Theodore Israel Madrid Judgment Affirmed en banc JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE MÁRQUEZ JUSTICE GABRIEL JUSTICE HART , 2023 CO 12 ( 2023 )

 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2023 CO 12Supreme Court Case No. 21SC505
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 17CA2058
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Theodore Israel Madrid.
Judgment Affirmed
en banc
March 27, 2023
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Erin K. Grundy, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Public Defender
Lynn Noesner, Deputy Public Defender
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE
MÁRQUEZ, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE
BERKENKOTTER joined.
CHIEF JUSTICE BOATRIGHT dissented.
JUSTICE SAMOUR did not participate.
2
JUSTICE HOOD delivered the Opinion of the Court.
¶1 Decades ago, the Supreme Court created a three-step test for determining
when a peremptory strike against a prospective juror has been exercised in a
discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 96–98 (1986). The second
step requires the party responding to an accusation of a racially motivated strike
to justify the strike with a race-neutral reason. Id. at 97–98. Sometimes, an appeal
based on Batson prompts a reviewing court to return the case to the trial court for
additional findings. This occurred in the case before us involving Theodore Israel
Madrid.
¶2 Following a second appeal in this case, we agreed to consider whether a
party on remand may raise a new race-neutral reason to justify a peremptory strike
made at trial. Our answer is no. We hold that when a party has been provided
with an adequate opportunity to present its race-neutral justifications at trial, it is
barred from introducing new race-neutral justifications on remand. Our
application of that holding to the facts here prompts us to affirm the judgment of
the court of appeals, which means that Madrid is entitled to a new trial.
I. Facts and Procedural History
A. Trial
¶3 In 2011, Madrid was charged with one count of first degree murder and two
counts of child abuse resulting in death.
3
¶4 In 2012, Madrid went to trial on these charges. During jury selection, the
prosecution excused prospective juror J.T., a Black man who indicated on his juror
questionnaire that he was sixty-eight years old, married with children, and a
retired customer-service specialist.
¶5 The trial court called J.T. into the jury box late in the jury-selection process
after excusing seven jurors. Upon replenishing the pool of prospective jurors
seated in and around the jury box, the court gave each side a total of five minutes
to question the seven new prospective jurors, including J.T.
¶6 The following exchange then occurred:
[Prosecution]: So, [J.T.], any issues that you had with anything that
either of us had said or anything that the Court has
said as far as the instructions of law?
[J.T.]: No, not yet.
[Prosecution]: Not yet. Okay. Any concerns about having to look
at—potentially have to look at autopsy pictures in the
case?
[J.T.]: No.
[Prosecution]: No? Okay. Anything you want to tell us?
[J.T.]: No.
[Prosecution]: Do you have a good joke?
[J.T.]: I’m the joke.
Later, the prosecution used its ninth peremptory challenge to excuse J.T.
¶7 In response, Madrid raised a Batson challenge. Specifically, Madrid argued:
4
[J.T.] was one of the last people on the jury. According to his
questionnaire, he’s fact neutral. He was asked a few questions by
both parties and he gave very short answers and seemed to be
unbiased. I don’t see any other reason why he would be dismissed at
this time.
¶8 The prosecution then provided the following justification for its use of a
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
nonresponsive. We have very little information on him from the
questionnaire and no time to really have a very detailed conversation
with him. Terribly uncomfortable with him where we have very little
information.
The trial court confirmed the prosecution’s race-neutral reasons, repeating that the
prosecution was “excusing [J.T.] because of the little information that was
provided in the questionnaire and the brief opportunity you had to question him.”
The court also questioned the prosecution’s offered rationale that J.T. was hard of
hearing, and the prosecution clarified that “[h]e appears to and I could have just
been mumbling, but he appeared to [be hard of hearing] to me.”
¶9 Before rendering its decision on the Batson challenge, the trial court
volunteered its own assessment of J.T. The court offered that J.T. “didn’t seem like
he wanted to be here . . . based on his demeanor” and that he “seemed
disappointed that I called his name when he started walking to the front of the
courtroom.” The court also acknowledged that J.T. was soft-spoken, mumbled,
5
and at times was difficult to understand, though the court expressed doubt as to
“whether that means he has a hearing problem or not.” Finally, the court
emphasized that J.T. was replaced by another Black juror, that the defendant was
Hispanic (not Black), and that race was not an issue in the underlying case.
¶10 The court then found the defense failed to make a prima facie showing that
the prosecution excluded J.T. because of his race and that the totality of the
relevant facts didn’t give rise to an inference of purposeful discrimination, per step
one of Batson. Because the defense failed to meet its burden at Batson’s first step,
the court denied the challenge.
¶11 The following day, the trial court offered both parties the opportunity to
supplement the record from jury selection. The prosecution offered nothing more
regarding why it had exercised a peremptory strike against J.T.
¶12 After a nine-day trial, the jury convicted Madrid on all counts.
B. First Appeal and Remand Proceedings
¶13 Madrid appealed, and a division of the court of appeals determined that the
trial court erred by finding that Madrid had failed to meet his step-one burden of
establishing a prima facie case of discrimination. People v. Madrid, No. 13CA298,
¶ 20 (Jan. 12, 2017) (“Madrid I”).
¶14 The division considered—and rejected—some of the trial court’s stated
reasons for determining that Madrid failed to establish a prima facie case of
6
discrimination. For example, it rejected the court’s apparent reliance on its
observations that a Black juror replaced J.T. and that Madrid was Hispanic rather
than Black, explaining that prior caselaw rendered those facts irrelevant to a Batson
analysis. Madrid I, ¶¶ 16–17; see also People v. Collins, 187 P.3d 1178, 1184 (Colo.
App. 2008); People v. Burke, 937 P.2d 886, 888 (Colo. App. 1996). The division also
concluded that the trial court improperly relied on the prosecution’s arguments
that it had minimal time to question J.T. and that J.T.’s questionnaire lacked detail,
as other potential jurors with similar circumstances were seated without the lack
of information being an issue. Madrid I, ¶ 18. Thus, the division determined that
the trial court erred when it found that Madrid hadn’t made a prima facie case of
racial discrimination. Id. at ¶ 20.
¶15 The division implicitly accepted the trial court’s assertion that it stopped its
analysis before moving onto step two of Batson. Id. at ¶¶ 7, 22. So, the division
remanded the case to the trial court. Id. at ¶¶ 21–22. “Because the trial court did
not complete the three-step Batson analysis,” the division directed the trial court
to “take additional evidence and allow further argument at the request of either
party.” Id. at ¶ 22.
¶16 In 2017, the district court commenced remand proceedings to complete the
fact finding necessary for Batson’s second and third steps, almost five years after
the original trial.
7
¶17 At the outset, Madrid objected to the prosecution offering race-neutral
justifications that hadn’t been stated during the 2012 jury trial. The district court
overruled the objection because the remand order explicitly instructed it to “take
additional evidence and allow further argument at the request of either party” and
because its previous ruling hadn’t extended beyond the first step of the Batson
analysis.
