v. Madrid , 2021 COA 70 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 27, 2021
2021COA70
No. 17CA2058, People v. Madrid — No. 17CA2058, People v.
Madrid — Constitutional Law — Fourteenth Amendment —
Equal Protection; Juries — Batson Challenges
In this second direct criminal appeal, the defendant contends
that the district court erroneously denied his objection under
Batson v. Kentucky, 476 U.S. 79 (1986), to the prosecution’s
peremptory strike of an African-American prospective juror. In a
prior appeal, a division of the court of appeals concluded that the
district court erred when it determined that the defendant had not
made a prima facie showing that the peremptory strike was based
on race. The prior division reversed and remanded to the district
court to complete the Batson analysis. Following remand, the
district court conducted further proceedings and concluded that
there had been no Batson violation.
Another division of the court of appeals now concludes, as a
matter of first impression, that where the prosecution articulates its
race-neutral reasons for striking a potential juror during Batson
proceedings at trial, the district court cannot consider or base its
ruling on new justifications offered by the prosecution on remand.
Because the district court erred by allowing the prosecution on
remand to adopt new race-neutral reasons for striking the
prospective juror and then relying on the newly supplied
justifications to deny the defendant’s Batson challenge, the division
reverses and remands for a new trial.
COLORADO COURT OF APPEALS 2021COA70
Court of Appeals No. 17CA2058
Arapahoe County District Court No. 11CR27
Honorable Carlos A. Samour, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Theodore Israel Madrid,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE BROWN
Román and Welling, JJ., concur
Announced May 27, 2021
Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 The People charged Theodore Israel Madrid with one count of
first degree murder and two counts of child abuse resulting in
death in connection with the death of his then girlfriend’s two-year-
old son. The primary disputes at trial centered on the cause of the
child’s injuries and Madrid’s mental state — Madrid argued that the
child’s death was a tragic accident. After a nine-day trial, the jury
convicted Madrid as charged. The district court sentenced him to
life without the possibility of parole for murder and to concurrent
sentences on the child abuse counts.
¶2 Madrid appealed his conviction, contending, as relevant here,
that the district court erroneously denied his objection under
Batson v. Kentucky, 476 U.S. 79 (1986), to the prosecution’s
peremptory strike of an African-American1 prospective juror. People
v. Madrid, (Colo. App. No. 13CA0298, Jan. 12, 2017) (not published
pursuant to C.A.R. 35(e)). A division of this court concluded that
the district court erred when it determined that Madrid failed to
make a prima facie showing that the peremptory strike was based
1The prospective juror did not disclose his race or ethnicity, so we
cannot determine if he identified as African-American or Black or
with another racial group. The prosecution and defense refer to
him as African-American, so we adopt the same nomenclature.
1
on race. Thus, it reversed and remanded to the district court to
complete the Batson analysis.
¶3 Following remand, the district court conducted further
proceedings and concluded that there had been no Batson violation.
¶4 Madrid appeals again, contending that the district court erred
by, among other things, accepting on remand new race-neutral
explanations for the strike that the prosecutor had not articulated
during the Batson challenge at trial. We conclude that, where the
prosecution articulates its race-neutral reasons 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. Consequently, we reverse and remand for a new
trial.
I. Applicable Law and Standard of Review
¶5 The Equal Protection Clause of the Fourteenth Amendment
guarantees to the defendant that the state will not discriminate
based on race in the selection of a jury. U.S. Const. amend. XIV;
Colo. Const. art. II, §§ 16, 25; Batson, 476 U.S. at 85-86; Valdez v.
People, 966 P.2d 587, 589 (Colo. 1998). The United States Supreme
Court has recognized that the exclusion of citizens from jury service
2
based on race “constitutes a primary example of the evil the
Fourteenth Amendment was designed to cure.” Batson, 476 U.S. at
85; see also People v. Rodriguez, 2015 CO 55, ¶ 9. The exercise of
even a single peremptory challenge on the basis of race violates the
Fourteenth Amendment. Foster v. Chatman, 578 U.S. ___, ___, 136
S. Ct. 1737, 1747 (2016); Snyder v. Louisiana, 552 U.S. 472, 478
(2008).
¶6 Every defendant, no matter the nature of the crime they are
accused of having committed, has the “right to be tried by a jury
whose members are selected pursuant to nondiscriminatory
criteria.” Batson, 476 U.S. at 85-86. “Racial discrimination in
selection of jurors harms not only the accused whose life or liberty
they are summoned to try” but “touch[es] the entire community.”
