On Thursday, June 6, 2024, Colorado Politics published an article discussing the Colorado Supreme Court’s recent decisions on implicit bias in jury selection and their potential impact on proposed reforms.

The article described how the Colorado Supreme Court had decided two pending cases alleging racial bias in jury selection, in which prosecutors sought to strike jurors of color. In their majority and concurring opinions, the justices signaled that dismissing jurors solely due to distrust of police was an acceptable race-neutral justification. This interpretation went against the spirit of a proposed change to criminal Rule 24 that was meant to curb less obvious forms of exclusion correlated with race, such as negative experiences with law enforcement.

Some proponents of reforming implicit bias expressed concern that the court appeared unreceptive to addressing the issue. Joyce Akhahenda, a public defender and head of the Sam Cary Bar Association representing Black lawyers, said the length of time it took for a decision already raised red flags and that she doubted the court would do anything further.

The article provided context on the Batson v. Kentucky Supreme Court ruling from nearly 40 years ago that deemed purposeful racial discrimination in jury selection unconstitutional. It allows parties, usually the prosecution, to justify dismissing jurors of color by providing a race-neutral reason if challenged. The proposed Rule 24 change aimed to restrict removals for characteristics disproportionately impacting people of color.

In concurring opinions, Justices William Hood and Monica Márquez signaled support for eliminating peremptory challenges instead of reforming them. Peremptory challenges permit attorneys to dismiss jurors without cause. Justice Márquez directly passed responsibility to lawmakers, who had requested the court take action through rulemaking.

This frustrated some reform supporters, such as Fred T. Korematsu Center Executive Director Robert Chang, who did not think legislatures had an incentive to eliminate peremptory challenges as lawyer groups lobby against it. ACLU attorney Emma Mclean-Riggs also cautioned outright removal could deny defendants an ability to remove potentially biased jurors.

Retired Judge Morris Hoffman, who has long advocated abolishing peremptory challenges due to their historical use keeping Black citizens off juries, felt it interesting part of the court now tacitly endorsed that view. However, he and Akhahenda saw it as an “easy way out” versus directly confronting implicit bias. Akhahenda worried it signaled an unwillingness to confront racial issues and a preference to eliminate challenges rather than reform them.

The article provided insights on these complex jury selection issues and hinted the Colorado Supreme Court may be backing away from meaningful implicit bias reforms, instead shifting responsibility and potentially endorsing the elimination of peremptory challenges to skirt confrontation of deeper racial discrimination concerns in their state court system.

 

 

Source: Colorado Politics