¶18 Because the trial court hadn’t made express findings related to the
prosecution’s stated race-neutral justifications for its strike of J.T. (Batson’s second
step), the prosecutor who conducted voir dire testified at the remand hearing to
complete the record. She acknowledged that she initially didn’t remember who
J.T. was, but her recollection of him gradually improved as she reflected on jury
selection in the case. She described J.T.’s demeanor after being 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.” She
also acknowledged that he “warm[ed] up slightly,” but not enough to assuage her
concerns that “he really didn’t want to be here for some reason” and that she
lacked information on why that might be.
¶19 The prosecutor explained her initial description of J.T. as “nonresponsive,”
clarifying that she believed that “unengaged is a better word.” She also addressed
8
her comment at trial about J.T.’s hearing, contending that it related to his lack of
engagement:
[I]t goes to the whole, I don’t want to be here, and I’m not engaging
with you. It doesn’t matter to me why the person is not engaging with
me. If it’s because they can’t hear and they’re willing to tell us that,
then we might be able to make an accommodation. But if it’s because
they can’t hear and they are unwilling to tell us that, again, they don’t
want to be here.
When asked directly whether his hearing was the issue, she affirmed, “No,
absolutely not.”
¶20 On cross-examination by defense counsel, the prosecutor acknowledged
that she had spent less than a minute questioning J.T. and never questioned him
about anything on his questionnaire. She also confirmed that she had failed to
make a contemporaneous record that J.T. sighed and was slow to take his seat. She
claimed that while she made no explicit record that J.T. seemed unhappy to be
called forward, she had used the term “nonresponsive” to suggest as much.
¶21 At the end of the remand hearing, the district court determined that the
prosecution met its step-two burden to provide facially race-neutral reasons for
striking J.T. Then, in its step-three analysis, the court rejected Madrid’s claims that
the prosecutor’s explanations were pretextual, concluding instead that Madrid
failed to meet his burden to prove by a preponderance of the evidence that the
prosecution engaged in purposeful discrimination.
9
C. Second Appeal
¶22 Madrid appealed again, and a second division of the court of appeals
reversed. People v. Madrid, 2021 COA 70, 494 P.3d 624 (“Madrid II”).
¶23 The division 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.” Id. at ¶ 35,
494 P.3d at 631; see also Valdez v. People, 966 P.2d 587, 592 n.11 (Colo. 1998).
Accordingly, the division determined that the district court’s observation that J.T.
didn’t want to be there—an observation that the prosecution itself never voiced at
trial—was improper. Madrid II, ¶ 30, 494 P.3d at 630.
¶24 More broadly, the division held 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.” Id. at ¶ 4, 494 P.3d at 626.
¶25 Next, the division conceded that the remand order required the district
court to “take additional evidence and allow further argument at the request of
either party.” Id. at ¶ 42, 494 P.3d at 632. And it also acknowledged that it reviews
a district court’s final determination at Batson’s third step for clear error. Id. But
it concluded that the remand court’s reliance on the prosecution’s new remand
justification amounted to clear error. Id.
10
¶26 So, the division reversed Madrid’s judgment and remanded for a new trial,
finding it “impossible to . . . separate [the remand court’s] reliance on the
justifications the prosecution articulated at trial from [the remand court’s] reliance
on the impermissible post-remand justifications.” Id. at ¶ 43, 494 P.3d at 632–33.
¶27 The prosecution petitioned for review of the division’s decision, and we
granted certiorari.1
II. Analysis
¶28 We begin our analysis by discussing the three-step Batson framework and
its constitutional underpinnings. We then briefly consider the standard of review
applicable here before turning to the core issue before us today: Whether new race-
neutral justifications, separate from those offered at trial, are admissible on
remand at Batson’s second step. After concluding that such evidence is
inadmissible, we consider whether the prosecution offered new arguments here,
and, if so, what the appropriate remedy is when the trial court admitted such
arguments in compliance with a remand order from the court of appeals.
1 We granted certiorari to review the following issue:
Whether a trial court, when conducting remand proceedings under
Batson v. Kentucky, 476 U.S. 79 (1986), and People v. Rodriguez, 2015 CO
55, 351 P.3d 423, may consider additional evidence necessary to
complete each step of the Batson analysis.
11
A. Batson Framework
¶29 To understand Batson, it’s helpful to know some of the statutory bases for
excusing prospective jurors. For example, under section 16-10-103, C.R.S. (2022),
the legislature requires a trial court, upon a party’s challenge, to remove
prospective jurors who will not be impartial. People v. Abu-Nantambu-El, 2019 CO
106, ¶ 16, 454 P.3d 1044, 1048. Such challenges are dubbed “challenges for cause”
and include situations where a prospective juror “evinc[es] enmity or bias toward
the defendant or the state.” § 16-10-103(1)(j).
¶30 Under section 16-10-104, C.R.S. (2022), the legislature also provides for a
certain number of “peremptory challenges” based on the nature of the case.
Unlike for-cause challenges, peremptory challenges 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, 2019 CO 105, ¶ 19,
455 P.3d 332, 337 (quoting People v. Lefebre, 5 P.3d 295, 303 (Colo. 2000), overruled
on other grounds by People v. Novotny, 2014 CO 18, ¶ 27, 320 P.3d 1194, 1203). Such
strikes typically can be used to remove prospective jurors without specifying a
reason, though the use of peremptory strikes is necessarily constrained by the
United States and Colorado Constitutions. Abu-Nantambu-El, ¶ 19, 454 P.3d at
1049.
12
¶31 The 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. U.S. Const. amend. XIV, § 1; Batson, 476 U.S.
at 89; see also Colo. Const. art. II, §§ 16, 25; People v. Wilson, 2015 CO 54M, ¶ 10,
351 P.3d 1126, 1131. To secure this right, the Supreme Court created a three-step
test for determining when a peremptory strike has been exercised in a
discriminatory manner. Batson, 476 U.S. at 96–98.
¶32 Step one requires the objecting party to make a prima facie showing that the
challenged peremptory strike was based on the prospective juror’s race. People v.
Ojeda, 2022 CO 7, ¶ 22, 503 P.3d 856, 862. The standard the objecting party must
meet in this first step is “not a high one,” Valdez, 966 P.2d at 590, and is “easily
satisfied,” Craig v. Carlson, 161 P.3d 648, 655 (Colo. 2007). On the contrary, “[a]s
long as the totality of the circumstances raises an inference of racial motivation,
the defendant has satisfied his step-one burden.” People v. Rodriguez, 2015 CO 55,
¶ 10, 351 P.3d 423, 428–29. The objecting party need not show a “pattern” of
strikes; even a single strike can be sufficient to give rise to a prima facie showing
under this step. Id., 351 P.3d at 428.
