v. Ojeda , 2019 COA 137 ( 2019 )

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
September 5, 2019
2019COA137
No. 15CA1517, People v. Ojeda — Constitutional Law —
Fourteenth Amendment — Equal Protection; Juries —
Peremptory Challenges — Batson Challenges
A division of the court of appeals considers whether a trial
court erred in denying a defendant his Batson v. Kentucky, 476 U.S.
79 (1986), challenge when a prosecutor removed a Hispanic juror
from the prospective jury.
The majority agrees that the trial judge cannot supply its own
reasons to justify a juror’s removal and that reversal is appropriate,
albeit for different reasons. Judge Fox’s opinion discusses various
approaches employed in examining race-based and race-neutral
reasons for a Batson challenge and concludes that if a peremptory
strike was motivated in substantial part by discriminatory intent,
then the defendant has met his burden of showing purposeful
discrimination as articulated in the third Batson step. Judge
Harris’ special concurrence concludes that reversal is required
because the prosecution failed to state a race-neutral reason for the
juror strike, as required by the second Batson step. Accordingly,
the majority reverses the judgment and remands for a new trial.
The dissent concludes that the case should be remanded to
the trial court for it to conduct the three-step Batson analysis and
make the required factual findings as the trial court’s prior Batson
analysis failed to make sufficient factual findings about whether (1)
Ojeda made a prima facie showing that the peremptory strike was
based on race; (2) the prosecutor provided a race-neutral
explanation; and (3) Ojeda established purposeful discrimination.
COLORADO COURT OF APPEALS 2019COA137
Court of Appeals No. 15CA1517
City and County of Denver District Court No. 13CR4235
Honorable Kenneth M. Laff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ray Ojeda,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE FOX
Harris, J., specially concurs
Hawthorne, J., dissents
Announced September 5, 2019
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Elizabeth Griffin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant Ray Ojeda appeals the judgment of conviction
entered on jury verdicts finding him guilty of various charges. He
contends that the trial court erred in denying his Batson v.
Kentucky, 476 U.S. 79 (1986), challenge when the prosecutor
removed a Hispanic prospective juror from the venire. Based on the
record before us, we agree that the court’s denial of Ojeda’s Batson
challenge was erroneous. Accordingly, we reverse the judgment of
conviction and remand for a new trial. Given this disposition, we
need not address Ojeda’s remaining challenges.
I. Applicable Facts
¶2 In 2015, after a six-day trial, a jury found Ojeda guilty of first
degree murder, second degree kidnapping, and first degree sexual
assault for events that occurred in 1997. Ojeda’s trial team
advanced a mistaken identity defense and strenuously challenged
the prosecution’s reliance on old evidence.
¶3 During jury selection, the prosecutor first attempted to excuse
Juror R.P., a Hispanic male seated in the seventh jury position, for
cause based on (1) “the content of his questionnaire”; (2) “remarks
that he made in open court”; and (3) “his demeanor.” She explained
1
that Juror R.P. expressed a “bias” against the criminal justice
system and “visibly showed hesitation” when asked whether he
could be fair. Defense counsel objected, noting that the prosecutor
was mischaracterizing Juror R.P.’s answers, and highlighted Juror
R.P.’s disclosure that he could be objective. Defense counsel added
that Juror R.P. was one of the few Hispanic males on the venire.
¶4 The court then asked the prosecutor to make a further record
concerning the for-cause challenge to prospective Juror R.P. and
the prosecutor stated,
With regard to what he put on his [juror]
questionnaire, I found it to be significant . . .
he has devoted his career to . . . quality of
healthcare for individuals. And that, in my
mind, very much dovetailed with [being] . . . a
man of very great conviction . . . . He gave our
system the lowest rating of anyone who has
been asked to offer a score. I believe his score
was 4. And when I asked him about the
linkage between his low confidence in the
system and whether or not he could be fair, he
visibly showed hesitation. . . . [And,] when you
look at that in-court behavior against what is
clearly his commitment to his job, in terms of
serving people of color and what he talked
about in terms of the defendant being a person
of color — he is himself a person of color — I
thought that the totality of the record indicated
that he has a distinctive leaning, that he
2
himself said he would have trouble in listening
to the evidence.
