The Colorado Supreme Court on Monday held that a trial court should not have disqualified a Latino juror in a criminal case, finding that prosecutors failed to provide a race-neutral reason for striking him. The decision upheld the reversal of Ray Ojeda’s conviction for kidnapping, rape and attempted murder, and the case will be remanded for a new trial.
In 1997, a 15-year-old girl was abducted at gunpoint in Denver, raped, shot in the head and left to die in the South Platte River. She survived the attack and reported the crime, but she couldn’t identify her attacker. The Denver Police Department misplaced her rape kit, which eventually resurfaced and was tested years later. DNA from the rape kit matched Ojeda, who was living in Texas at the time of his arrest in 2013. He was charged with sexual assault, attempted murder and kidnapping.
During jury selection, prospective jurors were asked about their history of sexual assault, connections to law enforcement and experience with police and the criminal justice system. One would-be juror, a Hispanic man identified as R.P. in court documents, reported that he and his ex-wife had been victims of sexual assault but that his experience wouldn’t affect his judgment.
R.P. was also one of two prospective jurors to rate the criminal justice system a four on a scale of one to 10. The other six jurors gave somewhat more favorable assessments ranging between five and 10. When questioned later, R.P. said he had “a little bit of a bias on the [criminal justice] system itself,” indicating that he worked with communities of color and knew that “the criminal justice system is disproportionately filled with people of color and folks with mental disabilities.” R.P. said that while he would try not to let these views affect him as a juror, they could color his evaluation of the evidence in Ojeda’s case.
The prosecutor challenged R.P. for cause based on his questionnaire and remarks during the selection process, explaining that he expressed bias against the criminal justice system and “visibly showed hesitation” when asked whether he could be fair. The prosecutor noted that R.P. had talked about serving people of color in his healthcare job and he had talked about Ojeda being a person of color. She added that she “thought that the totality of the record indicated that he has a distinctive leaning, that he himself said he would have trouble listening to the evidence.”
Ojeda’s attorney objected to the challenge and argued that the prosecutor was mischaracterizing R.P.’s answers and that R.P. said he could set his experiences aside and be objective. The defense lawyer also pointed out that R.P. was one of only a few Hispanic men on the jury panel and that the prosecutor couldn’t “exclude him just because he’s Hispanic and may have something in common with the defendant in his heritage.”
The court blocked the prosecutor’s challenge for cause, but the prosecutor then used a peremptory strike to dismiss R.P. Ojeda’s attorney raised a Batson challenge, named after the U.S. Supreme Court’s decision in Batson v. Kentucky. In that 1986 decision, the high court ruled prosecutors may not use peremptory challenges to exclude jurors based solely on race.
Batson provides a three-part process courts must follow to determine whether a peremptory strike is discriminatory. First, the objecting party — in this case, Ojeda’s attorney — must make a prima facie showing that the strike was based on the juror’s race. In the second step, 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.
During Ojeda’s trial, the prosecutor didn’t wait for the court to rule on whether the defense attorney had satisfied the first step. Instead, she launched into her explanation of why R.P. should be excused, including his misgivings about the system, which could pose problems for the prosecution due to weaknesses in its case, such as the misplaced rape kit. She voiced concerns that R.P., who shared the defendant’s Hispanic heritage and had discussed his own worries about racial profiling, could “steer the jury towards a race-based reason” for why Ojeda was charged with the crime. The prosecutor noted that the jury included other people of color, including Middle Eastern, Black and Hispanic jurors.
Despite the prosecutor’s comments about race, the trial court overruled Ojeda’s Batson challenge, finding there were “abundant race-neutral reasons” for R.P. to be excused, including his history as a sexual assault victim, which he seemed “remarkably unconcerned about,” his “anti-law enforcement bent” and his assumption that Ojeda’s case took years to go to trial because the victim delayed disclosure. Notably, these race-neutral reasons were different from those offered by the prosecutor.
A split panel of the Colorado Court of Appeals reversed the district court’s ruling. The majority applied a “substantial motivating factor” approach to the third Batson step and concluded the prosecutor was motivated in substantial part by discriminatory intent. Judge Robert Hawthorne dissented, finding the court’s Batson analysis was inadequate and the case should be remanded to complete the three-step Batson process.
On appeal, the Colorado Supreme Court concluded the trial court erred during the second step in the Batson analysis and should not have denied Ojeda’s challenge. The justices found that the trial court implicitly rejected the prosecutor’s explanation because it supplied its own reasons for dismissing the juror. The high court concluded the prosecutor’s explanation for justifying the strike was based in part on R.P.’s race and she didn’t meet her burden in giving race-neutral reasons.
“Here, the thread that runs through the prosecution’s lengthy explanation was its overtly race-based concern that Juror R.P.—a polished, educated, persuasive Hispanic man, who the prosecution said voiced concern about racial profiling—might look to Ojeda who, like him, was a Hispanic man, and ‘steer the jury towards a race-based reason why’ Ojeda was ‘charged in the case,’” states Monday’s unanimous opinion written by Justice Maria Berkenkotter.
The court affirmed the Court of Appeals’ decision, which reversed Ojeda’s conviction and remanded the case for a new trial.