On November 6, 2023, we filed two amicus briefs together with the MacArther Justice Center and the Fred T. Korematsu Center for Law and Equality, in two jury selection cases before the Colorado Supreme Court, People v. Johnson and People v. Austin. These cases are part of our Systemic Equality and Smart Justice projects. Our amicus briefs argued that prosecutors cannot exclude people of color from juries based on their experiences of racial injustice with police. Mislabeling these experiences as race-neutral reasons for removal leads to unchecked racial discrimination in jury selection, damaging the integrity of the legal system.
In jury trials in Colorado, each side can remove a certain number of potential jurors from the panel without the need for any reason or explanation, so long as the reason is not unconstitutional. These removals are referred to as “preemptory strikes.” In Batson v. Kentucky, the U.S. Supreme Court held that intentional racial discrimination in jury selection is unconstitutional, and prosecutors may not use their preemptory strikes to strike potential jurors because of their race. But in two cases in the Colorado Supreme Court, the government argued that prosecutors weren’t striking jurors “because of their race” when they used preemptory strikes on jurors who talked about their experience with police officers’ racial bias.
In People v. Johnson, a prosecutor used a preemptory strike on the only Black juror on the panel, citing the juror’s questionnaire, where she had written that she had bad experiences with police, who were disrespectful “based on certain racial identities.”
In People v. Austin, a non-white juror indicated that she had been racially profiled by police and that she had been part of a group seeking to change a racially biased Denver Police Department ticketing practice. The prosecutor sought to use a preemptory strike on her because of her involvement in the reforms of the Denver Police Department.
In both cases, the trial court found that the reasons articulated by the prosecution for the strikes were race neutral. The Court of Appeals reversed the trial court in each case, finding Batson violations.
In Johnson, the Court of Appeals concluded that “a Black juror’s personal experience with law enforcement that is race based, is not, on its face, a racial-neutral explanation.” Therefore, it was unconstitutional to strike the juror because the strike was based on race. The Court of Appeals also concluded that the race-based reason the prosecutor articulated tainted the other reason provided, and therefore the Batson challenge should have been sustained. In Austin, the Court of Appeals echoed its decision in Johnson, concluding the prosecutor’s strike based on the juror’s personal experience and involvement in racial justice activism was not race-neutral reasons, and the Batson challenge should have been sustained.
The government seeks rulings that would allow them to strike jurors of color based on nothing more than their personal experiences with racially-biased policing.
Our brief argued that jurors of color’s personal racialized experiences with police and their participation in racial justice efforts are not grounds to exclude them from juries. To hold otherwise is to invite racial discrimination into the jury selection process. Our brief discussed pervasive police discrimination against people of color in Colorado, the deep connections between lived experience and racial justice activism, and the harm racial discrimination in jury selection does to the legal system. We urged the court to exercise its authority under the Colorado Constitution to prevent prosecutors from striking jurors of color because of their lived experience of racial injustice, and to hold that any racial discrimination in the exercise of a preemptory strike renders it unconstitutional.
On June 3, 2024, the Colorado Supreme Court issued its decisions in Johnson and Austin, holding that a lawyer can strike a juror because of the juror's experience of racial injustice at the hands of police. The Court reasoned that because distrust of law enforcement is not "an inherent characteristic of any race," when a lawyer strikes a juror of color for their personal experience of police racism, they are not striking them due to their race. The Court also concluded that where a prosecutor attempts to strike a juror of color and gives a race-based reason for the strike and a racially neutral reason, as long as the strike was not "substantially motivated" by the race-based reason, it is not a discriminatory strike. This holding allows racism into our jury selection process, provided it isn't a "substantial" amount of racism. We do not accept the idea that any racism in jury selection is constitutional or just.
We are disappointed in the rulings. The framework provided by Batson v. Kentucky has, by every measure, failed to root out racial bias in jury selection. State courts can and should fashion their own procedures to combat this widespread and incredibly harmful problem. The Colorado Supreme Court missed an important opportunity to do so here. Justice Márquez, joined by Justices Hart and Samour, wrote a concurrence about how ineffective the Batson framework has been in curbing racist jury selection, and the inherent danger of racial bias in preemptory strikes. The concurrence suggests a multitude of reforms to the Batson framework, including, but not limited to, substantial reforms that can combat racial discrimination in jury selection. We encourage the Court to institute the proposed changes to Rule 24 and pursue all other avenues available to it to combat the racial discrimination occurring in jury selection proceedings across Colorado.