¶5 Defense counsel immediately responded that the prosecutor
had “mischaracterized” Juror R.P.’s answers and noted that Juror
R.P. had expressly stated that he could set aside his experiences
and “be objective” and that he
clearly indicated he would follow the rules
given to him by the Court. He’s also one of the
few Hispanic men on this entire jury panel,
and under Batson, I don’t know that it’s
appropriate to exclude him because he’s
Hispanic and may have something in common
with the defendant in his heritage.
¶6 The court denied the prosecutor’s for-cause challenge, finding
that nothing in Juror R.P.’s feelings or life experiences indicated he
would not follow the court’s rules or reach a verdict based on the
evidence. The court also noted that Juror R.P. is “certainly entitled
to believe that people of color are not well-served in our criminal
justice or medical system. There’s nothing in his answers that
those feelings of his life experience will affect his judgment in the
case, that he won’t follow the rules set forth by the Court. There’s a
completely inadequate record to challenge him in this case.” The
prosecutor then requested that the court repeat its ruling “with
3
regard to the Batson issue,” and the court clarified that it “didn’t
really reach [that] issue.” Instead, the court expressed that it
“didn’t think it was a founded challenge, regardless of [Juror R.P.’s]
personal ethnicity. I just thought that he had attitudes that he was
certainly entitled to have, and that there was not anywhere near a
sufficient record that they would affect his ability to be a fair juror.”
The prosecutor did not question Juror R.P. again before later using
a peremptory challenge to excuse Juror R.P.
¶7 The prosecutor later used her fifth peremptory challenge to
excuse Juror R.P. Defense counsel asserted a Batson challenge
because he was “obviously concerned about excusing Hispanic
males from the jury.” In response, the prosecutor first incorporated
her previous record on Juror R.P. (from the earlier for-cause
challenge), then offered the following explanation:
To be utterly disclosing, we are pursuing a
strategy of trying to select jurors who are
establishmentarian, let’s say, who are in favor
of the system that we have. And that’s one of
the reasons I used a rate-the-system type of
device during my voir dire.
[Juror R.P.] gave our system the lowest rating
possible — rather, the lowest rating that
4
anyone had given, which was a number 4,
which is a matter of some concern.
[T]he jury is going to hear that there were
errors on the part of the police department in
terms of not having been able to locate the
rape kit in this case within the property
bureau for a period of years. I anticipate some
very vigorous cross-examination of . . . a
forensic serologist, in particular, and I
anticipate that the defense is going to be very
strongly attacking the Denver Police
Department, the Denver Police Crime Lab, and
that it will really build on the statements that
have already been made during jury selection
that critique the system as a whole as a way to
build reasonable doubt in to secure a not
guilty verdict.
And so what [Juror R.P.’s] concerns were
about the system — and he said, I have a bias
against the system. And so the concerns that
we have do not relate in any way to the color of
the skin or his national origin, but rather to
his stated reservations in that regard when we
know what the evidence will be and when we
are now getting some pretty strong clues about
what the defense will be.
¶8 The prosecutor continued by noting the racial composition of
the jury box and of the group of prospective jurors recently struck
by the defense. She then added:
Your Honor, if I could wrap up with two other
thoughts that are very strongly informing our
desire to exercise a strike as to [Juror R.P.].
He’s a polished, educated, and, I believe,
5
persuasive individual. And because of his
presentation in that regard, the concern that
we have is that the critique of the criminal
justice system that he has talked about, he
could be very, very strongly persuasive in the
jury room. That’s race neutral. We see him as
a person who could very much persuade
others of the reservations that he has. And
given what we anticipate by way of the
evidence, that is the basis for attempting to
eliminate him.
[And] I anticipate the defense is going to make
a very strong charge against the validity and
reliability of the DNA results. . . . And the fact
that the defendant is a Latino male, if the jury
is persuaded that there is not a DNA
connection between . . . the forensic evidence
in this case and this defendant, it seems to me
that the comments that [Juror R.P.] made
about having concerns about racial profiling
will really come into play in the sense that I
think that he may then steer the jury towards
a race-based reason why Mr. Ojeda, you know,
was charged in the case, and that is because
[Juror R.P.] had talked about racial profiling in
conjunction with his other considerations.
Since I think that’s where the defense is going
— you know, we have to forecast at this stage
of the game, and those are all of the race-
neutral reasons why we believe that a strike is
constitutional and not racially motivated as to
[Juror R.P.].