13
¶33 In step two, the burden of production shifts to the prosecution, which must
offer a race-neutral explanation for the challenged peremptory strike. 2 Batson,
476 U.S. at 97–98. A race-neutral explanation is one “based on something other
than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360 (1991). The
explanation “need not rise to the level justifying exercise of a challenge for cause.”
Batson, 476 U.S. at 97. Rather, the prosecution must simply provide “any race-
neutral justification for the strike, regardless of implausibility or persuasiveness.”
Ojeda, ¶ 24, 503 P.3d at 862. The step-two analysis “turns on the facial validity of
the proponent’s explanation.” Id.
¶34 During step three, the defendant may rebut the prosecution’s race-neutral
explanations. The court then considers “the persuasiveness of the prosecutor’s
justification for his peremptory strike” in light of any such rebuttal. Miller-El v.
Cockrell, 537 U.S. 322, 338–39 (2003) (“Miller-El I”); see also Wilson, ¶ 14, 351 P.3d at
1132. This includes consideration of “all of the circumstances that bear upon the
issue of” purposeful discrimination, People v. Beauvais, 2017 CO 34, ¶ 23, 393 P.3d
509, 517 (quoting Snyder v. Louisiana, 552 U.S. 472, 478 (2008)), such as the striking
2 Here, we refer to the responding party as the prosecution for simplicity’s sake
because the responding party was the prosecutor in this case. However, the same
framework applies when a prosecutor is the objecting party during step one of
Batson. See Georgia v. McCollum, 505 U.S. 42, 59 (1992).
14
party’s demeanor, the reasonableness of the proffered race-neutral explanations,
and whether the rationales are rooted in accepted trial strategy, Miller-El I, 537 U.S.
at 339. The third step also requires the court to assess whether the prosecution’s
explanations are pretextual, which the court may infer if the prosecution’s
justifications shift over time or “reek[] of afterthought.” Miller-El v. Dretke,
545 U.S. 231, 246 (2005) (“Miller-El II”); see also Foster v. Chatman, 578 U.S. 488, 514
(2016).
¶35 Step three culminates with the court determining whether the objecting
party has established purposeful discrimination. Batson, 476 U.S. at 98; Valdez,
966 P.2d at 590. The resolution of this question requires courts to apply a
substantial-motivating-factor test; that is, if the court determines that a
peremptory strike was “motivated in substantial part by discriminatory intent,”
the court may conclude that the strike was purposefully discriminatory under
Batson. Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019) (quoting Foster, 578 U.S.
at 513); see also Ojeda, ¶ 27, 503 P.3d at 863. Thus, because the burden of persuasion
stays with the objecting party, the court should sustain a Batson challenge only if
the objecting party proves by a preponderance of the evidence that the strike was
15
substantially motivated by discriminatory intent.3 Ojeda, ¶ 28, 503 P.3d at 863;
Beauvais, ¶ 24, 393 P.3d at 517.
¶36 Finally, if an appellate court determines that the trial court’s Batson findings
are insufficient or incomplete, the proper remedy “is to remand the case to the trial
court with directions to conduct the three-part Batson analysis and make the
required factual findings.” Rodriguez, ¶ 2, 351 P.3d at 426.
B. Standard of Review
¶37 This court has long distinguished between questions of law, which we
review de novo, and questions of fact, which trigger deference to the trial court’s
judgments. E.g., People v. Allison, 86 P.3d 421, 426 (Colo. 2004). Hence, we review
a trial court’s factual determination as to the admissibility of evidence for an abuse
of discretion, but the broader question of whether a type of evidence is ever
admissible constitutes a legal question that we review de novo. See People v.
Johnson, 2021 CO 35, ¶¶ 15–16, 486 P.3d 1154, 1158. Similarly, “[i]nterpretation of
an appellate court mandate and the determination of whether the district court
complied with it on remand are both questions of law subject to de novo review.”
3As we emphasized in Ojeda, ¶¶ 50–52, 503 P.3d at 866, the court’s ultimate finding
at step three is distinct from a conclusion that the prosecution is racist or harbored
a racial bias. A successful Batson challenge “is not a determination that the
prosecutor . . . harbored ill will or animosity” toward a prospective juror, a
defendant, or a racial group more broadly. Id. at ¶ 50, 503 P.3d at 866.
16
Thompson v. Catlin Ins. Co. (UK), 2018 CO 95, ¶ 22, 431 P.3d 224, 229 (quoting
Gannon v. State, 368 P.3d 1024, 1039 (Kan. 2016)). So here, we review the propriety
and scope of the division’s remand order de novo.4 See id.C. Prohibition of New Race-Neutral Justifications on
Remand
¶38 Courts have long recognized that shifting explanations for a peremptory
strike signal pretext, e.g., Foster, 578 U.S. at 507, and pretextual explanations
“indicat[e] the very discrimination the explanations were meant to deny,”
Miller-El II, 545 U.S. at 265.
¶39 In Miller-El II, the Supreme Court considered a prosecutor’s shifting
explanations for a challenged peremptory strike. Id. at 245–46. There, a prosecutor
mischaracterized a prospective Black juror’s answer to a question about his
willingness to impose the death penalty. Id. at 244. When defense counsel pointed
out this misstatement, the prosecutor “neither defended what he said nor
4 We recognize that “[o]n appeal, each step of the trial court’s Batson analysis is
subject to a separate standard of review.” Rodriguez, ¶ 13, 351 P.3d at 429. The
trial court’s determinations at steps one and two receive de novo review, while the
final determination of whether the objecting party has successfully met its step-
three burden is reviewed for clear error. Valdez, 966 P.2d at 590–91. Because we
focus on the remand order and the evidence admissible under it, we need not
wade into these Batson-specific standards of review applicable to the trial court’s
decision-making.
17
withdrew the strike.” Id. at 246. Instead, the prosecutor changed his explanation,
offering a new race-neutral justification to support his strike. Id. The Supreme
Court concluded that the prosecution’s new explanation was improper, noting
that it was “difficult to credit” and “reek[ed] of afterthought.” Id. The Court also
recognized that the state court’s ready acceptance of this new explanation was
improper, both because of its implausibility and “its pretextual timing.” Id.
¶40 While Miller-El II doesn’t directly address Batson remands, its broader
skepticism of a prosecutor’s changing race-neutral justifications remains
instructive:
[W]hen illegitimate grounds like race are in issue, a prosecutor simply
has got to state his reasons as best he can and stand or fall on the plausibility
of the reasons he gives. A Batson challenge does not call for a mere
exercise in thinking up any rational basis. If the stated reason does
not hold up, its pretextual significance does not fade because a trial
judge, or an appeals court, can imagine a reason that might not have
been shown up as false.
Id. at 252 (emphasis added).
¶41 Several other jurisdictions have also found this passage illuminating. For
example, the Seventh Circuit, relying on this passage, 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 offered after the fact.” United States v. Taylor, 636 F.3d 901, 905 (7th Cir.
