Colorado’s second-highest court declined to order a new trial last week for a Boulder County defendant, despite a juror’s concealment of his own prior conviction until after the verdict.

A jury found Kasey James Arrington guilty of kidnapping and sex-related offenses in 2022. Afterward, the defense alleged that multiple jurors had responded untruthfully during jury selection to the question of whether they had ever “been involved” in a criminal case, either as a defendant, victim, or witness.

At a hearing, a juror identified as B.C. acknowledged that he failed to disclose that he had been involved in two domestic violence cases, where he said he was the victim. B.C. was also convicted in municipal court for shoplifting several years ago.

He claimed that he understood the question about jurors’ involvement in criminal proceedings as excluding the two domestic violence cases, and that he had “completely forgotten” the shoplifting offense.

Chief Judge Nancy W. Salomone believed B.C. was genuinely confused about whether to speak up about the domestic violence cases, but she did not find his memory lapse credible about the shoplifting.

“Indeed, (B.C.) was arrested in the presence of his partner and child and placed in a holding cell at a mall. (B.C.) then attended several court appearances, and ultimately completed a class and community service,” Salomone explained. B.C. testified “that the experience was ‘traumatic.’ It does not follow logically that (he) completely forgot about this entire event.”

However, she rejected the defense’s request for a new trial because Arrington had not established how B.C.’s dishonesty harmed him. Moreover, Salomone believed B.C. failed to disclose his conviction not because he was biased, but “because he was ashamed of it.”

A three-judge Court of Appeals panel acknowledged that prior decisions have suggested that a juror’s intentional concealment of information is, by default, considered harmful. But dishonesty alone does not show that a juror would be unfair in a given trial.

“We conclude that it is within a district court’s discretion to make the final determination of whether a juror is incapable of rendering a fair and impartial verdict in light of the nature of the intentional nondisclosure and its materiality in the context of the case,” wrote Judge Sueanna P. Johnson in the April 16 opinion.

She added that B.C.’s shame about his own conviction, without some connection to Arrington’s case, was not enough to render him a biased juror.

“To not have such a requirement would mean that any juror’s intentional nondisclosure — however irrelevant, minor, or distant in time to the criminal charges or to the circumstances of the case — would result in reversal of a defendant’s criminal conviction without a finding that the juror could not be fair and impartial,” wrote Johnson. “The cases do not support that.”

The case is People v. Arrington.