¶9 Defense counsel responded that “[w]ith respect to [Juror R.P.],
I think [the prosecutor] made my argument for me. She’s
concerned about a race-based argument being made by [Juror R.P.]
6
because he’s Hispanic.” In explaining why the peremptory
challenge was based on race-neutral factors, the court stated:
The Court will deny the challenge for cause as
to [Juror R.P.], but there are abundant
race-neutral reasons for a peremptory to be
exercised. First of all, he too is a victim of a
sex assault, as is his wife, and he struck the
Court as remarkably unconcerned about those
events in his own lifetime. His first thought
when there was a discussion of the time [it
has] taken to bring this case was that the
victim had delayed disclosure. He does have
an anti-law enforcement bend, so the Court
finds there’s a sufficient racially neutral basis
for the challenge.
¶ 10 Immediately following the court’s ruling, the prosecutor
supplemented her record by noting that her notes reflected that
when Juror R.P. heard the age of the case, he thought something
might have gone wrong, which also caused her “particular concern.”
II. Law and Review Standard
¶ 11 The Equal Protection Clause of the Fourteenth Amendment
forbids a challenge to a potential juror based solely on race.
Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M,
¶ 10 n.4. When a party raises a Batson challenge, the trial court
engages in a three-step analysis to assess the claim of racial
discrimination. Wilson, ¶ 10. First, the opponent of the peremptory
7
strike must allege a prima facie case showing that the striking party
struck the prospective juror on the basis of race. Id. Second, the
burden shifts to the striking party to provide a race-neutral
explanation for excusing the prospective juror. Id. The opponent is
then given the opportunity to rebut the striking party’s explanation.
Id.
¶ 12 At step three, the trial court must assess the striking party’s
actual subjective intent and the plausibility of its nondiscriminatory
explanations to determine whether the opponent has sufficiently
established purposeful discrimination. Id.; see also Miller-El v.
Dretke, 545 U.S. 231, 252 (2005). If the opponent’s “stated reason
does not hold up, its pretextual significance does not fade because a
trial judge . . . can imagine a reason that might not have been
shown up as false.” Miller-El, 545 U.S. at 252.
¶ 13 Significantly, it is improper for a trial court to “sua sponte
offer[] its own plausible reasons behind the peremptory strike[] at
issue[.]” Valdez v. People, 966 P.2d 587, 592 n.11 (Colo. 1998); see
also Miller-El, 545 U.S. at 252 (“The Court of Appeals’s and the
dissent’s substitution of a reason for eliminating [the juror] does
8
nothing to satisfy the prosecutors’ burden of stating a racially
neutral explanation for their own actions.”); People v. Rodriguez,
2015 CO 55, ¶ 15 n.5 (concluding that the trial court never
evaluated the validity of the prosecutor’s justification because it
based its ruling on a different race-neutral explanation than the one
offered by the prosecution).
¶ 14 We review steps one and two of a Batson challenge de novo.
Rodriguez, ¶ 13. But, the trial court’s conclusion at step three is
“an issue of fact to which an appellate court should defer, reviewing
only for clear error.” Id. We will “set aside a trial court’s factual
findings only when they are so clearly erroneous as to find no
support in the record.” People v. Beauvais, 2017 CO 34, ¶ 22. If
the record shows that the trial court failed to adequately conduct a
Batson analysis, the appropriate procedure is to remand the case
for more detailed findings by the trial court. Rodriguez, ¶ 21.
III. Analysis
¶ 15 In addressing the Batson challenge at issue, the trial court did
not, as it should have, explicitly evaluate the prosecutor’s proffered
reasons for striking Juror R.P. See Beauvais, ¶ 9; see also Batson,
9
476 U.S. at 98 (requiring the prosecutor to “articulate a neutral
explanation related to the particular case to be tried”); Purkett v.
Elem, 514 U.S. 765, 770 (1995) (Stevens, J., dissenting) (recognizing
that the prosecutor’s explanation must relate to the case at issue).
Instead, the court sua sponte offered two race-neutral reasons to
justify striking Juror R.P.: (1) that Juror R.P. and his wife were not
only sexual assault victims themselves, but that Juror R.P. seemed
“remarkably unconcerned” about those life experiences; and (2) that
Juror R.P. surmised the age of the case might be attributed to the
victim’s delayed disclosure. Although the prosecutor later agreed
with the second reason the court offered, the prosecutor did not
initially offer either reason as a basis for her peremptory strike.