2011). And the Third, Ninth, and Eleventh Circuits have all reached similar
18
conclusions. See Holloway v. Horn, 355 F.3d 707, 725 (3d Cir. 2004) (“[W]here a
prosecutor makes his explanation for a strike a matter of record, our review is
focused solely upon the reasons given.”); Love v. Cate, 449 F. App’x 570, 572 (9th
Cir. 2011) (rejecting a prosecutor’s post-trial explanation because “the prosecutor
never stated to the state trial court that he relied on these characteristics, even
though Batson required him to articulate his reasons”); McGahee v. Ala. Dep’t of
Corr., 560 F.3d 1252, 1269 (11th Cir. 2009) (rejecting state appellate court’s
acceptance of a prosecutor’s later explanation for a strike because the “State never
offered such a full explanation” at trial); see also Chamberlin v. Fisher, 885 F.3d 832,
856 (5th Cir. 2018) (en banc) (Costa, J., dissenting) (“[N]o other court applying
Miller-El II has relied on reasons beyond those given at trial when comparing
jurors . . . .”).
¶42 Even so, the prosecution emphasizes that this court has authorized a trial
court handling a Batson remand to conduct “further proceedings as it deems
necessary,” see Rodriguez, ¶ 20, 351 P.3d at 431, which endows remand courts with
substantial discretion in ferreting out purposeful discrimination or the absence of
it. While that may be true, such discretion is not unbounded. First, post hoc
arguments for a peremptory challenge aren’t “necessary” when the prosecution
has already stated its reasons for the strike at trial. Second, in Rodriguez, the word
“necessary” modifies “proceedings.” See id. While a court has broad discretion to
19
conduct proceedings under this rule, Rodriguez doesn’t allow a court to avoid its
obligation to obey other relevant evidentiary or constitutional constraints. Thus,
we find unpersuasive the assertion that Rodriguez should be read as essentially
giving remand courts carte blanche to admit evidence without limitation.
¶43 The prosecution also analogizes Batson remands to suppression-hearing
remands, arguing that People v. Morehead, 2019 CO 48, ¶ 13, 442 P.3d 413, 418, and
People v. Tallent, 2021 CO 68, ¶ 18, 495 P.3d 944, 950, require deference to a remand
court’s determination of what evidence to hear. But these areas of the law are
fundamentally different. First, Batson requires an analysis under its strict three-
step framework, which inherently constrains a court’s discretion in conducting a
related hearing. Second, unlike suppression hearings, Batson remand hearings
involve fact finding related to events that occurred on the record and in front of
the court. Thus, Morehead and Tallent are inapposite.
¶44 With these points of law in mind, we return to the facts at hand.
D. Application
¶45 At trial, the prosecution received an adequate opportunity to share its race-
neutral reasons for striking J.T., despite the court’s declaration that it stopped its
Batson analysis at step one. After Madrid challenged the prosecution’s strike of
J.T., the prosecution immediately offered its race-neutral justifications for the
strike, and the court even clarified and confirmed the prosecution’s asserted race-
20
neutral justifications in addition to improperly adding its own justifications for the
strike. Further, the following day, the court offered both parties the opportunity
to supplement the previous day’s record. Because the prosecution had an
adequate opportunity to state its race-neutral reasons for striking J.T., we turn to
whether the prosecution’s justifications shifted between jury selection and the
remand hearing.
¶46 At trial, the prosecution offered three justifications for striking J.T.: (1) the
prosecution lacked information about J.T.; (2) J.T. was “sort of completely
nonresponsive”; and (3) J.T. appeared to have a hearing issue. However, the trial
court summarized the prosecution’s stated race-neutral justifications as: (1) the
lack of information about J.T. from his questionnaire; (2) the lack of information
about J.T. due to the prosecution’s brief opportunity for questioning; and (3) J.T.
potentially being hard of hearing. The prosecution did nothing to correct the trial
court’s perception of its race-neutral justifications except to explain that “[J.T.]
appears to and I could have just been mumbling, but he appeared to [have a
hearing issue] to me.”
¶47 On remand, a division of the court of appeals instructed the district court to
“take additional evidence and allow further argument at the request of either
party.” Thus, the remand court did not limit the prosecution to its previously
offered trial justifications. As the remand court explained:
21
I don’t know if the court [of appeals] could be any clearer than that:
“at the request of either party.” The court didn’t say only the Defense
gets to present additional evidence or make argument or the People
are limited to whatever evidence they presented before or whatever
arguments they advanced before. It says, “The Court shall take
additional evidence and allow further argument at the request of
either party.”
¶48 Perhaps recognizing the legal peril that it could invite if it sought to plow
new ground, the prosecution offered race-neutral justifications that, it argued,
“expand[ed] upon the record” and served as “a clarification of what we had
previously said” at trial. The district court summarized the prosecution’s race-
neutral justifications on remand as falling into three overarching categories: (1) J.T.
was “nonresponsive, nonparticipatory, and fail[ed] to engage and connect”;
(2) there was “not enough information about [J.T.]”; and (3) “[J.T.] did not want to
be here.”
¶49 To be sure, there is some overlap between the prosecution’s justifications at
trial and on remand. Both times the prosecution justified its strike by stating that
it lacked adequate information about J.T. And the evidence used to support this
facially race-neutral justification—namely, that J.T.’s questionnaire was thin and
the prosecution had little time to question him—remained consistent. However,
the prosecution also offered a new race-neutral justification on remand.
¶50 The prosecution for the first time justified striking J.T. because it appeared
as though he “simply did not want to be here.” Indeed, at the remand hearing, the
22
prosecution reiterated this as a primary reason for the strike, mentioning some
variation on that theme almost a dozen times. But at trial, the prosecutor asserted
that “the real problem is we don’t know very much about [J.T.]” The prosecutor
mentioned J.T.’s hearing and unresponsiveness before reiterating that “[w]e have
very little information on him . . . . Terribly uncomfortable with him where we
have very little information.” This constituted a shift in rationales for the
peremptory strike that happened to track the trial court’s independent
observations about J.T.
¶51 The prosecution supported its new justification—that J.T. didn’t want to be
there—by suddenly explaining for the first time (five years after trial) that “[w]hen
[J.T.’s] name 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” in the prospective jury panel. But again, the prosecution said
nothing about this behavior at trial. So, as the court of appeals correctly
acknowledged, “Such observations may have been accurate, but they were not the
reasons the prosecutor stated for excusing [J.T.]” Madrid II, ¶ 39, 494 P.3d at 632.
¶52 Thus, we conclude that the prosecution offered a new justification for the
strike on remand, separate from the justifications it offered at trial.
23
¶53 Furthermore, the prosecution’s new remand arguments simply echoed the
trial court’s own impermissible observations about J.T.’s behavior. At trial, the
court observed:
I also note that my read of [J.T.], when I first called his name was that
he didn’t seem like he wanted to be here. . . . [I]t seemed to me that
based on his demeanor, he doesn’t want to be here, or at least when I
called his name he didn’t want to be here. He seemed disappointed
that I called his name when he started walking to the front of the
courtroom.
