In an “exceedingly rare” move, as one lawyer described it, the Court of Appeals has withdrawn a prior decision that found an Arapahoe County judge incorrectly handled the dismissal of two jurors of color, and issued a new opinion decided on different grounds entirely.
On April 8, a three-judge appeals panel decided by 2-1 to grant Derek Ramon Robinson a new trial because then-District Court Judge Natalie T. Chase should have upheld a challenge to the prosecution’s dismissal of two jurors of color. Prosecutors did not seek to excuse a white woman who had provided similar answers during jury selection, the majority found, and Chase had improperly interjected her own non-racial justification for excusing the jurors of color.
The defense had raised a “Batson challenge,” named for the U.S. Supreme Court's Batson v. Kentucky decision of 1986 that barred the exclusion of people from jury service based on their race. In the appellate panel’s decision, Judge Anthony J. Navarro wrote for the majority, while Judge David H. Yun dissented. Judge Jerry N. Jones joined Navarro, but wrote separately to say, “I think this is a very close case.”
The Colorado Attorney's General Office subsequently petitioned the panel for a rehearing of the case, claiming the majority based its decision on incorrect facts and assumptions.
Then on Thursday, the appellate judges issued a new opinion that made no reference to the Batson challenge, and withdrew their April 8 decision. While the opinion did not explain why the judges changed course, the outcome remained the same: the panel ordered a new trial for Robinson, this time on the grounds that the trial court allowed improper expert testimony about domestic violence.
The move prompted multiple prosecutors and defense attorneys to recall very few, if any, instances where the Court of Appeals had behaved in a similar manner.
“We can only comment that it is rare that (it) happens,” said Maureen Cain of the Office of the State Public Defender, which handled Robinson’s case.
“For a petition for rehearing to be granted is rare, and for the Court of Appeals to change their mind is exceedingly rare,” added longtime defense attorney Craig L. Truman.
David Lane, a civil rights and criminal defense lawyer who on Thursday won an appeal in a different matter involving Chase, could not remember the Court of Appeals ever handling a case in this fashion, but speculated the judges may have been mindful of the subject matter.
“Batson is laden with political undertones,” he said. “It’s unfortunate if the three-judge panel gave a Batson win to a defendant — it kind of smacks of politics that they want to give the defendant a win, but they’re not going to say racism was involved in any way, shape or form.”
Batson challenges happen during peremptory strikes, in which the parties may excuse a certain number of people at jury selection without a reason. Currently, Batson challenges can also occur based on jurors' gender and, in some places, sexual orientation.
A jury convicted Robinson, who is Black, in 2016 of the attempted murder and assault of his then-girlfriend. He is serving a sentence of 48 years in prison. The original appellate decision stressed that the judges were not accusing the prosecutors of acting based on racial motivations.
"Of course, no prosecutor is getting up there and outright saying, 'I am striking this person because of their race.' But there is always some sort of alternative rationale for dismissing a juror of color, and it takes place in coded language which may not be conscious in the prosecutor's mind," Tristan Gorman, the legislative policy coordinator with the Colorado Criminal Defense Bar, told Colorado Politics in April.
Although the Court of Appeals infrequently hears cases involving Batson challenges, a separate three-judge panel issued an opinion on Thursday declining to review a Jefferson County judge's handling of a Batson challenge on the grounds that the juror of color had already left the courtroom by the time the defense made the challenge.
A spokesperson for the Judicial Department did not respond to an inquiry about why the judges in Robinson's appeal chose to withdraw the opinion on the Batson challenge, but said the Court of Appeals may, when confronted with a rehearing request, deny it, deny it while modifying the opinion, or grant it and issue a new opinion. The April 8 opinion, as a result, now has no legal weight.
However, the withdrawal of the panel's opinion is not the only oddity in Robinson's case. One week after the appellate panel first overturned Robinson's convictions, the state Supreme Court accepted Chase's resignation as a judge. Chase, who is white, admitted to using the N-word in front of court employees and other official misconduct.
Colorado Springs criminal defense lawyer Elizabeth A. McClintock argued the attorney general's office should stop attempting to justify Chase's actions, given the judge's admitted racial bias.
The appellate courts "are not going to let her cases stand, one way or the other. And rightfully so," McClintock predicted.
A spokesperson for Attorney General Phil Weiser had no comment when asked why his office continues to defend Chase's handling of the case. Weiser, elected in 2018, has previously made comments about a need to advance racial justice.
The case is People v. Robinson.