A bill aimed at tackling implicit bias in the criminal jury selection process was killed in committee on Thursday, but its sponsors hope the Colorado Supreme Court will address the issue through changes to the rules of criminal procedure.
Senate Bill 22-128 would have allowed courts and opposing counsel to object to peremptory challenges “with the potential to be based on” racial or ethnic bias. Peremptory challenges would have been presumed invalid if they excluded a juror because they receive state benefits, speak English as a second language, live in a certain neighborhood or have a child outside of marriage. Other presumptively invalid reasons would have included if the juror had prior contact with law enforcement, if someone close to them had been accused or convicted of a crime or if the juror expressed distrust of law enforcement.
According to Sen. Julie Gonzales, one of the bill’s prime sponsors, the bill was introduced after the Colorado Supreme Court last year rejected a similar rule change proposal by the Rules of Criminal Procedure Committee. During the bill’s first Senate Judiciary Committee hearing on Feb. 23, “we heard opposition from all 22 district attorneys, who then said it should be a rule change and not legislation,” Gonzales said at another meeting of the committee on March 10. Gonzales added that although opposition witnesses agreed implicit racial bias in jury selection is a problem that needs to be addressed, she didn’t receive any written feedback in response to her request for ideas to improve the bill.
“We saw that, at this point, the best pathway forward is for us to attempt to return to the Colorado Supreme Court and its rules committee in order to address this via rule,” Gonzales said, adding that if the court failed to adopt a rule, “we will come back in the next legislative year … and proceed again.”
In its 1986 Batson v. Kentucky decision, the U.S. Supreme Court held that a prosecutor may not use a peremptory challenge to exclude jurors solely based on race. Batson provides a process courts must follow to determine whether a peremptory challenge is discriminatory. First, the objecting party must make a prima facie showing that the strike was based on the juror’s race. Then the burden shifts to the party calling for the strike, who must produce a race-neutral explanation for why the juror should be dismissed. Finally, the court must decide whether the objecting party has established purposeful discrimination.
But according to proponents of the bill, Batson only addresses explicit or purposeful discrimination. “The focus there is on the subjective intent of the lawyer who is conducting jury selection and whether that intent specifically was to discriminate based on race or ethnicity,” said Tristan Gorman of the Colorado Criminal Defense Bar during the Feb. 23 hearing. “It leaves a wide hole for implicit bias.”
Gorman said that the presumptively invalid reasons listed in the bill were chosen because they are some of the most common “so-called race-neutral reasons” a lawyer might give for excluding a juror that “stand in as a proxy for race.”
However, several prosecutors who testified against the bill said it would skew jury selection toward jurors who are anti-law enforcement. “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,” Weld County District Attorney Michael Rourke said at the February hearing.
Robert Russel of the Denver District Attorney’s Office said during last month’s hearing that he believes the issue should be addressed by the Supreme Court’s rules committee, rather than the legislature. Russel, who serves on the committee, said he had “real concerns about the [committee’s] proposed rule,” which was based on a rule adopted by the Washington Supreme Court. “But despite those concerns, the committee voted to recommend the rule — not once, but twice,” he said.
Typically, the Supreme Court would then schedule a public hearing and accept public comments on the proposed change. “I think that’s what the court would have done if it had thought that the rule was close to being workable. But the court didn’t do that. Instead, it unanimously rejected the proposal and invited the rules committee to do more work,” Russel said. “I can’t speak for the court, but I believe that the court really did want to adopt a rule — just not this version.”
During testimony, the prosecutors overwhelmingly agreed that implicit bias is a real problem and several noted that their offices hold implicit bias training. But defense attorney Ann Roan, who served as state training director for the Office of the Colorado State Public Defender, rejected the idea that training alone is enough to eliminate bias from the jury selection process. According to Roan, the legal community has been focused on implicit bias for more than a decade and public defenders, prosecutors and judges alike have attended trainings. “But yet here we are,” Roan said during the February hearing, pointing to the recent Colorado Supreme Court case People v. Ojeda as an example of bias during jury selection.
In February, the state Supreme Court found a Latino juror was improperly dismissed during the 2015 trial of Ray Ojeda, who was later convicted of the kidnapping, rape and attempted murder of 15-year-old Susie Hernandez. During a Batson challenge, the prosecutor in Ojeda’s case voiced concerns about the juror’s Hispanic heritage and his misgivings about racial profiling in the criminal justice system. Despite the prosecutor’s failure to give a race-neutral reason for excluding the juror, the court allowed the juror’s dismissal and gave its own race-neutral justification for doing so. The Supreme Court affirmed a Colorado Court of Appeals decision reversing Ojeda’s conviction and remanded the case for a new trial.