¶54 These observations directly track the prosecution’s new remand justification
that J.T. didn’t want to be there and that he “did not appear to be delighted to
know that he had now been asked to join the people in front of the bar.” In our
eyes, the prosecution’s later adoption of the trial court’s observations is particularly
problematic, given that the court was likely to accept as valid its own justifications
that it had previously, and erroneously, offered at trial.
¶55 We aren’t persuaded otherwise by the prosecution’s argument that on
remand it merely elucidated the race-neutral justifications it had offered at trial.
On remand, the prosecution explained that its initial justification that J.T. possibly
suffered from a hearing issue “goes to the whole, I don’t want to be here, and I’m
not engaging with you.” However, even the prosecution explicitly affirmed later
that hearing was not the issue.
¶56 The prosecution similarly asserts that its trial statement that J.T. was “sort
of completely nonresponsive” was really an attempt to articulate that J.T. appeared
24
as though he didn’t want to be there. But the prosecution’s only mention of J.T.’s
nonresponsiveness at trial was in asserting that J.T. had a hearing issue—a
justification that it discarded on remand. Notably, the prosecution didn’t correct
the trial court when it failed to include J.T.’s lack of engagement in its summary of
the prosecution’s race-neutral justifications. So, while J.T.’s nonresponsiveness
may be a plausible explanation for the strike, we still conclude that the prosecution
shifted its justification on remand, offering a new reason rather than merely
explaining what it had said at trial.
¶57 The prosecution offered—and the remand court allowed—these new
arguments because of the division’s improper remand order, which broadly
instructed the remand court to “take additional evidence and allow further
argument at the request of either party” without limitation. By instructing the
court to take additional evidence “at the request of either party,” this order
extended beyond the requirements of Rodriguez, which merely directs trial courts
to “conduct further proceedings as it deems necessary on remand” to complete a
Batson analysis. Rodriguez, ¶ 20, 351 P.3d at 431. Thus, we conclude that the
25
remand order was erroneous, and we must now determine whether the error
warrants reversal and a new trial.5
E. Remedy
¶58 “Ordinarily, when a trial court has not adequately conducted the Batson
analysis, the appropriate procedure is to remand the case for more detailed
findings by the trial court.” Rodriguez, ¶ 19, 351 P.3d at 431 (quoting Craig,
161 P.3d at 654). Of course, that is what the Madrid I division did in this very case.
And, we have noted, practical problems created by the passage of time are not
necessarily a legal barrier to remand. Id. at ¶ 20, 351 P.3d at 431 (“The passage of
time may create challenges for the trial court on remand, but those challenges do
5 We recognize that differentiating between elaboration of an initial race-neutral
justification and the development of a new justification on remand can be
difficult. In other contexts, we give trial courts broad discretion to make difficult
evidentiary determinations. See, e.g., People v. Melillo, 25 P.3d 769, 773 (Colo. 2001)
(relating to evidentiary determinations under CRE 401 and CRE 403). We do so
here, too. As with other evidentiary rulings, appellate courts should review a
remand court’s determination of what arguments are barred as a new justification
for an abuse of discretion. See People v. Moore, 2021 CO 26, ¶ 26, 485 P.3d 1088,
1095. An abuse of discretion occurs when the trial court’s ruling is manifestly
arbitrary, unreasonable, unfair, or based on an erroneous understanding of the
law. People v. Gutierrez, 2018 CO 75, ¶ 11, 432 P.3d 579, 581. To the extent that the
district court on remand made a finding that the prosecution’s race-neutral
justification for striking J.T. was not new, we conclude that its finding was
manifestly unreasonable.
26
not alter the structure of the Batson analysis or relieve Rodriguez of his burden.”).
This much is settled law.
¶59 The remedy question before us now, however, is different. The problem is
not a lack of findings; it’s that error is baked into the remand court’s otherwise
thorough three-part Batson analysis. Plus, extraordinary factors contribute to the
issues surrounding this case, including that twelve years have passed since the
initial jury selection at issue and that the prosecution has already received two
opportunities to offer its step-two justifications. Therefore, we must evaluate what
remedy to use in the unusual circumstances with which we’re now confronted.
¶60 There are two standards of reversal potentially applicable here: structural
error and constitutional harmless error. A structural error is one that “require[s]
automatic reversal without individualized analysis of how the error impairs the
reliability of the judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 10,
288 P.3d 116, 119. Constitutional harmless error analysis involves an error of a
constitutional dimension that is preserved by objection. Id. at ¶ 11, 288 P.3d at 119.
These errors “require reversal unless the review court is ‘able to declare a belief
that [the error] was harmless beyond a reasonable doubt.’” Id. (alteration in
original) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Under the standard
for constitutional harmless error, the prosecution bears the burden of proving that
the error was harmless beyond a reasonable doubt. Id.27
¶61 Today, we need not decide whether the erroneous Batson analysis that
followed the improper remand order should prompt structural or constitutional
harmless error review because reversal is warranted under either standard.
Madrid preserved the issue through his objection to new arguments on remand,
which implicates his constitutional right to a jury selected without the taint of
racial discrimination. See Batson, 476 U.S. at 85. This triggers, at the very least,
constitutional harmless error analysis. See Johnson, ¶ 17, 486 P.3d at 1158. Thus,
we consider whether “there is a reasonable possibility that the [error] might have
contributed to the conviction.” Hagos, ¶ 11, 288 P.3d at 119 (alteration in original)
(quoting Chapman, 386 U.S. at 24).
¶62 Like the Madrid II division, we find it impossible to retroactively disentangle
how the error affected the subsequent remand proceedings. We have no way of
determining how the prosecution’s testimony would have unfolded if properly
restricted to the justifications previously offered at trial. Further, the district court
itself recognized that the prosecution’s stated reasons for striking J.T. “are all really
interrelated,” which leaves us simply to speculate how the court might have ruled
on Madrid’s Batson challenge without factoring in the impermissible argument.
On the unusual record before us, we find it impossible to determine whether a
Batson violation occurred. Given the exceptional circumstances with which we’re
28
confronted and considering the importance of the constitutional rights at stake, we
conclude that we must reverse.
¶63 Because we cannot confidently declare that the error injected by the remand
order into the proceedings was harmless beyond a reasonable doubt, Madrid is
entitled to a new trial.
III. Conclusion
¶64 We affirm the judgment of the court of appeals, reverse Madrid’s judgment
of conviction, and remand for a new trial.
CHIEF JUSTICE BOATRIGHT dissented.
29
CHIEF JUSTICE BOATRIGHT, dissenting.
