts as to why Boyer would choose not to testify,” wrote Judge Janice B. Davidson for herself and Judge David H. Yun in the Feb. 23 opinion. “These are very different statements – one indicates an inability to be impartial, while the other is a reasonable desire to ‘hear both sides.'”

Judge Neeti V. Pawar disagreed. She believed Juror M’s service affected the fundamental fairness of Boyer’s trial, in that Juror M had suggested she would factor Boyer’s silence into the verdict.

“I conclude that the only reasonable reading of the record is that Juror M expressed an inability to follow the law on a defendant’s decision not to testify,” Pawar wrote.

Boyer stood trial in November 2019 for intentionally hitting a man with his car. A jury convicted him of felony menacing and assault, for which he received five years in community corrections. Juror M served on the jury.

During voir dire, which is the part of jury selection when the parties question members of the jury pool, Boyer’s attorney asked what people would think if Boyer exercised his constitutional right not to testify. Juror M responded that she would have difficulty setting it aside.

“I would have doubt as to why they didn’t get up if they were that adamant about not (committing the offense). Why would they not get up and say that in front of the jurors?” she explained.

The defense attorney asked if she would be able to follow an instruction to not hold Boyer’s silence against him.

“You can’t use it against him, but I would still question why,” she replied. “I would need to hear that reason why.”

Juror M further acknowledged there were “lots of good reasons” for not testifying and that she would “have to hear the rest” of the evidence. But, she said, “I would have a question” about the defendant’s choice not to testify.

Boyer attempted to remove five people, including Juror M, for cause, meaning they would not decide the case fairly and impartially. Boyer’s attorney claimed Juror M’s issue was that “she would need to hear additional evidence in order to justify the lack of hearing from the defendant.”

District Court Judge Todd L. Vriesman then attempted to rehabilitate the jurors with purported bias, a process that aims to get jurors to commit to deciding the case based on the evidence and the law. Vriesman explained a defendant’s silence cannot be used as evidence of guilt and, while it is natural to seek an explanation from an accused person, that is not the standard in a criminal case.

Vriesman then talked to four of the five challenged jurors individually. In an apparent mistake, he bypassed questioning Juror M and instead spoke to a juror who was not involved in the challenge. Vriesman dismissed two of the jurors, but kept Juror M.

On appeal, Boyer raised Juror M’s participation in his case. The government countered that Juror M had acknowledged what the law requires and did not say she would have a problem after Vriesman admonished the entire jury about a defendant’s silence.

The appellate panel indicated it must uphold Vriesman’s handling of Juror M as long as some facts could justify retaining her on the jury. The majority believed Juror M had never outright refused to follow the law, nor did she raise any concerns once Vriesman explained the constitutional right to silence.

“And while she comfortably voiced serious doubt about the rule that she could not consider the failure to testify, she acknowledged the rule,” wrote Davidson, a retired judge who sat on the panel at the chief justice’s assignment. “This is further evidence in support of the trial court’s determination that she would follow the law.”

Pawar countered that Juror M’s initial statements suggested she would hold Boyer’s choice not to testify against him, and Juror M’s own silence after Vriesman’s explanation of the law did not make her rehabilitated.

“Juror M had made clear that she would infer something negative about a defendant based on his decision not to testify, even in the face of a rule prohibiting her from doing so,” Pawar wrote.

The case is People v. Boyer.