In June 2020, as people across the United States and in communities like Denver and Aurora were protesting the killing of George Floyd by Minneapolis police officers, the Colorado Supreme Court sent a letter to judges and court employees pledging its continued commitment to equal justice and the marginalized.
“We have been starkly reminded that confidence in our system of justice is fragile and not universal — and cannot be taken for granted,” the letter began.
That, to Colorado defense attorneys, signaled an opening to tackle a long-standing problem in trials across the country and that has been acknowledged by high courts in states including Washington, California and Connecticut: an inadequate, decades-old legal standard that has made it easy for attorneys to exclude people of color, especially African Americans, from serving on juries.
But that debate ended before it really began.
In late 2020, a group of judges and attorneys on the Rules of Criminal Procedure Committee — a panel that routinely recommends rule changes to the state Supreme Court — began crafting a proposal similar to a first-of-its-kind reform adopted in Washington in 2018. The committee passed a near-identical proposal on a 7-5 vote in January, which they sent to the court in April. One absent member, the panel’s only person of color, Denver County Court Judge Chelsea Malone, did not vote but sent an email in support of the rule.
A week later, the Supreme Court sent an email unanimously rejecting the proposal.
“If the committee comes up with a similar proposal in the future that has greater consensus, the court will, of course, consider it,” Supreme Court Justice Carlos A. Samour, Jr., a former prosecutor who was born in El Salvador, wrote in a brief email to the committee.
That stunned some committee members, who said the court should have opened the rule to a public hearing process.
“The whole time that I’ve been on the committee, I’ve never seen the Supreme Court essentially, without much comment, reject a rule that’s been proposed,” said Abraham Hutt, a criminal defense lawyer and member of the committee for more than 20 years. “It seems like a complete dodge to me.”
Justices don’t comment publicly on proposed rules outside of a public hearing, according to a spokesman for the Judicial Department.
Bob Russel, a veteran prosecutor with the Denver District Attorney’s Office and a former Colorado Court of Appeals judge who co-wrote the minority opinion opposing the change, declined to be interviewed for this story. Russel said in an email that he believes the proposal can be revised to win the committee’s full support. “This project has not yet concluded,” he said.
The court’s decision did not surprise Joyce Akhahenda, a longtime public defender and board member of the Sam Cary Bar Association, a professional group for African American attorneys which supported the proposal.
“To me, when (the court) said they wanted a consensus, my immediate thought was they want a watered-down version of the rule,” Akhahenda said. “By not opening it up to the public, to me it just means they didn’t want to have to explain why they would not address the issues. This kind of thing, it’s what leads to people’s distrust of the legal community and criminal system.”
A decades-old court precedent
When picking a jury, lawyers can try to dismiss a person from serving based on either a challenge for cause — such as lacking in qualifications, or showing a bias that would prevent them from deciding the case impartially — or by using what’s called a peremptory challenge.
Peremptory challenges don’t require a reason, and defense attorneys and prosecutors each get a certain number of them. The logic is that each side will eliminate jurors who are most likely to disagree with their factual or legal arguments, resulting in a balanced panel.
The U.S. Constitution prohibits making peremptory challenges based on “group stereotyping,” including race and gender. And a 1986 U.S. Supreme Court decision, Batson vs. Kentucky, sets the standard used by courts today for determining whether a party’s challenge of a juror is discriminatory.
The process under Batson goes like this: An attorney has to make a case for why striking an individual juror is discriminatory; the striking party must offer a “race-neutral” justification for dismissing the juror, and a judge then has to determine whether striking the juror showed purposeful discrimination.
Critics say Batson is easy to get around, and challenges are rarely successful. Attorneys just have to come up with another reason, ranging from a juror’s inattentiveness or “low intelligence” to living in a high-crime neighborhood, to name a few commonly cited reasons used to dismiss Black jurors, according to a 2010 study by the Equal Justice Initiative, a nonprofit based in Alabama.
Because the standard doesn’t address implicit or unconscious bias — discrimination that isn’t explicit or necessarily intentional — judges can be reluctant to challenge attorneys on their reasoning.
“It makes it so that the court is trying to make a subjective decision, and often times the court doesn’t want to call somebody racist or say they’re racist,” Akhahenda said.
That was clear in an April 2021 Colorado Court of Appeals ruling. The court found that two people, who appeared to be of Hispanic and Indian descent, had been improperly struck from a jury in a domestic violence case. Judge Jerry N. Jones, in a concurring opinion, made a point of noting that the court’s decision doesn’t mean “that the prosecutor necessarily acted out of racial animus,” which is “impossible to know.”
That ruling, however, was later reversed by the Court of Appeals in favor of a new one issued in July that made a completely different argument, with no reference to jury selection issues, according to Colorado Politics.
Jonathan Booker, current president of the Colorado Hispanic Bar Association and a private criminal defense attorney, said he mostly represents Hispanic clients and “very rarely” sees a jury pool reflective of his clients. In practice, attorneys often must prove a pattern of discriminatory juror dismissals for a Batson challenge to stick, Booker said.
“You’re already starting with very few people of color in the jury pool, so when there’s a challenge, you have to show there’s a pattern of discrimination in the selection process….it’s difficult to string those challenges together,” Booker said.
There doesn’t appear to be data kept in Colorado on how many minority jurors are excused from serving on juries through peremptory challenges. But high courts in a number of states have acknowledged the legal standard under Batson is inadequate, including Washington, California and Connecticut. In a 2013 decision, State v. Saintcalle, which became the impetus for Washington’s landmark reform, the state’s Supreme Court called for change.
“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection,” wrote Washington Supreme Court Justice Charlie K. Wiggins. “In part, this is because Batson recognizes only ‘purposeful discrimination,’ whereas racism is often unintentional, institutional or unconscious.”