¶65 The majority concludes that when a trial court conducts remand
proceedings under Batson v. Kentucky, 476 U.S. 79 (1986), it cannot consider race-
neutral explanations for a peremptory strike that weren’t articulated at trial. Maj.
op. ¶¶ 2, 28. The majority purports to base this conclusion on Miller-El v. Dretke,
545 U.S. 231 (2005). Maj. op. ¶¶ 38–41. But Miller-El didn’t go nearly that far; it
simply recognized the practical reality that, in many cases, these explanations may
be less credible because they “reek[] of afterthought.” Miller-El, 545 U.S. at 246. In
so doing, it recognized that Batson trusts the trial court to consider each
explanation (whether offered at trial or not), assess each for pretext, and make the
right call, subject to clear error review. The majority departs from this framework
by finding an evidentiary bar where none exists. In effect, it declares that any
additional justifications, no matter what the circumstances, are irrelevant as a
matter of law. It does so needlessly; parties are already well equipped to respond
when a striking party offers new justifications for a strike. And the majority does
so despite the pivotal role that trial courts play in assessing peremptory challenges
for racial discrimination. As such, I respectfully dissent.
¶66 The exclusion of citizens from jury service on account of race is “a primary
example of the evil the Fourteenth Amendment was designed to cure.” People v.
Rodriguez, 2015 CO 55, ¶ 9, 351 P.3d 423, 428 (quoting Batson, 476 U.S. at 85).
1
Accordingly, the Supreme Court designed the three-step Batson test “to ferret out
the unconstitutional use of race in jury selection.” Miller-El, 545 U.S. at 266 (Breyer,
J., concurring). At Batson’s first step, the objecting party must make a prima facie
showing that a peremptory strike was based on the juror’s race. Rodriguez, ¶ 10,
351 P.3d at 428. At step two, the proponent of the strike must offer “a race-neutral
explanation [for the strike] ‘related to the particular case to be tried.’” Id. at ¶ 11,
351 P.3d at 429 (quoting Batson, 476 U.S. at 98). “[T]he bar at step two is not high.”
Id. An explanation doesn’t need to be “persuasive, or even plausible”—it must
only be race neutral. Purkett v. Elem, 514 U.S. 765, 768 (1995). At step three, the
trial court must determine whether the objecting party has established purposeful
discrimination “in light of all the evidence.” Rodriguez, ¶ 12, 351 P.3d at 429.
¶67 Each step of Batson is subject to a distinct standard of appellate review. Id.
at ¶ 13, 351 P.3d at 429. Step one is subject to de novo review, though the
reviewing court should defer to the trial court’s underlying factual findings. Id.
Likewise, step two is subject to de novo review. Id. But step three—the ultimate
question of whether the opponent of the strike has established purposeful
discrimination—is subject to clear error review. Id. The clear error standard
reflects that Batson step three turns on determinations of credibility; because only
the trial court can evaluate the parties’ and prospective jurors’ demeanor,
appellate courts should ordinarily give “great deference” to the trial court’s
2
step-three findings. Id. (quoting Batson, 476 U.S. at 98 n.21). In other words, step
three findings are highly factual, requiring the trial court to use its discretion.
Thus, the clear error standard applies on appeal.
¶68 In my view, the majority errs by stepping outside of the Batson framework.
Instead, it opts to import the de novo standard of review from other contexts,
including cases involving the Fourth Amendment exclusionary rule and the
mandate rule. Maj. op. ¶ 37 & n.4 (first citing People v. Johnson, 2021 CO 35,
¶¶ 15–16, 486 P.3d 1154, 1158; and then citing Thompson v. Catlin Ins. Co. (UK),
2018 CO 95, ¶ 22, 431 P.3d 224, 229). Nobody asked the court to do this, and for
good reason: This case isn’t about what the court of appeals mandated; it’s about
what the remand court considered when assessing Batson’s third step. Tellingly, the
parties cite only the Batson standards of review in their briefs, and the division
applied the appropriate Batson step-three standard (clear error) in its opinion. See
People v. Madrid, 2021 COA 70, ¶¶ 10, 42, 494 P.3d 624, 627, 632. It’s particularly
difficult to square the majority’s reliance on Johnson—a Fourth Amendment
suppression case—with its later acknowledgment that Batson proceedings are
“fundamentally different” than suppression proceedings because “Batson requires
an analysis under its strict three-step framework.” Maj. op. ¶ 43.
¶69 Respectfully, standards of review aren’t fungible. It isn’t prudent to
transplant a standard from a different context, involving a different constitutional
3
right, and decide that it fits closely enough. Furthermore, it certainly isn’t prudent
to do so on our own initiative. See Galvan v. People, 2020 CO 82, ¶ 45, 476 P.3d 746,
757 (“[W]e adhere to the party presentation principle, which relies on the parties
to frame the issues to be decided and assigns to courts the role of neutral arbiters
of the matters raised.”). The applicable standards of review here are the Batson
standards, which account for the distinct issues involved in each step of the Batson
analysis. Rodriguez, ¶ 13, 351 P.3d at 429. By putting these standards to one side,
the majority not only risks sowing confusion in future Batson appeals—it also
indirectly modifies the Batson case law we and the Supreme Court have built.
¶70 As the division below recognized, this is a Batson step-three case. See
Madrid, ¶¶ 10, 42, 494 P.3d at 627, 632. Whatever one may think of the prosecutor’s
explanations for striking prospective juror J.T., each was race neutral; that is all
Batson’s second step requires. Purkett, 514 U.S. at 768. The remand court therefore
properly proceeded to step three of Batson. There, the remand court had to
determine if the prosecutor’s race-neutral reasons were credible. Madrid only
appealed the court’s step-three findings, framing the issue in his opening brief to
the division as: “Whether the court erred in reaffirming its Batson ruling and
denying Mr. Madrid a new trial on remand, despite evidence establishing
pretext.” The division then proceeded to review the remand court’s step-three
4
findings for clear error.1 Madrid, ¶ 42, 494 P.3d at 632. The division held that the
remand court’s “acceptance of and reliance on the new reasons to deny the Batson
challenge amounts to clear error.” Id. The People appealed this holding, arguing
that the division impermissibly restricted the fact-finding function of remand
courts in Batson proceedings. And though the People argue that the remand court
acted consistently with controlling law and the remand order, they didn’t
challenge the remand order itself.
¶71 Accordingly, I treat this issue for what it is: an assessment of the remand
court’s step-three Batson ruling, which we review for clear error. Rodriguez, ¶ 13,
351 P.3d at 429. Step three requires courts to decide “the ultimate question” of the
Batson inquiry—whether the proponent of a strike engaged in purposeful
discrimination. Id. at ¶ 12, 351 P.3d at 429. At the outset, it is important to
recognize that ferreting out racial discrimination is easier said than done—it’s a
complicated, fact-bound process that requires the trial court to assess not only the
plausibility of arguments, but also the credibility of the people advancing them.
See People v. Wilson, 2015 CO 54M, ¶ 14, 351 P.3d 1126, 1132; Valdez v. People,
1 So too did several of the federal cases cited by the majority. See Maj. op. ¶ 41;
United States v. Taylor, 636 F.3d 901, 906 (7th Cir. 2011) (“Accepting new, unrelated
reasons . . . amounts to clear error[.]”); Love v. Cate, 449 F. App’x 570, 572 (9th Cir.
