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The Colorado Supreme Court is weighing what to do with the conviction of a man who kidnapped, raped and attempted to murder a teenager in Denver decades ago, but whose trial may have been rendered unfair by excluding a juror of color because of the juror’s race.

On Tuesday, members of the Court heard oral arguments in the case of Ray Ojeda, who is serving a 144-year sentence. The case implicated a “Batson challenge,” named for a landmark U.S. Supreme Court decision that prohibits racial discrimination in jury selection. A lower court found a violation of the Batson ruling in Ojeda’s case and ordered a new trial, prompting the Colorado Attorney General’s Office to argue that the justices should defer to the trial court judge’s determination that no discrimination had occurred.

But Senior Assistant Attorney General Kevin E. McReynolds ran into critical questioning when he tried to dispel any notion that the original Denver prosecutor was motivated by race when she asked to dismiss a Latino juror, in part, because he was “a person of color.”

“We’re parsing through the transcript and when people are speaking extemporaneously, they can be clumsy,” McReynolds said.

“You keep calling it clumsy. But wasn’t it just unusually candid?” responded Justice William W. Hood III.

Courts have grappled with Batson challenges since the U.S. Supreme Court’s Batson v. Kentucky decision in 1986. The defendant, a Black man, faced an all-white jury after the prosecutor used the procedural tactic known as a peremptory strike to excuse all Black people from the jury pool without needing to give a reason.

The decision barred such a practice for not only violating the Constitution, but because it undermined public confidence in the justice system. Instead, the Supreme Court laid out a three-part test for determining if such a strike is illegal.

If one party plausibly challenges the attempt to remove a juror on suspected racial grounds, then the other party has the opportunity to lay out “race-neutral” reasons for its decision. The party making the Batson challenge may respond to that information, and then the trial judge will decide whether purposeful discrimination has likely occurred.

But Batson challenges are fuzzy, in part because it is difficult to pinpoint when a lawyer is intentionally taking a person's race into account. They are also potentially uncomfortable.

“Judges are reluctant to make a finding of purposeful discrimination because these are lawyers they are going to work with again,” said Ann Roan of the Colorado Criminal Defense Bar.

'He may steer the jury'

In June 1997, a man driving a truck stopped a 15-year-old girl who was walking home and ordered her at gunpoint to get inside. He took her to 64th Avenue and York Street near the South Platte River and hit her with the gun. He then raped her, shot her and tossed her into the river.

The case went cold, and the attorney general’s office blamed a filing error for the forensic evidence going missing until 2011. Around that time, Ojeda was arrested in Texas for a separate crime and provided a DNA sample. Denver authorities learned in 2013 of a match to the DNA collected from the 1997 case, and the victim identified Ojeda through his tattoos.

Ojeda’s defense was one of mistaken identity, and he challenged the old evidence. Nonetheless, a jury found him guilty during a six-day trial in 2015.

His appeal centered around one Hispanic man in the jury pool, identified only as R.P. On a questionnaire, R.P. indicated that he or a family member had had a bad experience with police, noting “racially profiling and culturally inappropriate treatment.” R.P. also mentioned that he and his wife had been the victims of sexual assault.

He underwent questioning in the courtroom, and said the sex assaults would not influence his judgment. R.P. also volunteered he had “a little bit of bias against the system itself.” He said he knew the justice system was “disproportionately filled with people of color and folks with mental disabilities.” Finally, he rated the system a “four” out of 10, and commented on the age of the case by saying, “something went awfully wrong for so many years to have gone by.”

Based on those responses, the unnamed prosecutor attempted to excuse R.P. for cause, citing his low confidence in the justice system and his admitted bias.

Then, she added: “when you look at that in-court behavior against what is clearly his commitment to his job, in terms of serving people of color and what he talked about in terms of the defendant being a person of color — he is himself a person of color — I thought that the totality of the record indicated that he has a distinctive leaning.”

District Court Judge Kenneth M. Laff denied the request, saying R.P. was “certainly entitled to believe that people of color are not well-served in our criminal justice or medical system.”

The prosecutor then used a peremptory challenge to excuse R.P., and Ojeda’s attorney cited Batson. In putting forward a nonracial justification, the prosecutor said she was looking for jurors who were “establishmentarian” and who favored the justice system.

Once again, she alluded to R.P.’s race. She called him a polished and educated person who could be persuasive in the jury room.

“And the fact that the defendant is a Latino male," she continued, referencing R.P.’s racial profiling comment, "I think that he may then steer the jury towards a race-based reason why Mr. Ojeda, you know, was charged in the case.”

Laff decided the race-neutral explanations were sufficient to deny the challenge. On his own, he mentioned R.P.’s history with sex assault and concerns about the age of the case, while also stating R.P. had “an anti-law enforcement bend.”