The Washington Supreme Court cited a number of studies, including the Equal Justice Initiative report, which examined jury selection in eight southern states. The report found “widespread discrimination” against Black prospective jurors, and in some counties, as many as 80% of all African Americans who qualified to serve as jurors were excluded.
A June 2020 Berkeley Law report found efforts to overturn dismissals of Black or Latino jurors rarely succeed. The study examined 683 cases decided by the California Courts of Appeal from 2006 through 2018 in which a trial court denied a defense attorney’s challenge to the striking of a Black or Latino juror. In nearly 72% of those cases, prosecutors used their challenges to remove Black jurors, and Latino jurors in about 28% of cases. Appellate courts found errors in only 2.6% of those decisions, according to the report.
Distrust of law enforcement and the criminal justice system, or knowing someone who has been involved in the criminal legal system, was another reason prosecutors commonly and successfully used to exclude potential Black and Latino jurors, according to the report.
A “radical departure” from existing law
The proposal’s rejection in Colorado comes as a number of states are considering reforms similar to Washington’s.
The California legislature passed a bill last year, Assembly Bill 3070, which will take effect in criminal trials in January 2022 and in civil trials in January 2026. In Arizona, the state’s Supreme Court recently closed a public comment period on similar reform, which will be heard by the court next month. Lawmakers in Massachusetts are currently considering a law, Senate Bill 918, to address racial disparities in juries. And in December 2020, a Connecticut task force on racial discrimination in jury selection delivered a report to the state’s Supreme Court in response to its call for an examination of the issue.
Advocates in Colorado based their proposal on the standard adopted by Washington’s Supreme Court, known as General Rule 37. It’s a “radical departure” from existing law, Booker said, and appears to be the first time Colorado has considered such a change.
The proposal to amend Colorado’s Criminal Procedure Rule 24 would have:
- Dropped the requirement that courts find purposeful discrimination to deny a peremptory challenge
- Changed the legal standard to whether an “objective observer,” or a person who is aware of implicit bias, “could view race or ethnicity as a factor” in challenging a juror
- Established reasons to excuse a juror that are considered to be “presumptively invalid,” such as a distrust of law enforcement, receiving government benefits or not being a native English speaker
The main author of Colorado’s proposal, attorney Kevin McGreevy, declined to be interviewed about the committee’s internal debate, but said in an email that the Colorado Supreme Court “missed an opportunity” to address discrimination in the court system and open a public debate on the issue.
In his report to the Colorado Supreme Court, McGreevy argued that the proposal’s list of “presumptively invalid” reasons for excusing a juror would make attorneys more aware of arguments for excluding jurors that “commonly mask implicit racial bias.” In those cases, attorneys making a peremptory challenge are still entitled to provide additional reasons to support the exclusion of a juror.
The proposal also makes it easier for attorneys to challenge a juror’s exclusion. Instead of having to prove a pattern of discrimination, courts can look at challenges to individual jurors, Booker said. “It takes away the burden from the objecting party.”
Russel and Judge Morris Hoffman, who retired from the bench earlier this year, authored the minority report objecting to the proposed change. They urged caution in adopting such a sweeping change, citing a lack of data or evidence, other than anecdotal reports, of the efficacy of the Washington rule.
Their report also questioned the extent to which implicit bias currently impacts jury selection in Colorado.
“Whatever the practice in previous generations, today’s prosecutors do not routinely exercise peremptory challenges on the basis of race,” the report states. “If anything, they tend to be reluctant to challenge people of color…No prosecutor wants to invite a Batson objection.”
The “objective observer” standard under the proposed rule “could be employed to nullify almost any peremptory challenge” and result in uneven application of the law, they argued.
Prosecutors were especially concerned about language making distrust of law enforcement a “presumptively invalid” reason for excluding a juror, according to a memo Russel circulated among committee members in January, where he describes the concerns of prosecutors he surveyed for feedback from the 2nd and 18th Judicial District. Those prosecutors largely agreed that the change would “trigger more irrational acquittals and 11-1 verdicts because juries would contain more people who are biased against police witnesses,” Russel wrote.
Akhahenda, who is Black, said that’s simply a fact of life for many people of color and the experience they bring to juries.
“There are jurors who express … distrust of law enforcement. They don’t necessarily believe in the (system), or think it’s fair, and they’ve had bad interactions with law enforcement,” said Akhahenda. “I’ve had that, my family members have that — but even when they say they can be fair, ‘I think I could put those issues aside and judge a case,’ they’re kicked off a jury. It starts to become where a certain segment of the population that has certain experiences is then removed from juries.”
Prosecutors should be able to excuse jurors of any race based on bias that may “prevent a fair evaluation of police testimony,” Hoffman and Russel wrote.
“It is wrong and unfair to presume that a person of color is likely to harbor bias against the police…It is equally wrong and unfair to presume that a person of color is immune from harboring such bias,” according to the minority report.
Not all prosecutors hold that view, with some prosecutors from the 2nd and 18th Judicial Districts telling Russel they believe the rule would be more beneficial than harmful, according to Russel’s memo.
The minority opinion also argued for a different approach to tackling the pitfalls of peremptory challenges: eliminating them altogether. That view has been shared by Washington’s Supreme Court Justice Steven C. Gonzalez as well as the late U.S. Supreme Court Justice Thurgood Marshall, who advocated for eliminating peremptory challenges in his concurring opinion in the Batson case.
The proposed rule would “only make the selection process longer, more cumbersome, less even-handed, and no more likely to ensure either diversity or impartiality,” Hoffman and Russel wrote.
CORRECTION: This story was updated on Nov. 11, 2021 to reflect that the Rules of Criminal Procedure Committee sent the proposed rule change to the Colorado Supreme Court in April.