In a major pair of decisions on Monday, the Colorado Supreme Court simultaneously found Arapahoe County prosecutors provided non-racial reasons for removing jurors of color from two criminal trials, but that judges failed to adequately determine whether those reasons were credible.

Further, three of the seven justices, with seeming support from the other four, suggested state lawmakers should abolish the mechanism that allows lawyers to remove jurors for no reason at all. The consequence, noted the majority and concurring opinions, is that jurors of color can end up being “struck” for reasons correlating with their race — and trial judges may have difficulty preventing or detecting it.

Litigants “often rely on intuition or ‘gut feelings’ in choosing a jury. This can sometimes bring false stereotypes or even unconscious bias into play,” acknowledged Justice William W. Hood III in the June 3 majority opinions.

The appeals in the cases of Raeaje Resshaud Johnson and Sterling Dwayne Austin were significant not only for the specific question presented — whether prosecutors gave discriminatory explanations in striking jurors of color who had negative experiences with police. The Supreme Court also disclosed last year it was planning to issue its decisions before acting on a proposed rule change that would make it more difficult for prosecutors to dismiss jurors of color for reasons historically related to race.

Among other things, dismissing a juror for expressing distrust of police would be invalid by default under the proposal. In both Johnson and Austin’s cases, the Supreme Court deemed that to be an acceptable, non-racial reason for striking jurors of color under existing law.

“However prevalent the distrust of law enforcement might be in some communities,” Hood wrote, “the fact remains that it is not an inherent characteristic of any race. Assuming otherwise is simply another form of inappropriate stereotyping.”

The justices’ decisions did not resolve the appeals, however, because in each case the Supreme Court concluded the trial judges neglected to analyze why they found the prosecution’s explanation for striking the jurors credible, and not a pretext for racial discrimination.

Batson challenges

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.

Various states have attempted to reform their jury selection protocols, recognizing that jurors of color were still being struck for their views on racial profiling by law enforcement, their negative experiences with police and even their mannerisms in court. Thurgood Marshall, the first Black U.S. Supreme Court justice who participated in the Batson decision, warned at the time that the procedure for Batson challenges would not eradicate racially motivated juror strikes.

“The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system,” he wrote.

Police bias?

In the first case before the state Supreme Court, Arapahoe County jurors convicted Johnson of multiple domestic violence-related offenses. The jury questionnaire asked whether jurors or their friends or family ever had bad experiences with police. A Black woman, identified as Juror M, wrote, “Yes. Many cases where cops are disrespectful due to certain racial identities.”

Neither party asked Juror M about her response. When prosecutor Neillie Fields moved to strike Juror M and the defense raised a Batson challenge, Fields became offended and said it was “tantamount to an accusation of picking jurors based on race.” She then cited Juror M’s answer on the questionnaire.

“It’s clear, based on her questionnaire, that she’s experienced racism in the past,” the defense attorney responded. “I believe she’s experiencing racism as a juror by taking her off this panel.”

District Court Judge Ben L. Leutwyler permitted Fields to strike Juror M. However, a three-judge panel for the Court of Appeals reversed Johnson’s convictions. It issued a precedent-setting opinion, concluding prosecutors may not remove Black jurors solely for having negative experiences with law enforcement that were informed by their race.

In the second case, also in Arapahoe County, jurors convicted Austin of murder. During jury selection, the defense asked whether any juror felt they were the victim of “racial prejudice.” One woman, Juror 32, said a sheriff’s deputy made her feel uncomfortable during a traffic stop, ultimately issuing her a ticket that noted her race, incorrectly, as “White.”

Juror 32 elaborated that the experience made her think about “projects that I used to do in high school” to reform the Denver Police Department’s racial profiling practices at the time.

Prosecutors Casey Brown and Victoria Klingensmith moved to strike Juror 32, citing her potential bias against Denver police officers who were witnesses in Austin’s case, plus Juror 32’s “negative experiences” with the Denver Police Department. Then-District Court Judge Patricia Herron denied the Batson challenge without elaboration.

Once more, a panel of the Court of Appeals overturned Austin’s conviction, finding the “negative experience (Juror 32) described was clearly based on her race.”

The state Supreme Court disagreed with the appellate judges, stressing the question was the prosecutors’ reasons for dismissing a juror and not “the source of the juror’s potential bias.”

“Although a juror’s bias may derive from her experiences as a person of color — that is, a juror’s experiences and biases may be closely linked to (or because of) her race or gender — that doesn’t convert the striking party’s reason for excusing her into a race- or gender-based reason,” Hood wrote.

However, the Supreme Court faulted Leutwyler and Herron, the trial judges, for recognizing the prosecutors’ race-neutral reasons but not explaining why they ultimately found those credible. Hood noted that in each instance, there was evidence suggesting the jurors would be fair after all.

The Supreme Court directed the Court of Appeals to evaluate the final step of each Batson challenge and, if necessary, return the cases to their original trial judges if necessary.

“Additional factfinding after this long can be difficult,” said Joseph Chase, the lawyer representing Austin, “but the facts on record should weigh in Mr. Austin’s favor and show the prosecutor’s reason for striking Juror 32 was pretextual.”

The concurrence

Although Hood quoted from Marshall’s warning that abolishing peremptory challenges would be the best route to combating racial bias in jury selection, Justice Monica M. Márquez wrote separately to explicitly place that option on the table. She pointed out Arizona’s Supreme Court ended peremptory challenges beginning in 2022, but a similar outcome in Colorado would require the legislature to act.

“Nearly forty years later, it appears Justice Marshall was correct,” wrote Márquez for herself and Justices Melissa Hart and Carlos A. Samour Jr.

She ticked through the problematic nature of Batson challenges, which require trial judges to detect prosecutors’ racial motivations and separate genuinely race-neutral explanations from questionable ones.

“Eliminating the statutory right to peremptory challenges altogether would help ensure that defendants are tried by juries that have been selected without the taint of impermissible discrimination,” Márquez concluded. While stopping short of asking lawmakers to abolish peremptory challenges, she wrote favorably about Arizona’s move, adding, “it may be time to consider new solutions.”

The cases are People v. Johnson and People v. Austin.