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Colorado Supreme Court Announces That Introducing New Race-Neutral Justifications on Remand Not Permitted in Batson Challenge

by Douglas Ankney

The Supreme Court of Colorado ruled that when a party has had an opportunity at trial to present race-neutral justifications for a challenged peremptory strike under the second step of Batson v. Kentucky, 476 U.S. 79 (1986), that party is later barred from introducing new race-neutral justifications on remand.

During the jury selection at Theodore Israel Madrid’s murder trial, the prosecutor peremptorily struck a prospective Black juror identified as J.T. In response, Madrid raised a Batson challenge. The prosecution then offered the following as justification for the peremptory strike:

“Judge, first of all, he’s being replaced by another African-American juror. So, I don’t think that they can really claim that this is not race neutral. But the real problem is we don’t know very much about him. He has a hearing issue it appears, and he’s sort of completely non responsive. We have very little information on him from the questionnaire and no time really to have a very detailed conversation with him. Terribly uncomfortable with him where we have very little information.”

The trial court repeated the prosecutor’s race-neutral justifications but cast doubt on whether J.T. was hard of hearing. The trial court then espoused its own assessment of J.T., saying J.T. “didn’t seem like he wanted to be here ... based on his demeanor” and that J.T. “seemed disappointed that I called his name when he started walking to the front of the courtroom.” Finally, the trial court emphasized that J.T. was replaced by another Black juror, that Madrid was Hispanic and not Black, and that race was not an issue in the strike. The trial court concluded that Madrid failed to make a prima facie showing that J.T. was excluded based upon his race. Consequently, Madrid failed to satisfy step one of his Batson challenge, and the court denied the challenge.

The next day, the trial court offered both parties an opportunity to supplement the record from jury selection. The prosecution added nothing to its reasons for peremptorily striking J.T. After the jury convicted Madrid, he appealed.

The Court of Appeals (“COA”) determined that the trial court erred when it found that Madrid failed to make a prima facie showing of possible racial discrimination under Batson. The COA remanded the case “[b]ecause the trial court did not complete the three-step Batson analysis” and directed the trial court to “take additional evidence and allow further argument at the request of either party.”

On remand and over Madrid’s objections, the prosecution offered additional justifications for the peremptory strike of J.T. The prosecutor testified that after J.T. was called: “I believe there was a sigh. He was slow to take his seat. He did not appear to be delighted to know that he had now been asked to join the People in front of the bar.” After acknowledging that J.T. had “warm[ed] up slightly,” she reemphasized that “he really didn’t want to be here for some reason.” When asked directly whether J.T.’s hearing was the reason for the strike, the prosecutor answered “[n]o, absolutely not.”

At the end of the remand hearing, the district court found that the prosecution provided race-neutral reasons for the strike of J. T. and denied Madrid’s Batson challenge. Madrid appealed again.

The COA reasoned that “where the prosecution articulates its race-neutral reason for striking a potential juror during the Batson proceedings at trial, the district court cannot consider or base its ruling on new justifications offered on remand.” The COA also concluded that “it is improper for a trial court to offer its own race-neutral reason for the prosecution’s use of a peremptory strike.” The COA reversed and remanded for a new trial. The Colorado Supreme Court granted the prosecution’s petition for certiorari.

The Court observed “[t]he Equal Protection Clause of the Fourteenth Amendment forbids racial discrimination in jury selection, which includes the use of peremptory strikes to excuse potential jurors based on race.” Batson. “To secure this right, the [U.S.] Supreme Court created a three-step test for determining when a peremptory strike has been exercised in a discriminatory manner.” Id. The first step requires the objecting party to make a prima facie showing that the challenged peremptory strike was based on the prospective juror’s race. Id. The hurdle of step one is “not a high one,” Valdez v. People, 966 P.2d 587 (Colo. 1998), requiring only “an inference of racial motivation.” People v. Rodriguez, 351 P.3d 423 (Colo. 2015).

Step two shifts the burden of production to the party that exercised the peremptory strike, requiring that party to offer a race-neutral explanation for the challenged strike. Batson. “A race-neutral explanation is one ‘based on something other than the race of the juror.’” Hernandez v. New York, 500 U.S. 352 (1991). The explanation must simply provide “any race-neutral justification for the strike, regardless of implausibility or persuasiveness.” People v. Ojeda, 503 P.3d 856 (Colo. 2022).

In step three, the party challenging the strike may rebut the striking party’s race-neutral explanations. Batson. The trial court then considers the persuasiveness of the striking party’s justifications for the peremptory strike in light of any such rebuttal. Miller-El v. Cockrell, 537 U.S. 322 (2003) (“Miller-El I”). This includes consideration of “all of the circumstances that bear upon the issue of” purposeful discrimination, Snyder v. Louisiana, 552 U.S. 472 (2008), such as the striking party’s demeanor, the reasonableness of the proffered race-neutral explanations, and whether the rationales are rooted in accepted trial strategy. Miller-El I. “The third step also requires the court to assess whether the striking party’s explanations are pretextual, which may be inferred if the justifications shift over time or “reek of afterthought.” Miller-El v. Dretke, 545 U.S. 231 (2005) (“Miller-El II”).

Finally, step three requires the trial court to determine if the party challenging the strike has established purposeful discrimination, i.e., whether the peremptory strike was “motivated in substantial part by discriminatory intent.” Batson. Because the burden of persuasion remains with the party challenging the strike, the court should sustain a Batson challenge only if the challenging party proves by a preponderance of the evidence that the strike was substantially motivated by discriminatory intent. Ojeda.

In the present case, the Court observed that the prosecutor’s race-neutral explanations shifted over time. At trial, those explanations relied on J.T.’s unresponsiveness, his apparent hearing problem, and the prosecutor’s dearth of information on him. But on remand, the prosecutor explicitly stated that J.T.’s hearing problem was not an issue. The prosecutor then offered new explanations that mimicked the trial court’s initial observations of J.T.’s seeming unwillingness to be present at the trial.

The Court noted that in United States v. Taylor, 636 F.3d 901 (7th Cir. 2011), the Seventh Circuit determined that “Miller-El II instructs that when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons given after the fact.”

The Court stated that the prosecution disavowed its earlier reliance on J.T.’s purported hearing problem. With regard to the lack of information on J.T., the Court observed that the prosecution had substantially the same amount of limited information on the other jurors that were accepted by the prosecution.

The Court concluded that the COA’s initial remand order was in error by allowing the district court to “take additional evidence and allow further argument at the request of either party.” Because the district court relied on the prosecutor’s additional explanations for the strike at the remand hearing, the Court could only speculate on how the district court might have ruled on the Batson challenge after hearing only the prosecutor’s initial explanations. Such speculation made it impossible for the Court to assess whether a Batson violation occurred. Because the Court could not determine that the error injected by the COA’s initial remand order was harmless beyond a reasonable doubt, the Court concluded Madrid was entitled to a new trial.

Accordingly, the Court affirmed the judgment of COA, reversed Madrid’s judgment of conviction, and remanded for a new trial. See: People v. Madrid, 526 P.3d 185 (Colo. 2023) (en banc).



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