A reversal on appeal

Prevailing on a Batson challenge is itself a challenge. North Carolina Criminal Law, a publication of the University of North Carolina at Chapel Hill, reported the state's Supreme Court only found sufficient evidence for a plausible Batson challenge in fewer than 10% of cases reviewed.

A coalition of criminal justice and civil rights groups referenced a 1995 handout for district attorneys that advised prosecutors to use justifications ranging from a juror's "inappropriate dress" to "communication difficulties" to avoid the Batson tripwire.

Within the past month, the Colorado Court of Appeals upheld two convictions for defendants who raised Batson challenges. In Arapahoe County, a judge allowed the prosecution to excuse a Black juror after the prosecutor said they had not exhibited a pattern of racial strikes.

"[T]o make a pattern you’ve got to start somewhere," the judge in that case quipped. "We’ll see what happens next.” Only after the dismissal did the prosecutor claim the Black juror's medical condition was the reason for the strike.

In the second case out of Weld County, the trial judge allowed for the removal of a Hispanic juror — the second Hispanic juror, in fact — on the grounds that he had a criminal history and “he was not giving very articulate answers." The Court of Appeals also upheld that ruling, even though the judge had not allowed the defense to respond to the prosecutor's claims.

Ojeda's appeal represented the uncommon instance in which a three-member panel for the appellate court found sufficient grounds to indicate discrimination. In a September 2019 decision, in which all three members took the unusual step of authoring separate opinions, Judge Terry Fox wrote for the majority that the prosecutor did not treat R.P. similarly to other white jurors who shared his views or characteristics.

"That the prosecutor later tried to characterize her objections to Juror R.P.’s service as objections to his anti-establishment bent is of no moment and smacks of pretext," she explained.

Judge Elizabeth L. Harris went further, saying that in her view, the prosecutor's reasoning for getting rid of R.P. was entirely wrapped up in the juror's race. The attorney's justification, Harris wrote, "related exclusively to Juror R.P.’s 'distinctive leaning' and boiled down to a simple proposition: As a 'person of color' who had concerns about the criminal justice system, Juror R.P. was likely to 'steer the jury toward a race-based reason why Mr. Ojeda,' who was himself 'a person of color,' was 'charged in the case'."

The dissenting judge, Robert D. Hawthorne, did not believe the panel should overturn Ojeda's convictions outright, but agreed with the majority that Laff was wrong to supply his own explanation for justifying the dismissal of R.P.

A plea for reform

In oral arguments before the Supreme Court, McReynolds, with the attorney general's office, reiterated that Laff was in the best position to evaluate the prosecutor's intentions in the moment. Not all members of the Court accepted that argument at face value.

"The prosecutor said out loud, 'because he’s a Latino male, he’ll have influence.' How do we have a race-neutral reason?" asked Justice Richard L. Gabriel.

"The impression the prosecutor took away," McReynolds contended, "was this was a person who had great convictions about this work, and their impression was that he would take a role as an advocate on those racial justice issues that were important to him."

But, cut in Justice Monica M. Márquez, "the prosecutor then linked that to him being Latino. She’s the one who made that connection."

Gabriel seconded that interpretation, saying it would be improper for prosecutors to remove a potential juror based on a racial assumption. "If he said, 'I am biased against police because I am Latino,'" Gabriel hypothesized, "that strikes me as different than the prosecution injecting it."

Ojeda's attorney, public defender Elizabeth Griffin, told the Court that the record "overwhelmingly" established discrimination.

To send the case back to the district court six years after the trial for a more in-depth review "looks like we’re just hoping a judge, any judge at this point will do, will say some magic words and make it go away because it’s tough," she argued.

Griffin suggested that the Court take action more broadly on Batson challenges, such as adopting the same rule change Washington made in its state court system in 2018, which now asks whether an objective observer would view race or ethnicity as a motivating factor in a juror strike. The rule also enumerates certain justifications — like those listed in the prosecutors' handout to circumvent Batson — as presumptively invalid, as they may be stand-ins for a person's race.

The attorney general's office rejected that call, and said if the Court were to impose a change, it should abolish peremptory challenges altogether. (The Colorado Sun previously reported that the state Supreme Court rejected in January a proposal from a committee to adopt the Washington rule.)

The justices will decide not only whether the Court of Appeals was wrong to order a new trial for Ojeda, but also the degree to which racial considerations may factor in to Batson challenges. Roan, with the criminal defense bar, said it would be unjust for the Supreme Court to uphold the ability of prosecutors to exclude Black and brown people from juries because, by nature of their race, they may have less flattering views of the criminal justice system.

"What I fear if the Court of Appeals is not affirmed in this case is that people of color in Colorado are going to get the message that if they want to serve on a jury," she said, "there is no place for them if they tell the truth about their lived experiences."

The case is People v. Ojeda.

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