¶ 16 Before more closely examining the prosecutor’s reasons for the
strike, it is useful to look to those jurisdictions that have
encountered race-based and race-neutral reasons supporting a
Batson challenge.
A. Multiple Justifications for a Peremptory Strike
¶ 17 Jurisdictions examining race-based and race-neutral reasons
supporting a Batson challenge have generally considered three
10
approaches to the issue: (1) the per se approach; (2) a mixed-motive
approach; and (3) the substantial motivating factor approach.
Neither the United States Supreme Court nor Colorado’s Supreme
Court has adopted a governing approach. See Snyder v. Louisiana,
552 U.S. 472, 485 (2008) (not deciding whether mixed-motive
analysis applies in a Batson context); Rodriguez, ¶ 15 n.5 (while the
trial court had based its ruling on a different race-neutral
explanation than the one the prosecution offered, the Colorado
Supreme Court did not elaborate on how it would evaluate
peremptory challenges where multiple reasons — race-based and
race-neutral — are offered). I provide a brief overview of the three
approaches.
¶ 18 The per se approach provides that a “a racially discriminatory
peremptory challenge in violation of Batson cannot be saved
because the proponent of the strike puts forth a non-discriminatory
reason.” State v. Shuler, 545 S.E.2d 805, 811 (S.C. 2001); see also
State v. King, 572 N.W.2d 530, 535 (Wis. Ct. App. 1997) (“[W]here
the challenged party admits reliance on a prohibited discriminatory
characteristic . . . a response that other factors were also used is
11
[in]sufficient rebuttal under the second prong of Batson.”). Thus,
under the per se approach, an improper juror challenge cannot be
saved.
¶ 19 Under the mixed-motive approach, “[o]nce the claimant has
proven improper motivation, dual motivation analysis is available to
the person accused of discrimination to [challenge the issue] by
showing that the same action would have been taken in the absence
of the improper motivation that the claimant has proven.” Howard
v. Senkowski, 986 F.2d 24, 27 (2d Cir. 1993); see also Gattis v.
Snyder, 278 F.3d 222, 232-35 (3d Cir. 2002); Wallace v. Morrison,
87 F.3d 1271, 1274-75 (11th Cir. 1996); United States v. Darden, 70
F.3d 1507, 1531-32 (8th Cir. 1995); Jones v. Plaster, 57 F.3d 417,
420-22 (4th Cir. 1995). Stated differently,
after the defendant makes a prima facie
showing of discrimination, the state may raise
the affirmative defense that the strike would
have been exercised on the basis of the
[]neutral reasons and in the absence of the
discriminatory motive. If the state makes such
a showing, the peremptory challenge survives
constitutional scrutiny.
12
Gattis, 278 F.3d at 233. Thus, a challenge under the mixed-motive
approach may be saved if the state’s race-neutral reason is
persuasive.
¶ 20 Under the substantial motivating factor approach, the proper
inquiry is “whether the prosecutor was ‘motivated in substantial
part by discriminatory intent.’” Cook v. LaMarque, 593 F.3d 810,
814-15 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 1212). “To
determine whether race was a substantial motivating factor — that
is, whether the defendant has shown ‘purposeful discrimination’ at
Batson’s third step — the trier of fact must evaluate ‘the
persuasiveness of the justification[s]’ offered by the prosecutor.” Id.
Unlike the mixed-motive approach, this approach does not allow the
prosecutor to argue that he would have challenged the juror even
absent the discriminatory basis. See Kesser v. Cambra, 465 F.3d
351, 376 (9th Cir. 2006) (Berzon, J., concurring).
¶ 21 The per se approach is the most faithful to the principles
outlined in Batson, but the mixed-motive approach is, arguably,
consistent with United States Supreme Court equal protection
precedent in non-Batson contexts. See, e.g., Mt. Healthy City Sch.
13
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (noting that the
district court should have determined whether the board of
education could show by a preponderance of evidence that it would
have reached the same decision not to rehire a teacher who engaged
in constitutionally protected speech in the absence of the teacher’s
protected conduct); see also Village of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 271 (1977) (plaintiffs failed to carry
their burden of showing that a discriminatory purpose was a
substantial motivating factor in an agency’s decision to deny a
rezoning application). But see Lisa M. Cox, Note, The “Tainted
Decision-Making Approach”: A Solution for the Mixed Messages
Batson Gets from Employment Discrimination, 56 Case W. Res. L.
