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“It’s not as simple as just ferreting out overt racism, because … if it’s that overt, we already have checks in place to deal with it,” Colorado Criminal Defense Bar policy coordinator Tristan Gorman said. “It’s the implicit biases that are really more insidious — and again, that’s not about intent, it’s about biases that we all have that we may not even be aware of, that are influencing what we’re doing and saying in the courtroom.”

In 1985, James Batson, still smarting from a failed appeal in the Kentucky Supreme Court bidding to overturn burglary and stolen goods convictions, brought his case to the United States Supreme Court. He alleged that his Sixth and Fourteenth Amendment rights had been violated by a Kentucky prosecutor.

During the jury selection process, Batson and his attorneys claimed, the prosecutor challenged and dismissed four Black potential jurors, resulting in an all-white jury. That, they alleged, was a violation of Batson’s right to a fair jury trial, as well as his right to equal protection of the law.

In a 7-2 decision, the Supreme Court ruled the state was not permitted to dismiss potential jurors based on their race, adding that “discriminatory jury selection” didn’t just threaten one defendant, but also the trust of “the entire community.”

Batson v. Kentucky was a landmark case for the United States justice system. But in Colorado, some critics say it doesn’t sufficiently tackle bias in judicial processes like jury selection because it primarily targets bias that’s explicit — which isn’t the only type of bias that can slip through.

Jury selection in Colorado begins with a county jury commissioner, who draws a pool of potential jurors from driver’s license records, Department of Revenue records, and voter registrations issued in the county. In general, citizens are called for jury duty once a year, and the number of prospects drawn varies from case to case.

Those chosen to be in the initial pool of potential jurors are asked to fill out a questionnaire attached to their summons which delves into their beliefs and life experiences, in order to reveal any biases potential jurors may have toward the defendant, witnesses, or attorneys. Potential jurors are asked to return the questionnaire before reporting to the courthouse.

The morning of the trial, the court brings the assembly in for a challenge stage, called a voir dire, during which the pool of potential jurors is narrowed into a 12-person panel. In addition to the judge being able to excuse jurors, this stage allows defense attorneys and prosecutors to raise challenges on specific jurors to dismiss them.

Those challenges can take the form of “for cause” challenges or “peremptory” challenges. The for cause challenge is based on specific issues or biases toward defendants or attorneys which preclude a potential juror’s ability to deliberate fairly and according to Colorado law.

Several grounds supporting for cause challenges can be accepted by a judge, including being related by blood to someone involved in a case, having previously served as a juror at a former trial involving the same set of facts or defendant, and being a compensated employee of a public law enforcement agency or public defender’s office.

Jurors are required by Colorado law to inform the court if they know they satisfy one of the criteria to be disqualified from jury services, regardless of whether they’ve been asked about it.

Peremptory challenges, on the other hand, can be less specific, and can be raised without initially giving a reason. Prosecutors and attorneys are limited to four peremptory challenges, however, and lawyers are prohibited by the U.S. Constitution from dismissing jurors based on things like race, gender, and ethnicity.

If an attorney feels opposing counsel has made an exclusion based on those terms, they’re allowed to raise Batson challenges — termed after Batson v. Kentucky — to challenge a peremptory challenge they contend was motivated by race.

But this, Colorado Criminal Defense Bar policy coordinator Tristan Gorman said, is where the safeguards the criminal justice system employs to combat bias become tricky.

That’s because Batson challenges and other precautions to guard against bias primarily target explicit bias — that is, exclusions raised that are tangibly based on someone’s identity. Oftentimes, Gorman said, that’s not the way bias infiltrates judicial proceedings.

“It's not as simple as just ferreting out overt racism, because … if it's that overt, we already have checks in place to deal with it,” Gorman said. “It's the implicit biases that are really more insidious — and again, that's not about intent, it's about biases that we all have that we may not even be aware of, that are influencing what we're doing and saying in the courtroom.”

Gorman said those implicit biases manifest in the courtroom in a couple different ways, but one of the most visible examples are the “race-neutral” reasons for dismissal given in defense of for-cause challenges being questioned via a Batson challenge.

