Last year, the Colorado Supreme Court indicated it would first decide a handful of pending cases alleging racial bias in jury selection before it took action on a proposal that would make it more difficult for prosecutors to remove jurors of color for reasons that, while not explicitly racial, nonetheless correlate to race.

On Monday, the justices issued decisions in two of the racial bias cases and, in a set of majority and concurring opinions, telegraphed their appetite for rewriting the rules of jury selection was gone. Not only did the court conclude prosecutors may use a juror of color’s negative experiences with police as a justification for excluding them — contrary to the spirit of the proposed rule change — but it suggested the legislature was the real entity that needed to solve the problem.

“I am doubtful that the court will do anything,” said Joyce Akhahenda, a public defender and executive board member of the Sam Cary Bar Association, a professional group for Black lawyers. “The length of time it was taking for a decision on the rule change was already raising red flags that it was not going to be a positive outcome.”

Underlying the effort to address racial bias in jury selection is a nearly 40-year-old U.S. Supreme Court decision, Batson v. Kentucky, which deemed purposeful racial discrimination in jury selection unconstitutional. Now, if a party — typically the prosecution — dismisses a juror of color, the defense may raise a “Batson challenge,” forcing the prosecutor to justify the dismissal with a “race-neutral” reason.

Last February, the state Supreme Court held a hearing on a proposed change to criminal Rule 24 governing jury selection. As introduced, it would reduce less obvious forms of exclusion that are not explicitly linked to a person’s race — for example, dismissing a juror of color for expressing distrust of police, living in a “high-crime neighborhood,” or having prior contact with law enforcement. The rule would also create restrictions on removing jurors for their demeanor — like when an El Paso County prosecutor dismissed a Black woman who allegedly had a “sour look on her face.”

District attorneys voiced opposition, deriding it as “affirmative action in jury selection” and warning that prosecutors could be afraid to strike jurors of color. Defense attorneys and some trial judges spoke in support, telling the justices about their own examples of bias under the current system.

Rule change on thin ice

With the Supreme Court’s two decisions on Monday, however, the justices appeared to retreat from one of the major components of the rule change. They decided that striking jurors of color for voicing distrust of police was an acceptable, race-neutral explanation.

Justice William W. Hood III listed the other states that have enacted similar rules against implicit bias, but he implied the most viable path for combating discrimination was to abolish “peremptory challenges,” which enable attorneys to strike jurors without giving an explanation — unless there is a Batson challenge.

Justice Monica M. Márquez, writing in a three-justice concurrence, more directly endorsed eliminating peremptory challenges as the right answer. In doing so, she passed the responsibility of addressing discrimination back to lawmakers, who previously asked the court to exercise its rulemaking power to address implicit bias.

The Supreme Court’s finger pointing to the legislature triggered frustration among some proponents of the stalled implicit bias rule change.

“Deferring to the legislature likely means that nothing will change. I am not aware of any state that has, by legislation, eliminated peremptory challenges,” said Robert S. Chang, executive director of the Seattle-based Fred T. Korematsu Center for Law and Equality. “I do not have confidence that a legislature will institute this reform, as legislators will be lobbied by certain attorney associations because many lawyers believe, wrongly, that they are good bias detectors.”

Emma Mclean-Riggs, senior staff attorney at the ACLU of Colorado, cautioned against eliminating peremptory challenges outright, calling them a way for defendants to remove potentially biased jurors even if a trial judge did not believe they should be dismissed for cause.

“The opinions raise some concern that the court may be less likely to pursue implicit bias reform, but our hope is that the court will turn toward directly addressing the rampant racial discrimination in jury selection in our state and immediately use all tools available to address it,” she said. “The court can and should institute the proposed changes to Rule 24.”

‘Easy way out’

Retired Denver District Court Judge Morris B. Hoffman has been a longtime advocate of abolishing peremptory challenges, noting in a 1997 law review article that the U.S. Constitution does not require them and attorneys used them beginning in the Reconstruction era to keep Black citizens off of juries. He attributed the longstanding appeal of peremptory challenges to their role as “a tool to perpetuate the racial purity of juries.”

Hoffman told Colorado Politics he found it “interesting” that a significant portion of Colorado’s Supreme Court appeared to have abandoned the implicit bias rule change to tacitly endorse ending peremptory challenges.

“As for whether that will happen, a year ago I would have said no, not with this extremely progressive legislature,” he said, adding that the influence of trial lawyers would presumably interfere with any abolition attempt. “But if the court continues to refuse to adopt the (criminal rules) committee’s radical approach, that may leave the progressives with no other option than to get behind abolition.”

Last month, the Supreme Court heard an appeal out of Weld County, in which a trial judge permitted the prosecution to strike a Hispanic juror who appeared “very disinterested,” even though neither the judge nor the defense endorsed that assessment. During oral arguments, Justice Carlos A. Samour Jr. detoured onto the path of eliminating peremptory challenges, citing the practical difficulties of detecting purposeful racial discrimination in real-time.

“Isn’t the problem with peremptory challenges? We’re trying to guess what’s in someone’s mind, someone’s heart, even when they may not be aware of it, right?” said Samour, who joined Márquez’s concurrence this week suggesting peremptory challenges be abolished. “We’re applying this rule from Batson to a system where, by definition, people are allowed to strike jurors for no reason.”

Akhahenda, the public defender, argued to Colorado Politics that abolishing peremptory challenges is “taking the easy way out.” She said she would prefer the Supreme Court make it harder to remove jurors of color, rather than bless the ability of prosecutors to dismiss jurors whose negative experiences with law enforcement stem from their race — as it did in its recent decisions.

“I do think that the Supreme Court is putting all its eggs into eliminating peremptories rather than doing implicit bias reform,” Akhahenda said. “Implicit bias reform is hard work and it requires confronting and addressing issues of race in a way the judiciary has been reluctant to do.”