Rev. 769, 782-89 (2006) (describing the civil law origin of
mixed-motive analysis and arguing it should not be extended in the
Batson context). The United States Supreme Court does not appear
poised to adopt the per se standard in Batson cases. The Supreme
Court mentioned — without adopting — the substantial motivation
standard in Snyder in 2008, 552 U.S. at 485, and more recently, in
14
Tharpe v. Sellers, 583 U.S. __, 138 S. Ct. 545 (2018), it indicated
skepticism about a per se rule.
¶ 22 In Tharpe, a black defendant moved to reopen his federal
habeas corpus proceeding regarding his claim that the Georgia jury
that convicted him of murdering his sister-in-law included a white
juror who was biased against him and had voted for the death
penalty because he was black. Id. at __, 138 S. Ct. at 546-47. In
returning the matter to the court of appeals, the majority thought it
debatable whether the defendant had shown prejudice even after
producing an affidavit from the white juror that expressed racist
opinions about blacks. Id. at __, 138 S. Ct. at 546-49. The Court
did not hold that the affidavit alone (demonstrating racial animus)
required a per se finding that supported defendant’s petition, much
less an automatic reversal of his death sentence. Id. The white
juror later recanted the contents of his first affidavit. Id. It is
unclear how much this recantation factored into the Court’s
observation regarding the defendant’s showing of prejudice. But, it
appears from Tharpe that a judgment of conviction need not be
automatically, and always, set aside whenever discriminatory
15
animus is shown even though the evidence also shows that such
animus may not have been the determinative factor ultimately
leading to the conviction.
B. Discussion and Application of the “Substantial Motivating
Factor” Approach
¶ 23 Recognizing the inherent risk in predicting what the Supreme
Court may do, in my view, the substantial motivating factor
standard offers the most flexibility and is the one Colorado should
adopt. Of course, most of the above-referenced cases pre-date the
Supreme Court’s 2008 Snyder decision and the 2018 Tharpe
decision. Thus, the reasoning of the pre-Snyder and pre-Tharpe
opinions is not as helpful as is the Idaho Court of Appeal’s 2014
decision in State v. Ornelas, 330 P.3d 1085 (Idaho Ct. App. 2014),
which I find persuasive.
¶ 24 Ornelas read Snyder as setting “a guideline that a peremptory
strike violates the Equal Protection Clause when the strike is
‘motivated in substantial part by discriminatory intent.’” Id. at
1094 (quoting Synder, 552 U.S. at 485). In Ornelas, the
government did not challenge that Ornelas made a prima facie
showing under Batson. Id. The court thus proceeded to determine
16
if the prosecutor supplied a gender-neutral reason to strike Juror
24, a female. Id. The prosecutor, admitting he wanted a woman on
the panel, also offered that he struck Juror 24 because she was
young, lacked life experience, and had a child near the victim’s age.
Id. at 1091. The appellate court accepted the last three reasons as
gender-neutral. Id. Adopting the Ninth Circuit’s approach in Cook,
593 F.3d at 814-15, the Ornelas court inquired whether the strike
was “motivated in substantial part by discriminatory intent.”
Ornelas, 330 P.3d at 1093 (quoting Cook, 593 F.3d at 814-15). The
Ornelas court noted that Juror 24’s gender could have substantially
motivated the decision to strike her, but ultimately opted to remand
for the trial court to supplement the record. Id. at 1097.
¶ 25 Ornelas held that when analyzing a Batson challenge where
permissible and impermissible reasons are provided, the court
should determine if the peremptory strike was motivated in
substantial part by discriminatory intent. See id. at 1094. If the
peremptory strike was motivated in substantial part by
discriminatory intent, the challenger meets his burden of showing
17
purposeful discrimination, as articulated in the third Batson step.
Id.
¶ 26 Here, although the prosecutor claimed concern with Juror
R.P.’s views about the criminal justice system, Juror R.P.’s views
were inextricably linked to being a Hispanic male who had
experienced racial profiling, as he disclosed in his questionnaire.
See State v. McRae, 494 N.W.2d 252, 257 (Minn. 1993) (concluding
that the prosecutor failed to articulate a race-neutral basis
supported by the record for excluding a black prospective juror who
expressed doubt about a system that disproportionately affects
black men); People v. Mallory, 993 N.Y.S.2d 609, 612 (N.Y. App. Div.
