Nearly four decades ago, the United States Supreme Court recognized that deliberate racial discrimination in jury selection was unconstitutional.

Courts have since adopted a procedure, known as the “Batson challenge,” to determine whether the removal or “strike” of a juror is based on that person’s race. When an attorney uses a peremptory strike against a juror of color, which usually does not require a reason for dismissal, the opposing party can raise a Batson challenge to force a “race-neutral” explanation of the strike. “. If a trial judge finds that the justification is not credible, the juror will remain on the jury.

However, Batson’s challenges have a blind spot. A racially neutral reason will often be approved even if the justification, even if not explicitly racial, can be correlated to a person’s race, for example, if a juror reports bad experiences with law enforcement or exhibits a unpleasant conduct.

Ann M. Roan is a Boulder-based adult and juvenile criminal defense attorney. She was a public defender for 27 years, appearing before Colorado trial and appellate courts. Roan has spoken and presented on the issue of racial bias in jury selection, including before the General Assembly. She spoke with Colorado Politics about Batson’s challenges and how to reform them.

Colorado Policy: What has the Supreme Court said about racial jury selection? Are prosecutors or defense attorneys ever allowed to do so, or is there a blanket ban on considering race?

Ana Roán: The Supreme Court of the United States held in Batson vs. Kentucky that barring someone from jury duty because of race is a violation of the Fourteenth Amendment because “a person’s race is simply not related to his fitness as a juror.” Despite walking stick addressed a peremptory challenge from the prosecution, the court made it clear that defense attorneys are subject to the same rules in Georgia vs. McCullom.

PC: Why would a lawyer not want someone to serve on a jury because they are a person of color?

ARKANSAS: Stereotypes are something we all use, often without even realizing we’re doing it. Human beings have a basic cognitive need to categorize and simplify the world around them. And some lawyers use a potential juror’s race or gender as an indicator of their ability to serve on a jury, based on stereotypes.

for example in Miller-El vs. CockrellThe court took note of a training manual written by a Texas prosecutor that urged prosecutors to exclude jurors from all sorts of demographic groups, based on stereotypes:

• “I don’t like women on juries because I can’t trust them”

• “Extremely overweight people, especially young women and men, indicate a lack of self-discipline and often instability”

• “Jewish Venermen are generally poor state jurors. Jews have a history of oppression and are generally sympathetic to the accused.”

• “Minority races almost always identify with the Defendant”

I suspect that because jury selection is stressful for lawyers, consciously or unconsciously resorting to stereotypes for their decisions is a way to make a difficult situation a little easier.

PC: Do you think the Supreme Court is likely to reexamine the walking stick decision to crack down soon on more subtle cases of racial discrimination in jury selection?

ARKANSAS: He walking stick The cases the court has heard to date have involved fairly overt instances of racial bias in peremptory challenges. But why walking stick is an imperfect tool for addressing more nuanced discrimination in jury selection, I suspect the court will continue to receive requests for review of those kinds of facts.

PC: Can you talk about the proposal you supported last year in front of the Colorado legislature, which sought to address implicit racial bias in jury selection?

ARKANSAS: A group of lawmakers introduced Senate Bill 22-128 after the Colorado Supreme Court rejected a proposed criminal rule change that would have addressed implicit bias in jury selection without receiving public comment or setting a public hearing. SB 128, like the proposed rule change, was substantially similar to a rule the Washington State Supreme Court adopted in 2018. All elected district attorneys in Colorado opposed SB 128 and the sponsors ultimately decided postpone it indefinitely.

PC: Next month, the state Supreme Court will hear from the public on whether to adopt a new protocol for challenges to Batson in trial courts. To what extent is it similar to the legislative proposal? Can you give me the highlights of the rule change?

ARKANSAS: As I understand it, the current proposed rule is similar to both SB 128 and the proposed rule that the court threw out in 2022. Like the Washington rule it was inspired by, the proposed rule change removes those parts of the walking stick process that has proven unfeasible, and also addresses peremptory challenges based on implicit bias, as well as deliberate discrimination.

A court would no longer have to find willful discrimination before granting a walking stick objection, and would instead ask whether a reasonable person would consider the race or ethnic origin of the prospective juror as a factor in the use of peremptory disqualification. The proposed rule provides clear guidance to trial courts facing a walking stick objection.

As our state Supreme Court has recognized, despiteand Batson With the law established for decades, there is still uncertainty about its mechanics and this proposed rule would help remedy the problems that uncertainty creates. Under the proposed rule, if attorneys base a peremptory challenge on their subjective interpretation of a juror’s nonverbal conduct, that conduct must be reported to the court in advance, so that the court has an opportunity to verify the attorney’s interpretation. .

PC: If the Supreme Court enacts the rule as written, what are the effects we are likely to see, starting in the trial courts?

ARKANSAS: The criminal standards committee spent a lot of time talking with prosecutors and judges in Washington to see how the state’s rule change affected the landscape. And they reported that prosecutors in Washington are better able to avoid implicit bias in jury selection as a result of the rule. Some of the prosecutors who testified before the Senate Judiciary Committee in opposition to SB 128 said that better training, not legislation, was the answer to this problem, so I think prosecutors will support the rule change for that reason.

Washington lawyers and professionals also said that after the rule change, more people of color are serving on Washington juries. That’s important, because as Justice Brett Kavanaugh observed in Flowers against Mississippi, “Aside from voting, jury service is the most important opportunity most citizens have to participate in the democratic process.”

PC: One of the reasons that would be invalid by default for excusing a juror of color is their expression of distrust in law enforcement, or their belief that people are racially profiled by the police. Why shouldn’t we worry that there are people on juries who are skeptical of the law’s application from the start, and who don’t believe the testimony of police officers when they hear it?

ARKANSAS: We should not worry because we should have confidence that Colorado prosecutors are competent to question jurors to identify those who could not follow the court’s instructions in a criminal case and challenge those jurors for cause. Challenges for cause are granted if the juror’s own answers during jury selection reveal that they will not be able to follow the court’s instructions about the law. Regardless of race, any juror who says their feelings about law enforcement means they will not believe a law enforcement witness is subject to questioning for cause unless they can put those feelings aside for the jurors. purposes of the trial.

PC: Is there a single part of this rule change that you hope will be enacted, even if the other components are not included in the final rule?

ARKANSAS: I believe that all the components of this rule are part of a unified whole, so selecting one at the expense of any other is probably not feasible.

PC: Is there any way to know how often people of color are fired from juries compared to white jurors?

ARKANSAS: Unfortunately, the state judiciary does not collect data on this topic, so there is no way to know. Other states have shown that collecting data on the race of citizens removed from jury panels by peremptory challenges is a simple task. It is hard to say why this has not been a priority for our state court system.