Id. at 87. It undermines public confidence in the fairness of our
system of justice. Id. And it “shamefully belittles minority jurors
who report to serve their civic duty only to be turned away on
account of their race.” State v. Sassen Van Elsloo, 425 P.3d 807,
844 (Wash. 2018) (McCloud, J., concurring) (plurality opinion)
(quoting State v. Saintcalle, 309 P.3d 326, 332 (Wash. 2013)
(plurality opinion)); see also Batson, 476 U.S. at 87; Fields, 732
3
P.2d at 1151. A person’s race is simply unrelated to their fitness to
serve as a juror. Batson, 476 U.S. at 87; Valdez, 966 P.2d at 589.
¶7 Batson outlines a three-step process for evaluating claims of
racial discrimination in jury selection under the Equal Protection
Clause. 476 U.S. at 93-98. First, a defendant must make a prima
facie showing that the prosecution excluded a potential juror
because of race. Valdez, 966 P.2d at 590. This standard is “easily
satisfied.” Craig v. Carlson, 161 P.3d 648, 655 (Colo. 2007). “As
long as the totality of the circumstances raises an inference of racial
motivation, the defendant has satisfied his step-one burden.”
Rodriguez, ¶ 10; see also Valdez, 966 P.2d at 590 (“The prima facie
standard is not a high one . . . .”).
¶8 Second, if the defendant establishes a prima facie case, the
burden of production shifts to the prosecution to provide a race-
neutral explanation for the peremptory strike. Valdez, 966 P.2d at
590. Again, this burden is not high. “[T]he prosecution need not
provide an explanation that is persuasive or even plausible, so long
as the reason is facially race-neutral.” Id.
¶9 Third, if the prosecution tenders a race-neutral explanation,
the trial court must allow the defendant an opportunity to rebut the
4
explanation “by showing, for example, that it is pretext.” Id. Then
the trial court must determine the merits of the Batson challenge —
“[t]he question is whether the court can find by a preponderance of
the evidence that one or more potential jurors were excluded
because of race.” Id. The critical question at this stage is the
persuasiveness of the prosecutor’s justification for the peremptory
strike. Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 338 (2003).
But the burden of persuasion remains on the defendant who alleges
discrimination in jury selection. Valdez, 966 P.2d at 589.
¶ 10 On appeal, each step of the Batson analysis is subject to a
separate standard of review. Valdez, 966 P.2d at 590. We review
de novo whether the defendant established a legally sufficient prima
facie case that a juror was excluded based on race — though we
defer to the trial court’s underlying factual findings (e.g., credibility
determinations or whether the juror was a member of a cognizable
racial group). Id. at 591; see also Rodriguez, ¶ 13. Similarly, at
step two, the facial validity of the prosecutor’s justification “is a
question of law warranting de novo review.” Valdez, 966 P.2d at
590. However, the trial court’s final determination as to the
existence of racial discrimination is an issue of fact that we review
5
for clear error. Rodriguez, ¶ 13; see also Snyder, 552 U.S. at 477(“On appeal, a trial court’s ruling on the issue of discriminatory
intent must be sustained unless it is clearly erroneous.”); Batson,
476 U.S. at 98 n.21 (“Since the trial judge’s findings in the context
under consideration [at step three] largely will turn on evaluation of
credibility, a reviewing court ordinarily should give those findings
great deference.”).
¶ 11 When a trial court erroneously denies a Batson challenge, the
remedy is to reverse the conviction and remand for a new trial. See
Flowers v. Mississippi, 588 U.S. ___, ___, 139 S. Ct. 2228, 2251
(2019); People v. Ojeda, 2019 COA 137M, ¶ 35 (cert. granted Aug.
17, 2020).
II. Background
A. Madrid’s Batson Challenge at Trial
¶ 12 Before jury selection, prospective jurors filled out
questionnaires to give the parties basic information about
themselves. Prospective Juror T indicated on his questionnaire that
he was sixty-eight years old, was married with children, was a
retired customer service specialist, had experience in security,
enjoyed gardening, and watched television.
6
¶ 13 After the district court excused six jurors for cause and one for
undue hardship, it called seven new prospective jurors into the jury
box for questioning, including Prospective Juror T. The court gave
each side approximately five minutes to question the seven new
prospective jurors.
¶ 14 During that limited time, the following colloquy occurred
between the prosecutor and Prospective Juror T:
[Prosecutor]: So, [Prospective Juror 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?