2014) (holding that the People failed to offer a race-neutral reason
for a peremptory strike where the prosecutor explicitly referenced
race in explaining his reasons for challenging one of the prospective
jurors and where the prospective juror responded by stating “that
‘[s]ometimes’ police officers unfairly target minorities”). But cf.
Ananaba v. State, 755 S.E.2d 225, 227 (Ga. Ct. App. 2014)
(concluding that the use of peremptory challenges on three African-
American venire members because of their prior bad experiences
18
with law enforcement officers was a race-neutral reason). Where
the clear focus of the prosecutor in striking Juror R.P. was Juror
R.P.’s perception that the criminal justice system disproportionately
affects people of color and those with mental disabilities, it is
impossible not to conclude that the strike at issue was substantially
motivated by Juror R.P.’s race. See Batson, 476 U.S. at 106
(Marshall, J., concurring) (noting that “‘seat-of-the-pants instincts’
may often be just another term for racial prejudice”).
¶ 27 The trial court aptly recognized that Juror R.P. was “entitled to
believe that people of color are not well-served in our criminal
justice” system, noting that his answers did nothing to indicate that
“those feelings of his life experience will affect his judgments in the
case, that he won’t follow the rules . . . There’s no indication he
couldn’t follow my instructions and reach a verdict based on the
evidence.” The trial court heard nothing from Juror R.P. to suggest
that having experienced racial profiling himself would affect his
ability to decide a case with no allegations of profiling based on the
evidence presented. The prosecution’s concern that R.P. and
defendant are “person[s] of color” would somehow lead R.P. to have
19
“trouble listening to the evidence” is precisely what Batson warned
against:
[T]he prosecutor may not rebut the defendant’s
prima facie case of discrimination by stating
merely that he challenged jurors of defendant’s
race on the assumption — or his intuitive
judgment — that they would be partial to the
defendant because of their shared race.
Batson, 476 U.S. at 97. And, as discussed below, the reasons the
prosecutor articulated on the record are not the sort of race-neutral
explanations the Supreme Court contemplated in Batson and later
cases.
¶ 28 Attributing “a distinctive leaning” to Juror R.P., as this
prosecutor did, because of his life experiences perpetuates the race-
based stereotypes Batson eschewed. To the extent the prosecutor
suggested that Juror R.P. “would have trouble in listening to the
evidence,” the record soundly refutes that claim. See People v.
Collins, 187 P.3d 1178, 1183 (Colo. App. 2008) (reversing where
“[a]t least three of the race-neutral reasons articulated by the
prosecutor are affirmatively refuted by the record[]”). Juror R.P.
repeatedly reiterated that he would listen to all the evidence and
follow the court’s instructions. The trial court recognized as much
20
in denying the prosecutor’s for-cause challenge. See Foster v.
Chatman, 578 U.S. __, __, 136 S. Ct. 1737, 1749 (2016) (The
Supreme Court’s “independent examination of the record” revealed
that “much of the reasoning provided by [the prosecution had] no
grounding in fact.”).
¶ 29 The prosecutor adopted the second reason the trial court
supplied in allowing Juror R.P. to be struck related to his response
to the delay issue.1 Although the court and the prosecution
remembered only one reason Juror R.P. offered in speculating why
———————————————————————
1 The trial court’s first supplied reason to strike Juror R.P. — his
lack of concern over his prior experience with sexual assault — is
irrelevant, see People v. Rodriguez, 2015 CO 55, ¶ 15 n.5, where the
prosecutor did not adopt it. As to Juror R.P.’s experience with
sexual assault, the prosecutor was well aware of that experience
from R.P.’s juror questionnaire and did not rely upon it in seeking
to excuse him. Moreover, Juror K.P. was deemed to be a suitable
juror even though his questionnaire disclosed that his daughter
was the victim of “incest, sexual assault, or inappropriate sexual
behavior.” The prosecutor never explained why Juror K.P.’s
background was deemed acceptable but Juror R.P.’s would not be.
See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (If the proffered
reason for striking a black panelist applies equally to “an otherwise-
similar nonblack who is permitted to serve, that is evidence tending
to prove purposeful discrimination.”). Notably, the record discloses
that both parties had earlier accepted Juror R.P.’s and Juror K.P.’s
similar assurances that their prior experiences with sexual assault
would not affect their judgment in this case.