Those race-neutral reasons, Gorman said, often bypass Batson challenges by defending the peremptory challenge in ways that don’t explicitly mention someone’s race, gender, or ethnicity, but which still tend to specifically target people of color.

Examples include challenging a potential juror because they live in a “high-crime” neighborhood, because the juror or someone close to them have had negative experiences with law enforcement.

“A lot of the typical ones that we see have the effect of standing in as a proxy for race,” Gorman said. "Those, while referred to as race-neutral reasons, typically tend to weed out people of color.”

Seeing people of color seemingly consistently dismissed as potential jurors discourages others from responding to jury summons, and contributes to distrust in the judicial system, Gorman said.

“Not only is it going to impact the rights of the accused in individual criminal trials, it’s also going to erode any trust or respect that those people who are being excluded from participation in this legal process, and their communities, have,” Gorman said. “Why would you trust a system that won’t ever allow you to participate?”

The issue created by such “race-neutral” reasons, Gorman said, is one that’ll have to be fixed through legislation.

In March, a majority of the Colorado Rules of Criminal Procedure Committee, which recommends to Colorado’s Supreme Court possible amendments to state criminal judicial proceedings, brought before the bench a new rule that would have implemented measures to automatically treat those “race-neutral” reasons as invalid without further justification.

The changes, committee members wrote in a proposal, were suggested to increase trust, and the number of people of color serving, in the judicial system.

But in a unanimous vote announced to the committee in a two-line email, the Supreme Court rejected the rule. The court later said it needed a “greater consensus” from the committee.

In a minority report released ahead of the vote, committee members Bob Russel, chief deputy district attorney for the Denver District Attorney’s Office’s appellate courts division who co-authored the report, the costs of the proposal outweighed its potential benefits.

Among the costs discussed in the minority report was the toll prosecutors could face in not being able to dismiss with peremptory challenges potential jurors who don’t trust law enforcement, or those who’ve aired beliefs that enforcement officers engage in racial profiling.

“Because they routinely rely on the testimony of police officers, prosecutors have a legitimate reason to seek the removal of potential jurors who express distrust of law enforcement,” authors of the minority report wrote.

They also aired concerns over the lack of data presented which could have demonstrated a disproportionate dismissal of potential jurors of color in Colorado, adding that even if those data had been presented, “we could not confidently estimate the number excused through the influence of implicit bias.”

“Whatever the practice in previous generations, today’s prosecutors do not routinely exercise peremptory challenges on the basis of race. If anything, they tend to be reluctant to challenge people of color,” minority report authors wrote. “No prosecutor wants to invite a Batson objection!”

Russel declined to be interviewed for this story.

Kevin McGreevy, a private defense attorney on the committee who was one of the main authors of the proposal, said in an interview with The Gazette that data on the makeup of a jury, as well as on people of color dismissed via peremptory challenges justified with implicit bias, “are just not kept, period.”

“We were hoping that the Supreme Court would meet the moment of concern over racial injustice, acknowledging implicit bias and decide to do something in a very, very, very small way about the standard for use of peremptory challenge concerning race and ethnicity,” McCreevy added. “They declined to do so.”

The proposal suggested seven specific reasons that are often used to justify peremptory challenges to be treated as invalid, including residency in a high-crime neighborhood, expressions of distrust in law enforcement officers, and “not being a native English speaker.”

Committee members also wrote in the proposal specific circumstances for a judge to consider when a juror’s been excused via a peremptory challenge, including the amount of questioning the challenged juror received, the extent to which they were potentially questioned differently or disproportionately in comparison to other jurors, and whether they were treated differently despite giving similar answers to other jurors.

McGreevy said that based on conversations he and committee members had had with judges and prosecutors from Washington, a state which has adopted a similar rule change regarding peremptory and Batson challenges and served as the model for Colorado’s proposal, verdicts don’t change when the rule change is implemented.

Nevertheless, McGreevy said when the Supreme Court voted the proposal down, they “did not communicate to us any specific area they wanted us to address.” As of right now, McGreevy said, he has no current plans to revive the resolution.

“There’s nothing the Supreme Court said to our committee that makes me think they’re interested in genuinely doing something about this,” McGreevy said. “If the Supreme Court had been interested in adopting a rule, they had the opportunity.”

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