Colorado’s second-highest court concluded on Thursday that an El Paso County prosecutor did not intentionally remove the only Black juror from a Black defendant’s jury because of his race, even as he misrepresented the man’s responses to questioning.

The Court of Appeals in multiple cases has waved aside the idea that a prosecutor’s erroneous statements about what a juror of color said are automatically proof of race-based discrimination. A three-judge panel that heard the appeal of Rodric Lee Donley likewise concluded a prosecutor dismissed a Black juror due to a “mistaken recollection,” and not discrimination.

Under longstanding U.S. Supreme Court precedent, intentional race-based discrimination in jury selection is unconstitutional. Normally, parties may exercise “peremptory strikes” of jurors without citing a reason. But when a prosecutor tries to dismiss a juror of color, the defendant may raise a “Batson challenge,” named after the Supreme Court’s Batson v. Kentucky decision. Such a challenge forces the prosecutor to justify the removal with a “race-neutral” reason.

The challenge proceeds in three steps. First, the defense must state a plausible case that a juror is being removed on account of their race. Second, the prosecution must offer a race-neutral explanation. Finally, the trial judge analyzes whether discrimination is likely happening.

Donley, who stood trial in 2022 for the 2010 killing of Martique Webster, is currently serving life in prison after jurors convicted him of felony murder — meaning he contributed to Webster’s death in the course of committing another crime.

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During jury selection, Donley’s lawyer spoke with a juror about the need to be certain of a defendant’s guilt beyond a reasonable doubt to guard against wrongful convictions. Turning to Juror M.M., who was Black, the defense attorney asked for his reaction.

“It makes sense because somebody’s life is on the line,” Juror M.M. responded.

“And we don’t want to send innocent people to prison,” added the attorney.

“Yep, because it’s happened a lot,” said Juror M.M.

The unnamed prosecutor attempted to strike Juror M.M., who was the only Black person in the jury pool at that point. The defense raised a Batson challenge and the prosecutor gave his race-neutral reason.

Juror M.M. “said that someone’s life’s on the line, it happens a lot, putting innocent people in jail is something that would bother him and he’s worried about that,” the prosecutor said.

The defense did not correct the prosecutor’s misquotation of Juror M.M.’s responses, but rather argued that jurors “should worry about putting innocent people in jail.”

District Court Judge Marla Prudek rejected the defense’s challenge. She incorrectly recalled Juror M.M. “indicated that he would have difficulty making a decision because someone’s life was in question,” and that was a race-neutral reason to remove him.

On appeal, Donley insisted Prudek should have deemed the prosecutor’s justification not credible because Juror M.M. neither said he was worried about putting innocent people in jail nor did he say he would have difficulty making a decision.

“His remarks were those one would hope for from a fair and unbiased juror, and the mischaracterization of them by the prosecutor and the court suggested a race-based motive for the strike,” wrote attorney Mallika L. Magner.

Appeals court finds no racial discrimination by El Paso County prosecutor

The Court of Appeals panel reviewing Donley’s case acknowledged the prosecutor and Prudek misrepresented what Juror M.M. said. However, Judge Rebecca R. Freyre wrote in the March 28 opinion that it appeared to be a “mistaken recollection,” rather than purposeful discrimination.

“First, and importantly, the record shows that neither the court nor defense counsel corrected the prosecutor’s characterization of Juror M.M.’s responses. Instead, defense counsel agreed that Juror M.M. expressed concern,” she wrote.

Likewise, if Donley’s lawyer went along with the incorrect characterization of what Juror M.M. said, the race-neutral explanation likely seemed reasonable at the time.

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The panel upheld Donley’s conviction. It also rejected Donley’s other allegation that Prudek coerced the jury into reaching a verdict after jurors indicated they could not reach consensus. Although the prosecutor felt the jury was clear it had reached a deadlock, Prudek gave an instruction for jurors to re-evaluate their views of the case and change their votes if necessary. The jury reached a verdict 3.5 hours later.

The panel conceded it would have been acceptable to withhold the instruction under the circumstances, but believed Prudek was also justified in giving it.

The case is People v. Donley.