21
a 1997 crime would not be tried until 2015, the record discloses
that Juror R.P. offered several logical reasons — and never
indicated he would not accept other explanations — for the delayed
proceedings presented during trial. The operative questioning is as
follows:
[PROSECUTOR to R.P.]: Did you hear the year
in which this case took place?
[JUROR R.P.]: I believe it was ’96.
[PROSECUTOR]: And when you heard that it
was a case from some years ago, did you have
any response in your gut to think oh, a
number of years have passed, and here we are
prosecuting the case?
[JUROR R.P.]: Yes.
[PROSECUTOR]: Did you have any feelings
that were associated with that?
[JUROR R.P.]: Yeah. Why so long, and what
has happened? Maybe the person didn’t
disclose for some reasons, the victim? Or
maybe there was a mistrial before, or you
know, something went awfully wrong for so
many years to have gone by.
[PROSECUTOR]: Is there anybody else here —
I saw some heads nodding. Is there anybody
else here who when the judge said that it was
a case from 1997, that that pinged somewhere
in your mind, that it at least registered? Pretty
much everyone. Is there anyone here . . .
22
[who] said you shouldn’t be prosecuting
somebody from ’97? How can that person
defend themselves from a case that’s so old?
Several other potential jurors expressed concerns about the age of
the case, but those jurors were not struck.
¶ 30 That the prosecutor later tried to characterize her objections to
Juror R.P.’s service as objections to his anti-establishment bent is
of no moment and smacks of pretext. See, e.g., United States v.
Bishop, 959 F.2d 820, 826 (9th Cir. 1992) (concluding that the
reason offered — that the juror lived in a high crime area plagued
by uneasy police relations — was really a proxy for race), overruled
on other grounds, United States v. Nevils, 598 F.3d 1158, 1167 (9th
Cir. 2010); Rector v. State, 444 S.E.2d 862, 864-65 (Ga. Ct. App.
1994) (the prosecutor suggested that he struck a black,
gold-toothed prospective juror because the gold tooth suggested to
him that the juror was thumbing her nose at society; the court
rejected the excuse, noting that the gold tooth had “nothing to do
with [her] ability to perform as a juror”); McCormick v. State, 803
N.E.2d 1108, 1111 (Ind. 2004) (concluding that the reason provided
— that the juror would find it difficult “passing judgment on a
23
member of one[’]s own in the community” — was not facially
race-neutral).
¶ 31 The court briefly mentioned Juror R.P.’s alleged “anti-law
enforcement bend.” While the record is unclear regarding whether
the court found that reason, standing alone, sufficient, remanding
this case to the trial court to make additional findings of fact and
conclusions of law, see Rodriguez, ¶ 19, is not useful here where
the record discloses that the non-neutral reasons the prosecutor
offered lacked record support (or were contradicted by the record)
and where the trial court itself earlier acknowledged that Juror R.P.
was “entitled to believe people of color are not well-served in our
criminal or medical system” and that nothing in his answers or his
life experience indicated that it would “affect his judgement in this
case.”
¶ 32 As to the other race-neutral reasons the prosecutor provided
for striking Juror R.P., other non-Hispanic prospective jurors
expressed views similar to the views of, or had similar attributes as,
Juror R.P., see Miller-El, 545 U.S. at 241:
24
• First, regarding the prosecutor’s objection that Juror R.P. was
“polished, educated,” and persuasive, nine of the jurors who
served had at least a bachelor’s degree and a few had graduate
educations. With regards to his specific education, Juror C.B.,
like Juror R.P., revealed that she worked in the health field as
a nurse. See Reynoso v. Hall, 395 F. App’x 344, 349 (9th Cir.
2010) (reversing where the record clearly refuted prosecutor’s
proffered reason of lack of education for striking a prospective
juror where five white jurors had similar education levels).