[Prospective Juror T]: No, not yet.
[Prosecutor]: Not yet. Okay.
Any concerns about having to look at –
potentially having to look at autopsy pictures
in the case?
[Prospective Juror T]: No.
[Prosecutor]: No? Okay.
Anything you want to tell us?
[Prospective Juror T]: No.
[Prosecutor]: Do you have a good joke?
[Prospective Juror T]: I’m the joke.
7
This was the entirety of the prosecutor’s questioning of Prospective
Juror T.
¶ 15 Shortly thereafter, the prosecution used its ninth peremptory
strike to excuse Prospective Juror T from the jury. Madrid’s
attorney raised a Batson objection, arguing,
Judge, at this time we’re raising an equal
protection challenge and a Batson challenge in
regards to [Prospective Juror T]. [He] 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.
¶ 16 Without awaiting a ruling from the district court as to whether
Madrid had made a prima facie showing that Prospective Juror T
had been removed from the jury on the basis of race, the prosecutor
responded with her race-neutral reasons for striking him:
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
8
him. Terribly uncomfortable with him where
we have very little information.2
¶ 17 The district court repeated back to the prosecutor the grounds
that she had stated for excusing Prospective Juror T: “[Y]ou’re
saying that you’re excusing him because of the little information
that was provided in the questionnaire and the brief opportunity
you had to question him and then I think you also mentioned
that . . . you think he has an issue with his ability to hear?” The
prosecutor said, “He appears to and I could have just been
mumbling but he appeared to me.” The prosecutor did not offer any
other reasons for the strike.
¶ 18 The court found that the defense had not met its burden to
demonstrate, under the totality of the circumstances, an inference
2 The first reason given, that Prospective Juror T would be replaced
by another African-American juror, cannot be the basis to deny
Madrid’s Batson challenge. As a matter of law, “[t]he striking of a
single potential juror for a discriminatory reason violates the Equal
Protection Clause even where jurors of the same race as the
stricken juror are seated.” People v. Collins, 187 P.3d 1178, 1184
(Colo. App. 2008); see Miller-El v. Dretke, 545 U.S. 231, 249-50
(2005) (The “late-stage decision to accept a black panel member” did
not “neutralize the early-stage decision to challenge a comparable
venireman.”).
9
of purposeful discrimination, and thus it denied Madrid’s Batson
challenge at step one.
¶ 19 The next day, the district court allowed the prosecutor to make
a supplemental record on Madrid’s Batson challenge. The
prosecutor gave no further explanation regarding her decision to
strike Prospective Juror T.
¶ 20 So, after being given two distinct opportunities to explain why
it excused Prospective Juror T, the prosecution offered the following
three reasons: (1) he provided little information on his juror
questionnaire; (2) the prosecution had limited time to question him;
and (3) he may have trouble hearing.
B. Madrid’s First Appeal
¶ 21 On direct appeal, a division of this court determined that the
district court erred by finding that Madrid did not meet his burden
at step one of Batson. Madrid, No. 13CA0298, slip op. at ¶ 20. It
determined that the appropriate remedy was to remand the case for
further proceedings and instructed that, “[b]ecause the [district]
court did not complete the three-step Batson analysis, the court
shall take additional evidence and allow further argument at the
request of either party.” Id. at ¶ 22.
10
C. Batson Hearing on Remand
¶ 22 The district court conducted a hearing on remand. Defense
counsel argued that the prosecution should not be allowed to
introduce any new race-neutral explanations for its use of a
peremptory challenge on Prospective Juror T because it already
made its record during the Batson challenge at trial. The district
court rejected defense counsel’s argument, noting that, even though
it allowed the parties to make a record at trial, it had stopped its
analysis at step one. It also explained that it understood the
remand order as requiring it to accept additional evidence and
argument at the request of either party.
¶ 23 The prosecutor who conducted voir dire testified on remand
that she initially did not remember who Prospective Juror T was but
that over time her memory of him returned. She first said
Prospective Juror T was slow to take his seat, she believed he
sighed, and he appeared displeased to be the next person on the
presumptive jury. She then testified she had a hard time getting
Prospective Juror T to engage with her. He did eventually warm up,
she said, but not to the point that she became comfortable with
him. She continued,
11
I was concerned that there was some reason
why he did not want to have to be here. I had
no idea what that reason might be because we
didn’t really have a lot of information. I didn’t
know if he was worried about something in his
personal life or concerned about being away
from his job for some significant period of time
or if there was something about the nature of
the crime that was not sitting well with him or
what.
