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A proposal from Democratic state lawmakers to address “implicit” or unintentional racial bias in how people are excluded from Colorado jury service is stalled after facing unanimous opposition from the state’s district attorneys. 

Proponents of Senate Bill 128 argue it would address what they say is a longstanding problem of people of color being disqualified from serving on juries on racial pretext, using reasons like a person’s distrust of law enforcement or English fluency. They say the current legal standard makes it too easy for attorneys to dismiss a juror as long as they don’t show purposeful discrimination. 

“Minority jurors have continued to be excluded from service on juries because judges accept race-neutral reasons, such as a jurist’s hairstyle, language, body language, skepticism about whether police treat people fairly … and other explanations,” Sen. Pete Lee, a Colorado Springs Democrat and prime sponsor of the legislation, said at a hearing. 

But the bill will need to overcome opposition from all 22 of the state’s district attorneys, who wield a lot of power at the Capitol, to advance.

At a meeting of the Senate Judiciary Committee on Feb. 23, several district attorneys, both Republicans and Democrats, argued the bill would limit the ability of attorneys to properly vet potential jurors, be too expensive to implement and skew juries to be anti-law enforcement. 

“I find it interesting that this bill as drafted only applies to criminal trials, and the one common denominator that exists in every criminal trial is a law enforcement officer,” Weld County District Attorney Michael Rourke, a Republican, said. “The inability to exercise a peremptory challenge against one who expresses distrust for law enforcement will virtually ensure that at least one member of our jury will be voting for acquittal.”

Denver Democratic Sen. Julie Gonzales, the bill’s other prime sponsor in the Senate, said she and Lee postponed a vote on the bill to consider changes and find “a path forward.” 

The current version of the measure would remove a requirement that a judge find “purposeful discrimination” in order to determine a juror was improperly removed because of their race. It would no longer allow attorneys in criminal cases to dismiss a juror by citing reasons like a distrust of law enforcement, living in public housing, having a child outside of marriage, receiving state benefits or speaking English as a second language. Instead, an attorney would have to offer another reason to disqualify the person from serving. 

The bill represents the second attempt to enact such a policy after the Colorado Supreme Court declined to hear a similar proposal, modeled after a reform in Washington state, last year.  

MORE: Racial discrimination still exists in jury selection. Colorado’s Supreme Court rejected a proposal meant to fix that.

Ann Roan, a criminal defense attorney and retired public defender who helped draft the bill, said prosecutors’ arguments against the bill are an oversimplification. 

Attitudes toward law enforcement was specifically included in the measure because it has historically been used to disqualify potential jurors of color, she said. 

Roan said a distrust of police alone shouldn’t be grounds to get rid of a potential juror. Attorneys on both sides are still able to ask follow-up questions that would show whether a juror’s point of view would improperly prejudice their ability to judge the facts of the case. 

“This bill has been misleadingly characterized as anti-law enforcement,” Roan said. “And I think that’s a pretty significant and deliberate misread of the historical fact that people of color have been excluded from jury service in this country for over 100 years.” 

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How are juries picked? 

When selecting jurors, lawyers on both sides of a case 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. If an attorney wants to dispute a peremptory challenge by arguing a juror was removed for discriminatory reasons, the court would apply a test under a 1986 U.S. Supreme Court decision called Batson vs. Kentucky.

To overcome a Batson challenge, the striking party must offer a “race-neutral” justification for dismissing the juror, and a judge then must determine whether striking the juror showed purposeful discrimination. 

Critics say the “purposeful discrimination” requirement means Batson is easy to get around, and challenges are rarely successful. The measure would eliminate the requirement that a judge find deliberate discrimination and instead determine whether an “objective observer” could view the race or ethnicity as “a factor” in the peremptory challenge. 

Joyce Akhahenda, a state defense attorney since 2005, poses for a portrait on Tuesday, July 20, 2021, in Denver. “Batson issues are definitely a problem – kicking jurors off because of race happens all the time. But it’s hard enough just to get people of color to be on juries,” Akhahenda said. “There’s a difference between what prosecutors want and what the defense community wants, and unfortunately what that can lead to is just something with no meaning and no effect.” (Olivia Sun, The Colorado Sun)

Joyce Akhahenda, chair of the Sam Cary Bar Association, a group for African American attorneys in Colorado, said the current standard can put judges in an awkward position. 

“People immediately go on the defensive, and the issue becomes about whether the attorney being challenged is a racist as opposed to the reasons why they made the challenge,” Akhahenda said. 

At the Judiciary Committee hearing, prosecutors questioned whether the issue could be addressed with more training. They also pointed to a nonpartisan fiscal analysis that put the cost of the bill at $1.3 million a year, although proponents also dispute that estimate. 

Robert Russel, head of the appellate division at the Denver District Attorney’s Office and a former appellate court judge, said he would consider supporting an amended bill where race would need to be a “significant factor” in a juror’s dismissal to uphold a challenge, rather than simply “a factor.” Russel opposed a similar proposal when it came before a judicial committee last year. 

“I think it’s far from clear that (the bill) will increase the participation of people of color on juries,” Russel said at the hearing.

Nationwide attempts at reform  

The bill comes after Washington and California passed similar laws to address unintentional or “implicit” bias in how juries are picked. 

Advocates that implemented those laws in Washington and California have pointed to a 2010 study of southern states and appellate cases in California that showed widespread use of peremptory challenges to dismiss Black jurors. 

It’s difficult to assess how widespread the problem is in Colorado as there doesn’t appear to be data available on the demographics of juries and how peremptory challenges are exercised. Court decisions on Batson issues are also rare, although there are some recent examples. 

The Ralph L. Carr Colorado Judicial Center is seen on Tuesday, July 20, 2021, in Denver. (Olivia Sun, The Colorado Sun)

Last month, the Colorado Supreme Court overturned a man’s conviction after determining a judge mishandled a Batson challenge. The judge erred by offering his own reasoning for why excusing a Hispanic juror from a case with a Hispanic defendant was justified, despite a comment by the prosecutor directly referencing the juror’s race, Colorado Politics reported. 

That spurred defense attorneys in Colorado to bring a similar policy before a panel of judges and attorneys, known as the Rules of Criminal Procedure Committee. Last year, the committee voted 7-5 to recommend a similar proposal to the Colorado Supreme Court for adoption. The court declined to hear the proposal, but said it would consider a similar policy in the future if the committee could reach “greater consensus.” 

Tom Raynes, executive director of the Colorado District Attorneys’ Council, said prosecutors would prefer the rules committee handle the issue or that sponsors delay the bill a year, when more data will be available on how the changes have impacted courts in Washington and California. 

Goan, the criminal defense attorney, believes it will be “very difficult” for the proposal to move forward given the united opposition from district attorneys. 

Akhahenda, meanwhile, believes the issue is too urgent to be left up to training programs. 

“We should want to have a representative community that encompasses everyone’s lived experiences and not just a select few,” Akhahenda said. 

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Thy Vo

Thy Vo is a freelance journalist and former Colorado Sun staff member. Twitter: @thyanhvo