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Colorado Supreme Court Announces Implied Bias the Same as Actual Juror Bias, Requiring Automatic Reversal

by Anthony Accurso 

The Colorado Supreme Court announced a rule, which holds that when a defendant raises a for-cause challenge to an impliedly biased juror under 16-10-103(1), C.R.S., a structural error arises when that juror serves on the jury. The Court instructed that “a juror who is presumed by law to be biased is legally indistinguishable from an actually biased juror” with respect to a criminal defendant’s constitutional right to an impartial jury. 

Abdu-Latif-Kazembe Abu-Nantambu-El was charged with numerous offenses, including first-degree murder, second-degree murder, and two counts of first-degree burglary in Colorado. After a jury trial, he was convicted on the above-listed counts and sentenced to life without parole. 

On appeal, he raised an issue of juror bias stemming from the trial court’s denial of a for-cause challenge to a potential juror under 16-10-103(1), C.R.S. The Legislature codified a list of relationships that constitute implied bias and, upon challenge, must result in the excusal of the potential juror. At issue was subsection (k), which states implied bias exists if the prospective juror is a “compensated employee of a public law enforcement agency or a public defender’s office.” 

Juror ‘J’ worked as a financial grant manager for the State of Colorado in the Colorado Division of Criminal Justice, an agency codified in 24-33.5-ll(l)(a) as a “law enforcement agency of the state.” Defense counsel raised a for-cause challenge to this juror, which after rebuttal by the People, was denied on the grounds that J’s job at a ‘multidisciplinary agency” and “duties as a financial grant manager were unrelated to law enforcement.”

Critically for the question at issue in this case, the defense ran out of peremptory challenges. In addition to for-cause challenges enumerated by statute, the Legislature allows a set number of peremptory challenges, which allow ‘both the prosecution and the defense to secure a more fair and impartial jury by enabling them to remove jurors whom they perceive as biased.” Vigil v. People, 455 P.3d 332 (Colo. 2019). After the defense exhausted its peremptory challenges and the trial court rejected its for-cause challenge to Juror J, she ultimately served on the jury.

The Colorado Court of Appeals reversed his conviction and remanded for a new trial, though the judges were divided about the reasons for reversal and the proper standard of review. 

The Colorado Supreme Court upheld the reversal and clarified the decision with its new rule. It framed the issue as follows: “What standard of reversal applies where a trial court erroneously denies a challenge for cause, the defendant exhausts his peremptory challenges, and the challenger juror ultimately serves on the jury? More specifically, should reversal be automatic if the challenged juror should have been excused because she was implied biased as a matter of law, even if she did not evince actual enmity toward the defendant?”

A fair and impartial jury is a key element of a defendant’s constitutional right to a fair trial under both the U.S. and Colorado Constitutions. U.S. Const. amends. V, IV, XIV; Colo. Const. art. II § § 16, 25. Further, 16-10-103(1)(j) states a trial court must grant a challenge for cause to a prospective juror who “evinces enmity or bias toward the defendant or the state,” unless the court is satisfied that the prospective juror “will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.” 

While the People argued that the error should be analyzed such that the defense should bear the burden of proof to demonstrate the error was not harmless, the Court explained that implied bias is no different from actual bias. The list of relationships in 16-10-103(1) codify various forms of implied bias, and seating someone on a jury with such bias, after a challenge has been raised, is a structural error requiring automatic reversal. Further, an impliedly biased juror “is not susceptible to rehabilitation through further questioning because implied bias, once established cannot be ameliorated by the juror’s assurances that she nonetheless can be fair.” Quoting from People v. Lefebre, 5 P.3d 295 (Colo. 2000).

Accordingly, the Court upheld the decision of the Colorado Court of Appeals, which vacated the convictions of Abdu-Latif Kazembe Abu-Nantambu-El and remanded for a retrial based on the trial court’s error allowing a juror to serve after she should have been struck by a for-cause challenge. See: People v. Abu-Nantambu-El, 454 P.3d 1044 (Colo. 2019). 

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Related legal case

People v. Abu-Nantambu-El



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