Colorado’s second-highest court on Thursday agreed an Arapahoe County prosecutor did not intentionally dismiss a Hispanic juror for race-based reasons, but her attempt to justify the removal by citing her own race and the race of the victims was improper.

A three-judge panel for the Court of Appeals noted the prosecutor, in dismissing the Hispanic juror, justified her decision partly by mentioning she was also Hispanic. But the prosecutor’s observation, seemingly aimed at countering any appearance of discrimination, was problematic, wrote Judge Timothy J. Schutz.

“The explanation was improper because a person is not immune from racism simply because the person shares the same race as the person against whom discrimination is directed,” he elaborated in the May 2 opinion. “That is, those of a particular race are capable of discriminating against people of the same race.”

At the same time, Schutz added, “ignorance of this truth is not evidence of racism.”

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.

Jurors convicted Gustavo Andazola-Burciaga in 2021 for multiple counts of child sex assault. He is serving 126 years in prison.

During jury selection, a Hispanic woman identified as C.V. indicated that she had an existing obligation later that week. She also wrote on her juror questionnaire that she might not be a good juror because she knew “some things but not too much” about the justice system. In response to questioning, however, C.V. said she could be fair.

Prosecutor Danielle Jaramillo moved to strike C.V. and the defense raised a Batson challenge, alleging the “only basis that I can see” for removing C.V. was her race or ethnicity.

“Judge, I would note just for the record that our two victims — three victims are Hispanic,” responded Jaramillo, and “this prosecutor is Hispanic, because I do believe that that’s relevant.”

She added C.V. also had a conflict later in the week and wrote in the juror questionnaire that she had concerns about serving. The defense attorney responded that “a number of jurors” said they had obligations, but remained in the jury pool. 

District Court Judge Eric White permitted the prosecution to strike C.V., noting there was “a race-neutral reason or reasons.”

After jury selection, Jaramillo made additional comments about dismissing C.V., pointing out the prosecution struck five jurors — four of whom were White — and the defense also struck a juror of color. Andazola-Burciaga’s lawyer responded that the defense’s own juror strike “shouldn’t factor into the court’s analysis.”

On appeal, Andazola-Burciaga argued Jaramillo’s immediate reference to her and C.V.’s shared race did not comply with Batson.

“The prosecutor thus sought to justify the strike on the assumption that she could not have struck her based on race, because they all shared the same race. This was not a race-neutral explanation,” wrote public defender Andrew C. Heher. “Rather, it was explicitly based on race.”

The government did not defend Jaramillo’s comments as a race-neutral explanation, instead characterizing her reference to her own race as simply a “note” about the circumstances.

The government is “unaware of any authority holding that the mere mention of race, including the prosecutor’s own race, during a Batson challenge, requires that the objection be upheld,” wrote Assistant Attorney General Jaycey DeHoyos.

The Court of Appeals panel noted Jaramillo did offer two race-neutral reasons — the scheduling conflict and the questionnaire answer — that were valid. At the same time, it recognized that while Jaramillo’s comments about her own race, the race of the victims and the race of other jurors did not prove intentional discrimination, they were also not race-neutral.

“Nonetheless, while these explanations were unavailing, at worst they were an ill-advised attempt to disclaim purposeful discrimination,” wrote Schutz, and not “an attempt to cover up an ulterior motive for striking the juror.”

The case is People v. Andazola-Burciaga.