Colorado court upholds dismissal of Hispanic juror for believing justice system to be racist | Subscriber Content

Colorado’s second-highest court found no issue with the prosecution dismissing a Hispanic man from an Arapahoe County jury because of his observation that the justice system is unfair to racial minorities.

But for defendant Dustin Aaron Schwarz, the man’s exclusion from his jury illustrates a broader concern that people of color are being denied for reasons that, while not explicitly racial, still correlate with race. .

“If the jury selection system allows prosecutors to strike at people of color who worry about (systemic bias) because of their racially-based experiences, then juries will never be made up of a fair cross-section of our people. communities,” argued the public defender. Casey Mark Klekas on behalf of Schwarz.

A three-judge Court of Appeals panel ultimately found that the dismissal of “Juror G” did not violate the U.S. Supreme Court’s prohibition on intentionally excluding jurors because of race. The prosecutor, Judge Anthony J. Navarro explained, had made it clear that his issues revolved around Juror G’s statement about the justice system — which was not overtly linked to Juror G’s race.

“In these circumstances, and without an overt reference by the prosecutor to the race of the potential juror in relation to his views on the justice system, we conclude that the reason articulated by the prosecutor for the strike was apparently racially neutral,” said writes Navarro in the notice of September 15. .

The 1986 Supreme Court decision in Batson v. Kentucky has recognized as unconstitutional intentional dismissals, or strikes, of jurors because of their race. Although parties to a case are normally allowed to use “peremptory strikes” to excuse jurors for no reason, defendants sometimes raise “Batson challenges” if a prosecutor tries to dismiss a juror of color.

Batson’s challenge triggers a multi-step process, in which the prosecutor must present a non-racial explanation for their peremptory strike and the trial judge then decides whether intentional racial discrimination is likely to be taking place.

Critics of Batson’s challenges argue that prosecutors can still successfully remove jurors of color simply by advancing a rationale that may have implicit bias, such as juror behavior, previous contact with police officers or their distrust of law enforcement. all of which may have indirect links to a juror’s race.

“Unrepresentative juries occur because communities of color are often unfairly excluded or marginalized because of their race,” public defender Joyce Akhahenda told the legislature earlier this year. “It reinforces that it’s not ‘our’ system.”

Schwarz, who is white, was tried in 2019 for a series of robberies he committed at pharmacies in the Aurora area. During jury selection, a man with the Spanish surname “Guillen” indicated on his questionnaire that he could not be an impartial juror because “the justice system is racist”.

The anonymous prosecutor asked Juror G, as the appeals court called him, to elaborate.

“I just think it’s sometimes unfair, especially with minority racial groups,” said juror G.

The prosecutor then wondered if Juror G could “put that aside” and decide the case based on the evidence.

“It’s a bit difficult, but I can do it,” replied juror G.

The man then correctly stated the fundamental principle of criminal cases – innocent until proven guilty – and clarified that he believed the police were “just doing their job” keeping the public safe. The prosecutor’s final question to Juror G was whether he had any concerns about being a fair and impartial juror.

“Not at all,” said juror G.

Although the prosecutor did not attempt to excuse Juror G for cause, he used a peremptory strike to dismiss the man. The defense challenged Batson, noting that juror G had a Hispanic name and explained that he could decide the case impartially.

“Judge, frankly, I don’t know if Guillen is a Hispanic surname,” the prosecutor said.

Even though Juror G’s oral responses were more impartial than his statement to the questionnaire, the prosecutor continued, “I have concerns about any member of the jury who enters the courtroom if there is any bias or prejudice. bias on the part of law enforcement or the system.”

District Court Judge Ryan Stuart did not believe the defense even plausibly claimed that Juror G’s strike was based on race. But, “if an appeals court disagrees with me,” Stuart added, “Mr. Guillen thinks the justice system is racist.”

This belief, combined with Juror G’s admission that his brother had been convicted and “harassed” by the police, amounted to non-racial reasons for the strike.

Next his conviction, Schwarz appealed and argued that the prosecutor’s explanation for dismissing Juror G was inherently race-based.

“Are jurors expected to lie or remain silent when questioned about the criminal justice system’s treatment of minority groups? To be eligible to sit, must a prospective juror conceal any racial discrimination that he or she even or his family was victim?” Klekas wrote to the Court of Appeal.

The government defended the decision to disbar Juror G, challenging whether he was even Hispanic and, even if he was, saying Juror G’s views on systemic bias were unrelated to his race. Additionally, the Colorado Attorney General’s office suggested that Juror G may have intentionally misrepresented his ability to be fair in order to infiltrate the jury.

Juror G’s pledge to be impartial might have actually been “an effort to sit down and bring his preconceived view of the justice system into the jury room,” Olivia Probetts wrote in court.

The Appeal Board based its decision largely on the case of People v. Ojeda, which the Colorado Supreme Court ruled earlier this year. There, as in Schwarz’s trial, a prosecutor punched out a Hispanic juror who worried about systemic racial bias in the justice system. Unlike Schwarz’s case, however, the prosecutor justified the strike by mentioning “the fact that the accused is a Latino male.”

The Supreme Court agreed to order a new trial because the prosecutor’s explanation was explicitly race-related.

By contrast, the Arapahoe County prosecutor in the Schwarz case did not make the same mistake.

“Indeed, the prosecutor made no reference to the race or ethnicity of Juror G at all,” Navarro wrote. He pointed to the Supreme Court’s Ojeda opinion, which recognized a difference between a juror simply expressing concerns about the criminal justice system and a prosecutor then linking those views to race.

Because Schwarz’s prosecutor had not gone that far, the panel upheld his beliefs.

Currently, the Colorado Supreme Court’s criminal rules committee is preparing to send a proposal to the justices aimed at reducing the exclusion of people of color from juries. The committee debated the rule change behind closed doors in July, months after a similar move in the General Assembly failed due to opposition from district attorneys.

A Judiciary Department spokesperson declined to release details of the upcoming proposal, but a draft this summer presented specific justifications for excusing allegedly invalid jurors. Peremptory challenges would generally be dismissed if, for example, a juror lives in a “high-crime neighborhood”, is a non-native English speaker, or has friends or family members who have been arrested.

Notably, the proposal would also invalidate jury strikes for those who express distrust of law enforcement or believe police engage in racial profiling.

About Jessica J. Bass

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