Colorado Justices Vent About Difficulty of Evaluating Racial Bias in Jury Selection

Members of the Colorado Supreme Court last week expressed frustration with the difficulties of pinpointing unconstitutional racial bias in jury selection, especially when relatively few details are available after the fact about what happened at trial.

“We’re trying to guess what’s in someone’s mind, someone’s heart, even when they may not be aware of it, right? We’re trying to get at implicit bias here,” said Justice Carlos A. Samour Jr. during oral arguments on May 8.

The Supreme Court is weighing the case of Phillip Romero, convicted of assault in Weld County. The prosecutor dismissed, or struck, a Hispanic man from the jury on the grounds he “appeared very disinterested,” with nothing more concrete. Even though the trial judge and the defense did not agree with that assessment, the judge allowed the juror strike anyway.

By 2-1, a panel of the Court of Appeals ordered a new trial for Romero based on the constitutional prohibition against intentional racial discrimination in jury selection. Members of the Supreme Court struggled with what to make of that decision, given the scarcity of information from which to draw a conclusion.

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Under longstanding U.S. Supreme Court precedent, intentional race-based discrimination in jury selection is unconstitutional. Normally, parties may exercise “peremptory strikes” of jurors without citing a reason. But when a prosecutor tries to remove a juror of color, the defendant may raise a “Batson challenge,” named after the Supreme Court’s Batson v. Kentucky decision. Such a challenge forces the prosecutor to justify the removal with a “race-neutral” reason.

The challenge proceeds in three steps. First, the defense must state a plausible case that a juror is being removed on account of their race. Second, the prosecution must offer a race-neutral explanation. Finally, the trial judge analyzes whether discrimination is likely happening.

At Romero’s trial, the prosecution briefly spoke with one of the two Hispanic members of the jury pool, identified as Juror F. The prosecutor, who the district attorney’s office identified as Lillie Parker, then moved to strike him. As a race-neutral reason, Parker said the man “appeared very disinterested” and had a “wandering mind.”

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Last year, the Supreme Court held a hearing on a proposed rule change designed to make it harder to strike jurors of color for reasons that, while not explicitly racial, can correlate with race. As drafted, demeanor-based reasons would require corroboration from the trial judge or opposing party in order to be valid.

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