¶ 24 The prosecutor acknowledged that she used the term
“nonresponsive” to describe Prospective Juror T during the Batson
challenge at trial but, upon reflection, believed “unengaged is a
better word.” She noted that the lack of information on Prospective
Juror T’s questionnaire supported her opinion that he was not
engaged in the process. And she acknowledged that she expressed
concerns at trial about Prospective Juror T’s hearing, but said his
hearing was “absolutely not” the issue. Instead, she reframed her
concern about his hearing as relating “to the whole I don’t want to
be here, and I’m not engaging with you” issue.
¶ 25 During cross-examination, the prosecutor confirmed that she
spent less than a minute questioning Prospective Juror T, she did
not ask for more time to question him, and she did not ask him
about anything on his questionnaire. The prosecutor acknowledged
12
that Prospective Juror T indicated on his questionnaire that he was
retired, that serving as a juror would not cause him hardship, and
that there was no reason he could not be fair and impartial.
Significantly, the prosecutor conceded that she did not make a
record at trial that Prospective Juror T sighed, was slow to take his
seat, or seemed displeased to be there.
¶ 26 At the end of the hearing, the prosecution articulated its
rationales for striking Prospective Juror T, which it admitted
“expand[ed] upon” the trial record and included (1) his
nonresponsiveness, nonparticipation, disengagement, and failure to
connect with the prosecutor; (2) the lack of information about him;
and (3) that “he did not want to be [t]here.” The court found that
the prosecution had provided facially race-neutral reasons to strike
Prospective Juror T and moved on to step three of the Batson
analysis.
¶ 27 Defense counsel emphasized in her argument that the
prosecutor had articulated “new justifications” beyond those given
at trial for the peremptory strike, including that Prospective Juror T
was nonparticipatory and did not want to be there. The shift in the
prosecutor’s reasons, defense counsel argued, suggested they were
13
pretextual. Defense counsel highlighted facts that tended to
undercut the prosecution’s explanations and compared Prospective
Juror T to other jurors who were arguably similarly situated.
¶ 28 In the end, the district court concluded that Madrid had not
met his burden to prove that the prosecution had removed
Prospective Juror T from the jury because of his race.
III. Analysis
¶ 29 Madrid contends that the district court erred by denying his
Batson challenge. Specifically, he argues that the court erred by
(1) allowing the prosecution on remand to offer new race-neutral
reasons for striking Prospective Juror T; (2) offering its own race-
neutral reason for striking Prospective Juror T; (3) failing to
recognize the prosecutor’s shifting explanations as evidence of
pretext; (4) overlooking other relevant evidence of pretext;
(5) ignoring a trend by the prosecutor’s office of striking minority
jurors; (6) concluding there were no similarly situated jurors whom
the prosecution did not strike; (7) relying on its own history with
one of the prosecutors to support its ruling; and (8) failing to
consider the role implicit bias played in the prosecutor’s decision to
strike Prospective Juror T.
14
¶ 30 We agree with Madrid that the district court erred by allowing
the prosecution on remand to adopt new race-neutral reasons for
striking Prospective Juror T that it had not articulated at trial and
then relying on the newly supplied justifications to deny Madrid’s
Batson challenge. Thus, we reverse and remand for a new trial.
Because of this disposition, we need not consider Madrid’s
remaining contentions.
A. The District Court Erred by Denying the Batson Challenge
¶ 31 The division in Madrid’s first appeal concluded that because
the district court erred at step one, it had not continued to steps
two and three of the Batson analysis. The Batson proceedings at
trial, however, were not so tidy.
¶ 32 Defense counsel raised a Batson objection when the
prosecutor used a peremptory challenge on Prospective Juror T and
explained the reasons why the strike was racially motivated. But
the district court did not determine, based on those reasons,
whether Madrid had made a prima facie showing. Instead, the
prosecutor immediately stated her race-neutral reasons for
excusing Prospective Juror T, which is the second step of Batson.
The district court then volunteered its own view of Prospective Juror
15
T, which acknowledged the prosecutor’s stated reason that
Prospective Juror T might have a hearing problem, but included
novel concerns not raised by either party:
I also note that my read of [Prospective Juror
T] when I first called his name was that he
didn’t seem like he wanted to be here. He is
soft-spoken. I don’t know whether that means
he has a hearing problem or not. He may.
But he does mumble, he is soft spoken, and
he’s hard to understand. And as I said . . . it
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.
