Some Colo. Justices Call For Nixing Peremptory Strikes

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Three Colorado Supreme Court justices said this week that eliminating peremptory challenges would help remove "the taint of impermissible discrimination" from the jury selection process, writing in two cases involving the dismissal of Black jurors that the strikes often facilitate racism that can be near impossible for a court to address.

In a concurrence published Monday, Colorado Supreme Court Justice Monica M. Márquez wrote that the existing legal test for determining whether a juror was wrongfully struck based on race or gender discrimination has too many inherent flaws to be salvaged. Instead, Colorado should consider joining Arizona in only allowing parties to excuse a potential juror based on actual bias, Justice Márquez wrote in an opinion joined by Justices Melissa Hart and Carlos A. Samour Jr.

Unlike challenges for cause, which require an attorney to show a potential juror has a bias that prevents them from being fair or impartial, parties can exercise a peremptory strike for almost any reason. Peremptory challenges can often "facilitate racial discrimination" in jury selection by allowing parties to rely on gut feelings and snap judgments about a juror, Justice Márquez wrote.

"Absent unusual candor from counsel, it can be difficult, if not virtually impossible, for a trial judge to discern whether a strike was motivated by race, particularly if unconscious bias is at work," she wrote.

Eliminating the statutory right to peremptory challenges — which would require action by state lawmakers — would still allow parties to challenge jurors for cause and "force deeper (and more open) exploration of jurors' actual biases," Justice Márquez wrote.

"But attorneys would no longer be allowed to remove prospective jurors who have otherwise been deemed fair and impartial ... based solely on instinct, hunch, or prejudice (conscious or unconscious)," she wrote.

The recommendation comes as the state Supreme Court has openly struggled with the current legal standard for parsing racial bias in jury selection, established under a 1986 U.S. Supreme Court ruling in Batson v. Kentucky .

Colorado justices last year heard a proposed rule change, modeled after one in Washington state, that would create a number of "presumptively invalid" reasons to strike a juror, such as expressing a distrust of law enforcement or not being a native English speaker. Proponents say the change would eliminate common pretextual reasons for dismissing Black people and other people of color from juries that can be hard to prove under the Batson framework.

Arizona's Supreme Court opted for another route, eliminating peremptory challenges in all jury trials in 2022.

On Monday, Colorado justices acknowledged the proposals and that it's not always clear under Batson "when a peremptory strike is based on a juror's race" in a unanimous opinion by Justice William W. Hood III in the case of Raeaje Resshaud Johnson.

The court reversed Court of Appeals panel decisions that sustained challenges to juror strikes in Johnson's domestic violence case and that of another man, Sterling Dwayne Austin, who is accused of murdering his girlfriend. Both Johnson and Austin are Black.

In the case of Johnson, who challenged the striking of a Black woman who said police are disrespectful to "certain racial identities," justices found that distrust of police isn't an inherently race-based characteristic. Some people of color don't hold that view at all, justices said.

"However prevalent the distrust of law enforcement might be in some communities, the fact remains that it is not an inherent characteristic of any race. Assuming otherwise is simply another form of inappropriate stereotyping," Justice Hood wrote, finding the prosecutor met the low threshold set by Batson's second step to show the reason for the strike was facially race-neutral.

But the trial court made no findings on Batson's last step, where the court must consider if an objecting party has established purposeful discrimination, the opinion said.

The "dearth of information" is further complicated by the fact that the woman, known as Juror M, said she believed she could be fair and impartial despite her experiences with law enforcement, the justices said, concluding the high court lacked enough information to review the trial court's determination that the strike of Juror M wasn't purposefully discriminatory.

Appellate courts are also required to give deference to a trial court's findings at this step, Justice Hood said.

The lower court also departed from precedent when it sustained Johnson's allegation of purposeful discrimination, the justices said, finding it applied the wrong standard. The panel should have considered whether the peremptory strike on Juror M was "motivated in substantial part by discriminatory intent," the justices said, vacating the opinion and ordering the panel to redo its analysis based on that test.

The high court also cautioned lower courts not to confuse its different goals in each step of Batson's test. At step two, the inquiry is focused on the striking party's stated reasons for the strike.

"Although a juror's bias may derive from her experiences as a person of color ... that doesn't convert the striking party's reason for excusing her into a race- or gender-based reason," Justice Hood wrote. "This is not to say that a court should ignore the plausibility of the striking party's explanation or the disparate impact it may produce, but such considerations are reserved for Batson's third step."

In Austin's case, the prosecutor cited a Black woman's work advocating for reforms within the Denver Police Department as the reason to dismiss her from jury service. An appellate panel concluded that was not a race-neutral reason.

The justices disagreed, finding the prosecutor exercised the strike based on the juror's life experiences, not a presumption that she distrusts police because of her race.

The high court also determined that the judge overseeing Austin's trial didn't make express findings about the juror's circumstances and whether her dismissal was based on purposeful discrimination. It ordered the panel to review whether the case should be sent back for additional findings.

In a statement on Thursday, the American Civil Liberties Union of Colorado and other groups that filed amicus briefs in the cases said they were disappointed in the high court's rulings. That includes the Roderick & Solange MacArthur Justice Center, Fred T. Korematsu Center For Law and Equality, Sam Cary Bar Association and groups representing Hispanic, Asian American and South Asian lawyers.

The groups encouraged the court to adopt the proposed rule change discussed last year and to "pursue all other avenues available" to combat racial discrimination in jury selection. 

"The framework provided by Batson v. Kentucky has, by every measure, failed to root out racial bias in jury selection. State courts can and should fashion their own procedures to combat this widespread and incredibly harmful problem," the groups said in the statement. "The Colorado Supreme Court missed an important opportunity to do so here." 

Counsel for the defendants did not immediately return requests for comment on Thursday. The Colorado Attorney General's Office declined to comment.

The state is represented by Philip J. Weiser, John T. Lee, Jaycey DeHoyos and Joshua J. Luna of the Colorado Attorney General's Office.

Johnson is represented by Tanja Heggins of Tanja Heggins PC.

Austin is represented by Joseph Chase of Shulman Chase LLC.

The amici parties are represented by Mark T. Clouatre, Blake A. Gansborg and Christina Lehm of Nelson Mullins Riley & Scarborough LLP, Timonty R. Macdonald, Sara Neel and Emma Mclean-Riggs of the ACLU Foundation of Colorado, and Robert S. Chang of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law. 

The cases are Colorado v. Raeaje Resshaud Johnson, case number 22SC852, and Colorado v. Sterling Dwayne Austin, case number 23SC75, in the Colorado Supreme Court.

--Additional reporting by Andrew Strickler. Editing by Brian Baresch.

Update: This article has been updated with a response from groups that filed amicus briefs with the court and with counsel information for the amici. 

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