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The Court of Appeals overlooked multiple key facts in finding a prosecutor excused at least two people of color from a jury pool for reasons seemingly related to their race, the Colorado Attorney General’s Office is arguing in a request to reconsider that decision.

A petition for rehearing submitted to the court on April 21 follows an appellate panel’s decision earlier this month to order a new trial for Derek Ramon Robinson, who was convicted in 2016 in Arapahoe County for the attempted murder and assault of his then-girlfriend. By a 2-1 ruling, the three-member panel’s majority found it plausible that some jurors in the original trial of Robinson, who is Black, were excused due to discrimination and in violation of established legal precedent.

Appellate attorneys said that rehearing petitions are another avenue to try and reverse a court’s decision, given the relatively few cases the Colorado Supreme Court accepts for review each year. Such requests were filed in approximately 18% of cases in 2020. However, asking the same set of judges to find they committed an error may be a legal long shot.

“I've never filed a petition for rehearing at the Court of Appeals, and I generally wouldn't unless I thought there was a clear, obvious error in the opinion that changed the disposition of the case,” said Christopher Jackson, a partner at Holland & Hart. “Conventional wisdom is that the odds of prevailing on a rehearing request are very, very long.”

Robinson's case was an uncommon instance of the Court of Appeals reversing a conviction based on a “Batson challenge,” a legal procedure named after the landmark U.S. Supreme Court case of Batson v. Kentucky. Following the appeal of a Black defendant whose trial featured an all-white jury, the majority deemed it unconstitutional to exclude jurors based on their race.

In Robinson’s trial, the prosecution moved to excuse, without explanation, two people identified as Juror V (who appeared Hispanic) and Juror S (who appeared to be of “Indian descent”). Robinson’s attorney raised a Batson challenge, requiring the prosecutor to justify his decision via a non-racial reason for dismissing the two jurors.

The trial court judge accepted the prosecutor’s explanation that Jurors S and V were excused because they were unable to fully commit to the concept of proof beyond a reasonable doubt. But the appellate panel’s majority disagreed.

They compared the responses Jurors S and V gave to that of Juror D, whom the panel identified as a white woman. Because Juror D’s answers to questions were similar to the jurors of color, and the prosecution did not attempt to dismiss her, the majority found “disparate treatment” that could not be explained by the jurors’ similar statements about the burden of proof.

But now, the attorney general’s office says the majority based its decision on a faulty set of facts. Importantly, there is allegedly no evidence that Juror D was white.

Prosecutors “have searched the record to no avail,” wrote Assistant Attorney General Gabriel P. Olivares, only to conclude that Juror D’s race was a matter for speculation only.

Olivares also latched onto the opinion of the dissenting appellate judge, David H. Yun, who disagreed that Jurors S, V and D were all responding to the same question: whether they would be able to find a defendant guilty if the prosecution had proved what it needed to legally, but the jurors still had lingering questions about certain details.

“In my view, the record in this case is not sufficient to conduct a meaningful comparison of whether the dismissed Jurors S and V were similarly situated or shared similar views” as Juror D, Yun wrote.

Likewise, Olivares argued that unlike the jurors of color, "Juror D never expressed hesitation about convicting the defendant if a witness couldn’t accurately recall an inconsequential detail or the prosecution couldn’t prove it."

The appellate court did not consider allegations relating to the dismissal of a third juror, who appeared to be Asian American, because it had already resolved the issue in Robinson's favor for Jurors S and V.

Robinson’s case features a handful of unique factors that may influence the rehearing petition. The additional information in the petition could affect in particular the position of Judge Jerry N. Jones, who, while ultimately siding with the majority, wrote separately to declare the case “very close.”

“I am persuaded — barely,” Jones noted at the time.

Another wildcard factor: the district court judge in Robinson's case, Natalie T. Chase, recently agreed to resign for racist behavior and other official misconduct. The revelation came days after the Court of Appeals released its opinion, but her resignation and censure may be germane to any further appeal of Robinson's case. The panel scolded Chase for offering her own non-racial explanation for the jurors' excusals, when the justification was solely the prosecutor's to give.

"If a judge has a bias or prejudice that in all probability will prevent him or her from dealing fairly with a party," the Colorado Supreme Court wrote in 2002, "the judge must not preside over the case."

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