Colorado’s second-highest court ruled last month that prosecutors in two cases did not engage in intentional racial discrimination when they dismissed two women of color from the jury pool.

Under longstanding U.S. Supreme Court precedent, purposeful 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.

A proposed rule change is pending before the Colorado Supreme Court that would, if enacted, make it more difficult for prosecutors to strike jurors of color for demeanor-based reasons. However, the proposal has been sitting on the justices’ desks for an unusually long period — more than two years — with no action taken.

In the first case out of Boulder County, a jury convicted Sean Daniel Souders of vehicular homicide and related offenses. During jury selection for his 2022 trial, a woman identified as Juror V spoke relatively briefly. She provided the standard disclosures about her age, occupation and family background. When the prosecutor later asked the jury pool how many people drove to the courthouse, District Court Judge Thomas F. Mulvahill pointed out Juror V had not raised her hand.

“I walked here,” she said.

“OK. Is it a long walk?” the prosecutor asked.

“Not really, no,” Juror V responded.

Neither the prosecution nor the defense spoke further with Juror V. When the prosecution moved to dismiss Juror V, the defense raised a Batson challenge. Souders’ lawyer noted Juror V was “clearly” a person of color and “she gave no indication at all that she had any difficulty with any of the rules of law that were articulated.”

The prosecutor responded that there was “no inappropriate or improper reason” for striking Juror V. Rather, Juror V was “on the quiet side” and “did not offer much information.”

“This is a challenge that’s based on the fact that I know very little about her,” the prosecutor said, compared to more “vocal” jurors in the pool.

Mulvahill allowed the prosecution to remove Juror V. He agreed she was “particularly quiet,” “physically reserved” and “didn’t give a whole lot of information.”

“She’s just really quiet and she is non-emotive in making her responses,” Mulvahill concluded.

On appeal, Souders argued the prosecutor’s race-neutral explanation should not be believed because the prosecution, itself, never engaged in any “meaningful” discussion with Juror V.

But a three-judge Court of Appeals panel disagreed. Judge Lino S. Lipinsky de Orlov noted the prosecutor’s justification at the time was “more nuanced than how Souders frames it.”

The prosecutor’s “motivation for the strike was Juror V’s quiet and unforthcoming demeanor compared to that of other jurors, and not merely that he lacked information about her,” Lipinsky wrote in a Feb. 20 opinion.

While the appellate judges could not confirm Mulvahill’s assessment of Juror V’s demeanor, her brief statements in court supported the idea that she was not forthcoming.

“Because the court was able to view Juror V’s demeanor, and nothing in the record indicates the prosecutor’s and the court’s observations were contrary to the court’s findings,” Lipinsky wrote, “we conclude that this case does not present the ‘exceptional circumstances’ that permit an appellate court to second-guess a trial court’s step-three Batson analysis.”

The case is People v. Souders.

In the second case out of Adams County, the government filed a child neglect case against a mother, identified as D.R.P. After a trial, jurors ultimately determined she mistreated or abused her children.

On appeal, D.R.P. challenged the county’s dismissal of a woman identified as Juror Y.C. The juror only engaged once with the county’s attorney, when they briefly discussed the burden of proof in a child neglect case.

During the Batson challenge, the county’s attorney said he “couldn’t get a read on” some of Juror Y.C.’s written answers to questions. Also, the woman “seemed unwilling or unwanting to thoroughly engage” and was “speaking softly.”

District Court Judge Caryn A. Datz, in allowing the county to strike Juror Y.C., initially noted there was nothing besides the woman’s dark hair and last name to suggest she was a person of color. But Datz found no “sufficient evidence of purposeful discrimination.”

A different appeals panel noted it would have been better for Datz to verify whether Juror Y.C. was, in fact, a person of color before going through the Batson process. Nonetheless, the county’s attorney’s reasons for the strike — he “couldn’t get a read on” her and was put off by her demeanor — were race-neutral.

It was “apparent that the court was simply not persuaded that mother met her burden to prove purposeful racial discrimination,” wrote Judge Dennis A. Graham in the Feb. 20 opinion.

The case is People in the Interest of J.R.M. et al.