2011) (“[W]e afford [the remand court] deference and review for clear error.”).
5
966 P.2d 587, 599 (Colo. 1998) (Kourlis, J., dissenting) (“Discrimination is as sly as
it is insidious. It lives in inference, tone, and gesture as much as in action.”).
¶72 So, we’ve cautioned that “the trial court must evaluate all relevant facts” to
guide it through Batson’s third step and, ultimately, determine whether racial
discrimination is at play. Wilson, ¶ 14, 351 P.3d at 1132; see also Rodriguez, ¶ 12,
351 P.3d at 429 (“If the trial court is convinced, in light of all the evidence, that the
proffered reason was pretextual and that the prosecutor actually based his
peremptory strike on the prospective juror’s race, then it must uphold the Batson
challenge.”).
¶73 At bottom, Miller-El (a Batson step-three case) stands for this exact
proposition. The Supreme Court itself has told us as much: “In Miller-El v. Dretke,
the Court made it clear that in considering a Batson objection, or in reviewing a
ruling claimed to be Batson error, all of the circumstances that bear upon the issue
of racial animosity must be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478 (2008)
(emphases added).
¶74 Indeed, it’s clear that the Miller-El Court considered all of the circumstances
involved in that case—including a prosecutor’s shifting justifications for one
strike—when determining that the prosecutor struck Black venire members on
account of their race. In Miller-El, the prosecutor used peremptory challenges to
dismiss 91% of the qualified Black venire members. 545 U.S. at 241. When
6
explaining these strikes, the prosecutor “simply mischaracterized” the testimony
of a Black venire member, falsely claiming that the juror in question would only
vote in favor of the death penalty if rehabilitation were impossible. Id. at 244. The
defense pointed out this mischaracterization, and the prosecutor immediately
offered a new explanation—that the juror’s brother was previously convicted of a
crime. Id. at 245–46.
¶75 Rather than ignoring the prosecution’s new explanation or treating it as
irrelevant as a matter of law, the Supreme Court addressed its plausibility head-
on. See id. at 246. The Court noted, first, that the prosecutor’s timing was
suspicious. Id. But it then proceeded to address “other reasons rendering [the new
explanation] implausible” on the merits. Id. Namely, the juror’s “testimony
indicated he was not close to his brother,” and the prosecution didn’t ask follow-
up questions about the influence of his brother’s conviction, “as it probably would
have done if the family history had actually mattered.” Id. So when the Court said
that “[i]t would be difficult to credit the State’s new explanation, which reeks of
afterthought,” id., it was describing one reason among several that the explanation
was suspect, not limiting the information that courts can consider when assessing
a Batson challenge.
¶76 Separately, the Court discussed the strike of another Black venire member.
Id. at 247. The prosecutor explained that it struck this juror because his responses
7
to questions about the death penalty “were inconsistent.” Id. at 248. The Fifth
Circuit, in upholding the strike, came up with a new explanation that the
prosecutor never articulated: that the second juror was ambivalent about his
ability to impose the death penalty. Id. at 250. The Court chastised the Fifth Circuit
for “thinking up any rational basis” for the strike on the prosecutor’s behalf; in so
doing, the Court stated that “when illegitimate grounds like race are in issue, a
prosecutor simply has got to state his reasons as best he can and stand or fall on
the plausibility of the reasons he gives.” Id. at 252.
¶77 Madrid argues that, by making this statement, the Court meant to say that
prosecutors are held to the justifications that they originally offered at trial and
pretext is inferred whenever the prosecution shifts from those justifications. But
this reading of the “stand or fall” language in Miller-El overlooks the context in
which it was made. The Court made this statement while warning appellate courts
not to invent their own race-neutral justifications for a strike, as the Fifth Circuit
had done when assessing the strike of the second juror; it had little to do with the
prosecutor’s post hoc explanation for striking the first juror. And this statement
doesn’t undercut the fact that the Court did evaluate the prosecutor’s post hoc
explanation for striking the first juror. See id. at 246. It would make no sense for
the Court to consider the post hoc explanation for striking the first juror on the
8
merits if it intended to say, mere paragraphs later, that post hoc explanations for a
strike are per se invalid.
¶78 Since Miller-El, the Court has recognized that shifting explanations “may be
pretextual” while nonetheless continuing to consider those explanations on the
merits. See Foster v. Chatman, 578 U.S. 488, 507–08 (2016). In Foster, for instance, a
prosecutor initially justified a strike by arguing that the juror had a son who was
the defendant’s age; later, the prosecutor relied on the juror’s membership in the
Church of Christ, claiming that the Church’s members were reluctant to vote for
the death penalty. Id.¶79 The Court noted, “[a]s an initial matter,” that “the prosecution’s principal
reasons for the strike shifted over time, suggesting that those reasons may be
pretextual.” Id. at 507. But the Court proceeded to reject both explanations on the
merits. Id. at 508–11. The prosecutor’s initial explanation didn’t hold up because
the state accepted white jurors who had sons near the defendant’s age. Id. at
508–09. And the prosecutor’s new explanation fell flat because the juror
repeatedly swore that he could impose the death penalty, the prosecutor
erroneously claimed that other venire members were struck for their membership
in the Church, and the prosecutor’s notes indicated that the Church took no
position on the death penalty and also stated: “NO Black Church.” Id. at 510–11.
So while the Court ultimately concluded that the second explanation was pretext,
9
the Court didn’t stop its analysis once it had determined that the second
explanation was “new.” See id.; see also Grant v. Royal, 886 F.3d 874, 951 (10th Cir.
2018) (analyzing Foster and noting that the Court considered comparative juror
evidence “[i]n addition to” other evidence of pretext, including the prosecutor’s
shifting explanations for striking Black jurors).
¶80 Thus, the Supreme Court has not barred trial courts from considering post
hoc explanations for a strike. To the contrary, the Court has evaluated all
explanations to determine whether they are pretextual, using the fact that a party
switched explanations as one possible indicator of pretext. This treatment aligns
with the Court’s guidance that “all of the circumstances that bear upon the issue
of racial animosity must be consulted.” Snyder, 552 U.S. at 478. All means all,
including explanations that a party failed to immediately offer and including
whether that timing is suspect.
¶81 In its opinion, the court of appeals went where the Supreme Court has never
gone. The division contravened the Court’s guidance by holding that the trial
court “cannot consider or base its ruling on new justifications offered on remand.”
Madrid, ¶ 4, 494 P.3d at 626. On this appeal, Madrid characterizes the division’s
holding as merely recognizing “the specter of pretext” associated with shifting
justifications. See id. at ¶ 42, 494 P.3d at 632 (quoting United States v. Taylor,
636 F.3d 901, 906 (7th Cir. 2011)). But the division did far more than that; it held
10
that “the reversible error in this case was the district court’s consideration of and
reliance on different justifications for the strike than the ones the prosecutor
articulated at trial.” Id. at ¶ 37, 494 P.3d at 631 (emphasis added).