(Emphasis added.) Thereafter, the court concluded that Madrid had
failed to meet his step-one burden.
¶ 33 The following day, the district court allowed the prosecutor to
make an additional record on the Batson challenge. Instead of
further explaining her decision to strike Prospective Juror T,
however, the prosecutor explained her earlier decision to strike
another African-American prospective juror. When defense counsel
next mentioned that the district court had “made an observation
that [Prospective Juror T] appeared he didn’t want to be here,” with
which defense counsel disagreed, the court explained,
16
Initially. I said initially when I called his
name, his face indicated to me at least that he
didn’t seem happy that I had called his name.
Now, he wasn’t the only one. There were a few
other people, a couple of other people that had
that reaction. But his expression or reactions
to that in my mind — I remember him sort of
slowly walking to the front of the courtroom,
sort of dragging his feet, and he sort of — and
just seeming like he was unhappy that he’d
been called.
(Emphasis added.)
¶ 34 Then, at the Batson hearing on remand, the district court
allowed the prosecution to present evidence and argument in
support of race-neutral reasons the prosecutor did not articulate at
trial — namely, that Prospective Juror T was disengaged and did
not want to be there.
¶ 35 As an initial matter, it is improper for a trial court to offer its
own race-neutral reason for the prosecution’s use of a peremptory
strike. Valdez, 966 P.2d at 592 n.11 (“The trial court in this case
sua sponte offered its own plausible reasons behind the peremptory
strikes at issue. This was improper.”); Ojeda, ¶ 13 (same). As the
United States Supreme Court has explained,
Batson provides an opportunity to the
prosecutor to give the reason for striking the
juror, and it requires the judge to assess the
17
plausibility of that reason in light of all
evidence with a bearing on it . . . . 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.
Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 251-52 (2005)
(emphasis added); see Ojeda, ¶ 63 (Harris, J., specially concurring)
(It is an error for the trial court to volunteer its own justification
because, “under Batson, the question is not an objective one —
could a race-neutral reason be divined from the record? — but a
subjective one — did the prosecutor strike the juror based on
race?”).
¶ 36 We recognize that Batson challenges arise in real time in the
heat of trial, and that the lines between each step of the Batson
analysis often become blurred. Indeed, it is not atypical, as
occurred here, for the prosecution to offer its race-neutral reasons
for excusing a juror before the court rules on whether the defense
has met its step-one burden. Even so, a trial court must resist the
urge to supply its own reasons justifying the use of a peremptory
18
strike and instead rely only on the reasons and arguments
articulated by the prosecution and defense.
¶ 37 But 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 because “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) (citing
Miller-El II, 545 U.S. at 246-52).
¶ 38 In Miller-El II, the prosecution originally defended its use of a
peremptory challenge against a Black juror based on the juror’s
views about the death penalty and rehabilitation. 545 U.S. at 243.
But after defense counsel showed that this reason was based on a
misdescription of the juror’s testimony, the prosecutor stated a
different reason for the strike. Id. at 237, 245-46. The Supreme
Court noted the “pretextual timing” of the prosecutor’s second
reason and said it “would be difficult to credit the State’s new
explanation, which reeks of afterthought.” Id. at 246. The Court
explained,
19
It is true that peremptories are often the
subjects of instinct, Batson v. Kentucky, supra,
at 106, 106 S. Ct. 1712 (Marshall, J.,
concurring), and it can sometimes be hard to
say what the reason is. But 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; see also Taylor, 636 F.3d at 906 (concluding that the
trial court clearly erred by considering new reasons for
prosecution’s strike at remand hearing); Holloway v. Horn, 355 F.3d
707, 725 (3d Cir. 2004) (rejecting prosecution’s “attempt to recast
the prosecutor’s stated reasons” because “where a prosecutor
makes his explanation for a strike a matter of record, our review is
focused solely upon the reasons given”); Turner v. Marshall, 121
F.3d 1248, 1253 (9th Cir. 1997) (giving no weight to reasons offered
by the prosecution after Batson hearing because they were not part
of the prosecutor’s explanation at the hearing), overruled on other
grounds by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en
banc).
¶ 39 At trial, the prosecutor provided her race-neutral reasons for
striking Prospective Juror T, which the district court confirmed
were that (1) he provided little information on his juror
20
questionnaire; (2) the prosecution had limited time to question him;
and (3) he may have trouble hearing. Those reasons did not include
a perception that Prospective Juror T did not want to be there or
that he sighed, walked slowly, or dragged his feet when called.
