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Colorado's justices escalated their frustration on Monday with the existing framework for evaluating race-motivated dismissals of jurors in criminal trials, months after the state Supreme Court also invited lawmakers to do their part to fix the problem. Under longstanding U.S.
Supreme Court precedent, intentional race-based discrimination in jury selection is unconstitutional. Normally, parties may exercise "peremptory strikes" to remove jurors without citing a reason. But when a prosecutor tries to strike a juror of color, the defendant may raise a "Batson challenge," named after the Supreme Court's 1986 Batson v.
Kentucky decision. Such a challenge forces the prosecutor to justify the removal with a "race-neutral" reason. In the case of Phillip Romero out of Weld County, in which a prosecutor removed a Hispanic juror because he "appeared very disinterested," the state's Court of Appeals ordered a new trial on the grounds that nothing appeared to corroborate the prosecutor's characterization of the man.
In a Sept. 9 opinion , the Supreme Court reversed that decision while simultaneously delivering a message about the inadequacy of Batson challenges to screen out actual racial discrimination. "While animated by laudable intentions of unassailable importance, this landmark decision has been difficult and unwieldy to apply both at trial and on review," wrote Justice Carlos A.
Samour Jr. The court, he added, is "keenly aware of the frustrations that are part and parcel of its methodology. Still, we are bound by, and thus cannot sidestep, Batson.
" Samour's opinion for a unanimous court comes amid a continued struggle with the justices' own appetite for racial bias reform. In a pair of decisions before the court's summer break, three members — including Samour — attempted to shift the burden onto lawmakers to eliminate peremptory strikes altogether. Critics of the entreaty pointed out the Supreme Court could easily place stricter guardrails around the dismissal of jurors of color, and there is a pending rule change to do just that.
The court has been waiting to act on the proposal until it clears its docket of all pending Batson challenge cases, of which Romero's was the final one. The court's latest decision, however, telegraphs an uphill climb for any judicial reforms to jury selection. Students from Pine Creek High School ask the justices of the Colorado Supreme Court questions after watching them hear arguments from two cases in the high school auditorium on Nov, 17, 2022.
Pictured from left to right are Justice Richard L. Gabriel, Justice Monica M. {span}Márquez, Chief Justice Brian D.
Boatright, Justice William W. Hood III and Justice Melissa Hart.{/span} At Romero's assault trial in Weld County, the prosecution briefly spoke with one of the two Hispanic members of the jury pool, identified as Juror F.
The prosecutor, who the district attorney's office identified as Lillie Parker, then moved to strike him. As a race-neutral reason, Parker said the man "appeared very disinterested" and had a "wandering mind." Batson challenges proceed in three steps: First, a party will state a plausible case of racial discrimination.
Second, the opposing party must supply a race-neutral reason for striking the juror. Finally, the trial judge must weigh whether purposeful racial discrimination is likely occurring. Neither the defense nor District Court Judge Shannon Lyons corroborated the prosecutor's race-neutral reason.
In fact, Lyons said he "just didn't see anything" to suggest the juror was disengaged. Nonetheless, Lyons allowed the prosecution to strike the juror, noting he did not "have an independent reading on whether he was truly disinterested." A three-judge panel for the Court of Appeals ordered a new trial.
Judge Neeti V. Pawar, writing for herself and Judge Jaclyn Casey Brown, found it problematic that Lyons credited the prosecution’s explanation, "especially where all other relevant portions of the record tend to undermine the credibility of the unsupported and unexplained subjective impression." Colorado Court of Appeals Judges Stephanie Dunn, Neeti V.
Pawar and Grant T. Sullivan listen to the case of Strange v. GA HC Reit Liberty CRCC, LCC at Fort Lupton High School on Tuesday, April 2, 2024 in Fort Lupton, Colorado.
The Colorado Court of Appeals and Supreme Court hold "Courts in the Community" events for students to learn about the justice system and hear real cases. (Rebecca Slezak For The Denver Gazette) Then-Judge David J. Richman dissented, arguing the question was actually whether any evidence contradicted the prosecutor's rationale.
He added that nothing required the prosecutor to give proof of why the juror seemed disinterested. The subsequent oral arguments before the Supreme Court in May turned into a free-wheeling discussion about the elimination of peremptory strikes, the difficulty of ferreting out intentional bias and the inadequacy of Batson challenges. "We’re applying this rule from Batson to a system where, by definition, people are allowed to strike jurors for no reason," Samour observed.
In the opinion, Samour concluded the Court of Appeals' majority deviated from the rules of the road. The appellate judges disregarded Lyons' conclusion that the prosecution had provided a race-neutral reason. Further, they treated the lack of corroboration about Juror F's demeanor as a factor that undermined the prosecutor.
In reality, the ultimate burden was on the defense to demonstrate discrimination. However, Samour warned trial judges to clearly explain why they do not believe racial discrimination is occurring, given the appellate courts' obligation to give significant weight to that initial decision. "First, we urge trial judges again to make explicit demeanor and credibility findings," he wrote.
"The lesson here is that a trial judge’s sound decision whether or not to credit a race-neutral reason is a rather consequential determination with critical importance upon review." Colorado Supreme Court justice Carlos A. Samour, Jr.
takes notes during oral arguments of the Arnold R. Martinez v The People of the State of Colorado case during Courts in the Community on Thursday, Oct. 26, 2023, at Gateway High School in Aurora, Colo.
(Timothy Hurst/Denver Gazette) Barb Snow, the attorney for Romero, said she would need to discuss the opinion with her client, but appreciated the Supreme Court's "willingness to address very practical limitations of jurisprudence intended to prevent racial (and other) discrimination." Since last year, a proposed rule change has been sitting at the Supreme Court that would make it harder for prosecutors to strike jurors of color for reasons that, while not explicitly racial, nonetheless have correlated with race. Broadly, the change would make it invalid by default to strike jurors who express distrust of police and also require corroboration from other parties when a juror's demeanor is the reason for a strike.
In June, the court signaled in a pair of decisions that it did not seem prepared to deem skepticism of police a forbidden justification for removing jurors of color. Samour's opinion did not indicate whether the justices are similarly resistant to placing guardrails around demeanor-based explanations, but he emphasized that neither the U.S.
nor the Colorado supreme courts have required corroboration for demeanor-fueled strikes. Morris B. Hoffman, a retired Denver District Court judge who has advocated for abolishing peremptory strikes , said the state Supreme Court could crack down on racial discrimination by relying on the Colorado Constitution's own protections or by passing the advertised rule change.
"But the court is also clearly begging, this time in a unanimous opinion, that the legislature relieve them of this meddlesome Batson by getting rid of peremptories," he told Colorado Politics by email. "I don't pay much attention to politics, but I know most lawyers LOVE peremptory challenges and most judges HATE them, and therefore can't imagine that the lawyer-lobbied legislature will ever get rid of them." The case is People v.
Romero..
