On Thursday, May 16, 2024, Colorado Politics reported that members of the Colorado Supreme Court expressed frustration with determining whether racial bias existed in jury selection based on limited information available after trial.

During oral arguments in the case of Phillip Romero, who was convicted of assault in Weld County, Justice Carlos A. Samour Jr. noted the difficulty in ascertaining unconscious or implicit bias based on what someone may have been thinking or feeling during jury selection. The Supreme Court was weighing an appeal from Romero after a panel of the Colorado Court of Appeals ordered a new trial, finding the prosecutor dismissed a Hispanic juror due to his race.

At issue was the fact that the sole stated reason from the prosecutor for striking the juror was that he “appeared very disinterested,” but neither the defense nor the trial judge agreed with that assessment. While the trial judge acknowledged not seeing signs of disinterest, they allowed the strike anyway due to lacking their own read on the juror’s attentiveness. Justice Richard L. Gabriel voiced concern that affirming the decision based on such little information could set a precedent allowing prosecutors to strike jurors for any reason by simply stating it.

The case involves longstanding precedent from Batson v. Kentucky that intentional race-based discrimination in jury selection violates the Constitution. Additionally, when a defendant raises a “Batson challenge” to a strike of a minority juror, prosecutors must provide a race-neutral reason. Here, the prosecutor cited the juror appearing disinterested but their stated rationale was contradicted by both the defense and trial judge. A majority of the Court of Appeals panel found this problematic and ordered a new trial.

During oral arguments, the Colorado Supreme Court justices questioned how the trial judge could credit the prosecutor’s reason when directly saying they did not observe any signs of disinterest. Justice Monica M. Márquez noted the trial judge did not explicitly say they found the prosecutor’s account accurate. Some justices raised challenges around determining racial bias based on demeanor since assessments can differ between parties.

Previously, the Supreme Court considered a proposed rule change to require corroboration of demeanor-based reasons for striking jurors but has not yet implemented it while cases like Romero’s remain pending. Justice Samour echoed past concerns from Justice Thurgood Marshall that the best way to address bias may be eliminating peremptory strikes. A decision in Romero is still pending from the Colorado Supreme Court.

 

 

Source: Colorado Politics