Such observations may have been accurate, but they were not the
reasons the prosecutor stated for excusing him.
¶ 40 On remand, the prosecution admittedly “expand[ed] upon” its
prior justifications and adopted new race-neutral reasons, which
the court summarized as (1) Prospective Juror T’s
nonresponsiveness, nonparticipation, disengagement, and failure to
connect with the prosecutor; (2) the lack of information about him,
which the district court of its own accord explained “forces the
[p]rosecution to rely on demeanor and specifically to focus on the
prospective juror’s inability to engage or unwillingness to engage or
to participate or to connect with [the prosecutor]”; and (3) that “he
did not want to be [t]here.”
¶ 41 In the end, the district court relied on the new demeanor-
based justifications to deny Madrid’s Batson challenge. Although
the prosecution articulated what it characterized as three distinct
race-neutral reasons for striking Prospective Juror T, the court
21
found the reasons to be “interrelated” and understood them
collectively to mean that the prosecution “felt that [Prospective
Juror T] did not want to be here and did not want to be on the jury
in the trial of this particular case.”3 The court found this race-
neutral justification “very reasonable and probable,” explaining that
“[i]t is not surprising that the People wanted to strike someone who
appeared like he did not want to be on the jury and who . . . would
not connect with [the prosecutor], engage with her, or be responsive
to her.”
¶ 42 It is true that the remand order from the prior appeal
instructed the district court to “take additional evidence and allow
further argument at the request of either party” and to make further
3 Of the ten reasons that the court articulated in support of its
ruling, seven included reference to Prospective Juror T not wanting
to be there. The only reasons the court articulated that did not
relate to this demeanor-based justification were that (1) the trial
prosecutor’s reaction to the Batson challenge was appropriate and
the court had never sustained a Batson challenge against the
prosecutor conducting the remand hearing; (2) the court did not
find persuasive defense counsel’s attempt to establish a pattern of
discrimination by the Arapahoe County District Attorney’s Office;
and (3) the court likely would not have granted the prosecution
additional time to question Prospective Juror T had more time been
requested at trial. These reasons do not relate to the prosecution’s
articulated race-neutral reasons for striking Prospective Juror T.
22
findings on Madrid’s Batson claim. It is also true that we review the
district court’s final determination as to the existence of racial
discrimination for clear error. Rodriguez, ¶ 13. But where the
prosecution has already articulated its race-neutral reasons for
excusing a potential juror during Batson proceedings at trial,
offering new reasons on remand “raises the specter of pretext,”
Taylor, 636 F.3d at 906, and the district court’s acceptance of and
reliance on the new reasons to deny the Batson challenge amounts
to clear error. See Miller-El II, 545 U.S. at 252; Taylor, 636 F.3d at
905.
¶ 43 Because we find it impossible to parse the district court’s
ruling — to separate its reliance on the justifications the
prosecution articulated at trial from its reliance on the
impermissible post-remand justifications — we must reverse the
judgment of conviction and remand for a new trial.4 See Taylor,
636 F.3d at 906.
4Concluding that the district court erred by denying the Batson
challenge on this basis is not the same as concluding that the
prosecutor’s use of a peremptory challenge on Prospective Juror T
was motivated by racial animus. See People v. Ojeda, 2019 COA
137M, ¶¶ 72-77 (Harris, J., specially concurring) (cert. granted Aug.
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B. Remaining Contentions
¶ 44 Madrid also contends that the district court erred by
overlooking other relevant evidence of pretext; ignoring a trend by
the prosecutor’s office of striking minority jurors; concluding there
were no similarly situated jurors whom the prosecution did not
strike; relying on its own history with the prosecutor conducting the
remand hearing to support its ruling; and failing to consider the
role implicit bias played in the prosecutor’s decision to strike
Prospective Juror T. Because we remand for a new trial, we need
not address these contentions. Flowers, 588 U.S. at ___, 139 S. Ct.
at 2251; Ojeda, ¶ 35.
IV. Conclusion
¶ 45 The judgment of conviction is reversed, and the case is
remanded to the district court for a new trial.
JUDGE ROMÁN and JUDGE WELLING concur.
17, 2020). Rather than showing invidious bigotry, a lawyer’s
reliance on stereotypes to select sympathetic jurors more often
reflects a professional effort to fulfill the lawyer’s obligation to help
his or her client. Id. at ¶ 73. “Nevertheless, the outcome in terms
of jury selection is the same as it would be were the motive less
benign.” Id. at ¶ 75 (citation omitted).
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