¶82 Unlike the Supreme Court, the division stopped once it determined that the
prosecutor here articulated additional explanations on remand. See id. at ¶ 30,
494 P.3d at 630. The division relied upon a case from the Seventh Circuit for this
proposition. Id. at ¶ 37, 494 P.3d at 631 (“[Miller-El] 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 offered after the fact.”
(quoting Taylor, 636 F.3d at 905)). But Miller-El never said as much, and Seventh
Circuit precedent isn’t binding on Colorado courts. On the other hand, Supreme
Court precedent is binding, and the Court has instructed us to consider all
circumstances relevant to the issue of racial discrimination. Snyder, 552 U.S. at 478.
The division erred by creating an evidentiary bar instead. In my view, the majority
follows the court of appeals into uncharted territory and concludes that “new”
race-neutral justifications are wholly inadmissible on remand. Maj. op. ¶ 28.
¶83 Beyond being contrary to Supreme Court precedent, this evidentiary bar is
unnecessary. Parties are already well equipped to counter an opposing party’s
shifting justifications for a strike. When a striking party offers new justifications
for a strike on remand, the challenging party’s rebuttal strikes me as obvious and
11
compelling: Any new explanations are less credible because they “reek[] of
afterthought,” Miller-El, 545 U.S. at 246, and likely indicate that the abandoned
explanations are less credible, too. With this ready-made response, striking parties
would offer new explanations at their own peril. Thus, barring lower courts from
even considering post hoc justifications for a strike deprives trial courts of
potentially powerful evidence that the strike was, in fact, racially motivated. In
effect, the majority’s automatic evidentiary bar ultimately harms the truth-seeking
process that Batson was designed to effectuate.
¶84 Moreover, imposing this bar diminishes the “‘pivotal role’ of the trial court”
in the Batson regime. See Wilson, ¶ 18, 351 P.3d at 1133 (quoting Snyder, 552 U.S. at
477). Trial courts have a “duty to distinguish between sham excuses that violate
the Equal Protection Clause and bona fide, race-neutral explanations for a
peremptory strike.” Id. (first citing Hernandez v. New York, 500 U.S. 352, 365 (1991);
and then citing Batson, 476 U.S. at 98 n.21). And trial courts are best positioned to
fulfill that duty; only the trial court can assess the nonverbal demeanor of the
parties and prospective jurors. Id. Recognizing this, we’ve invalidated judicially
created presumptions at Batson’s third step, warning that such presumptions
“arrogate[] the trial court’s step-three duty” to sort legitimate conduct from
discrimination. Id. (invalidating a judicially created presumption that “any
justification unsupported by the record” is pretext). Simply said, presumptions
12
like these are inappropriate because they put a thumb on the scale of decisions best
left for trial courts to decide in the first instance. See id.¶85 We should recognize this same principle today—a presumption that any
post hoc explanation is invalid, merely due to its timing, commandeers the trial
court’s duty to separate legitimate strikes from discriminatory ones. Undeterred,
the majority puts its thumb on the scale: The mere fact that an explanation is
“new,” the majority concludes, means that courts cannot even consider it. Maj.
op. ¶ 28.
¶86 But the line between a “new” explanation and an “old” explanation is not
always crystal clear. This case provides an excellent example. The prosecutor here
explained at trial that she struck J.T., in part, because he was “completely
nonresponsive.” On remand, she explained that she hadn’t meant J.T. was literally
nonresponsive (i.e., he hadn’t refused to answer questions), but that “unengaged
is a better word.” The prosecutor then explained that she had been “concerned
that he really didn’t want to be here for some reason,” that he wasn’t “engaging
with [her],” and that he sighed and was slow to take his seat when his number was
called. It’s unclear what else the prosecutor could have done to explain what
“completely nonresponsive” meant, short of repeating herself verbatim. Could
she have introduced written notes she contemporaneously made at trial reflecting
her concerns? Could her trial co-counsel have testified that she also thought J.T.
13
was unengaged, or that she noticed any of the above behaviors? In these
circumstances, the line between “completely nonresponsive” and “unengaged” is
not immediately apparent. But under the majority’s holding, the two justifications
are so distinct that the latter is categorically forbidden. Maj. op. ¶ 52. Because a
trial court’s failure to precisely draw the line between “new” and “old” evidence
now amounts to reversible error, see Maj. op. ¶ 63, confusion on this issue seems
inevitable.
¶87 In an attempt to provide some guidance, the majority explains that a remand
court’s decision as to whether evidence is “new” should be reviewed for an abuse
of discretion. Maj. op. ¶ 57 n.5; see also People v. Moore, 2021 CO 26, ¶ 26, 485 P.3d
1088, 1095 (“A trial court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair.”). But if that’s so, this case is over. The remand
court here decided that the explanation the People offered on remand was
“generally consistent with the race-neutral reason—or reasons that they advanced
during jury selection.” Following the prosecutor’s testimony, the remand court
“found [her] to be credible”; noted that “[t]he People’s race-neutral reasons are,
number one, that [J.T.] was nonresponsive, a term they say they used as a synonym
to unengaged or nonparticipatory”; and observed that when the prosecutor said
J.T. was nonresponsive, the court had “understood the People to be concerned
about [J.T.’s] responsiveness to [the prosecutor],” including “his attitude about the
14
prospect of being selected to serve on the jury.” Those findings are supported by
the record. Therefore, I see no reason to conclude that this determination was
manifestly arbitrary—it was, after all, based on the remand court’s first-hand
observations and credibility determinations.2 So even if the majority’s test applies,
we shouldn’t grant a new trial here.
¶88 In sum, Batson’s third step requires trial courts to consult “all of the
circumstances that bear upon the issue of racial animosity.” Snyder, 552 U.S. at
478. As the Supreme Court’s own analyses demonstrate, this includes any post
hoc explanations for the strike, in addition to the possibly pretextual timing of
those explanations. See Foster, 578 U.S. at 507–11; Miller-El, 545 U.S. at 245–46. By
creating an evidentiary bar instead, the majority departs from that framework.
This is unnecessary because parties are well equipped to point out the pretextual
timing of an opponent’s shifting explanations, and the trial court is equally well
equipped to recognize racial discrimination. Accordingly, I respectfully dissent.
¶89 Because I would not find a blanket prohibition on new explanations, this
case is not fully resolved in my view. The division below concluded that the
remand court erred by accepting new race-neutral justifications, so it did not need
2The majority concludes that this determination was “manifestly unreasonable”
without further analysis. See Maj. op. ¶ 57 n.5. In my view, that’s insufficient.
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to address Madrid’s remaining arguments; for instance, that the remand court
erred by concluding there were no similarly situated jurors as J.T. Madrid,
¶¶ 29–30, 44, 494 P.3d at 630, 633. I would therefore remand this case to the
division to address those claims under the clear error standard imposed by
Batson’s third step, bearing in mind that it should consult all of the circumstances
that pertain to the issue of racial discrimination.
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