• Second, the prosecutor’s asserted concern with Juror R.P.
having strong opinions is curious because she asked other
prospective jurors if they would be strong enough to assert
themselves, revealing a concern that those jurors might be
weak and unduly influenced. See Reed v. Quarterman, 555
F.3d 364, 379-80 (5th Cir. 2009) (prosecution’s surmises
about stricken juror were found to be pretextual where other
white jurors had also expressed nearly identical concerns but
were not struck or questioned further); Hardcastle v. Horn,
521 F. Supp. 2d 388, 405-08 (E.D. Pa. 2007) (rejecting
25
proffered race-neutral reasons for striking nonwhite potential
jurors — young, single, unemployed, and unmarried — where
three other Caucasian women fit a similar description but
were not struck); Killebrew v. State, 925 N.E.2d 399, 402-03
(Ind. Ct. App. 2010) (refusing to credit the prosecutor’s excuse
that the juror struck was too “emphatic” and finding that there
was no meaningful distinction between how the struck juror
and other white panelists described the applicable burden).
Juror R.P. occupied the seventh seat of the initial jury pool.
Of the first thirteen jurors seated — before any were struck — three
were Hispanic (occupying seats four, seven, and nine), and the
record reflects that eight Hispanic surnamed people were excused
from jury service before the first and only Hispanic was seated.
That one Hispanic juror ultimately served in no way cures a Batson
violation; even one improper strike violates the Equal Protection
Clause. Lancaster v. Adams, 324 F.3d 423, 434 (6th Cir. 2003)
(subsequent selection of an African-American for the jury did not
cure the prosecutor’s Batson violation); Fernandez v. Roe, 286 F.3d
1073, 1079 (9th Cir. 2002) (concluding that the prosecutor
26
disproportionately struck Hispanics from the jury box even though
one Hispanic juror ultimately sat on the jury).
¶ 33 Purposeful discrimination in jury selection harms litigants and
the individual jurors who are wrongfully excluded and diminishes
the public’s confidence in the fairness of judicial proceedings.
Batson, 476 U.S. at 87; see Georgia v. McCollum, 505 U.S. 42, 49
(1992). “The need for public confidence in our judicial process and
the integrity of the criminal justice system is ‘essential for
preserving community peace.’” People v. Cerrone, 854 P.2d 178,
196 (Colo. 1993) (Scott, J., dissenting) (quoting McCollum, 505 U.S.
at 49). It is therefore “of paramount importance that the
community believes we guarantee even-handed entry into our
criminal justice system by way of the jury panel.” Id. (Scott, J.,
dissenting). That is precisely why “[t]he ‘Constitution forbids
striking even a single prospective juror for a discriminatory
purpose.’” Foster, 578 U.S. at __, 136 S. Ct. at 1747 (quoting
Snyder, 552 U.S. at 478); see also Powers v. Ohio, 499 U.S. 400,
411 (1991) (“[R]acial discrimination in the selection of jurors ‘casts
doubt on the integrity of the judicial process’ and places the
27
fairness of a criminal proceeding in doubt.” (quoting Rose v.
Mitchell, 443 U.S. 545, 556 (1979))).
¶ 34 Not only did the trial court improperly supply independent
reasons to strike Juror R.P., which it was not supposed to do,
Valdez, 966 P.2d at 592 n.11 (a trial court may not interject its own
nondiscriminatory reasons, even if supported by the record), but it
also failed to recognize that the record refutes most of the
prosecutor’s proffered excuses. Thus, the record clearly discloses
that the trial court erred in denying the Batson challenge at issue
here.
IV. Conclusion
¶ 35 The judgment of conviction is reversed, and the case is
remanded for a new trial.
JUDGE HARRIS specially concurs.
JUDGE HAWTHORNE dissents.
28
JUDGE HARRIS, specially concurring.
¶ 36 Defendant Ray Ojeda was convicted, on strong evidence, of a
horrific series of crimes. Regardless, he had a “right to be tried by a
jury whose members are selected pursuant to nondiscriminatory
criteria.” Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). Because I
conclude that this right was violated, I agree with Judge Fox that
the judgment must be reversed.
¶ 37 But I write separately because, unlike Judge Fox, I do not
believe that the prosecution satisfied even its minimal burden at
step two of the Batson analysis to state a race-neutral reason for
striking Juror R.P. Like the district court, I can conceive of
race-neutral reasons to strike the juror. But by her own admission,
the prosecutor struck Juror R.P. based on her concern that as a
“polished” “person of color” with both a commitment to “serving
people of color” and a relatively low opinion of the criminal justice
system, he would likely persuade other jurors that the police had
racially profiled Ojeda who, the prosecutor reminded the court, is
also “a person of color.” In my view, a discriminatory intent is
“inherent” in the prosecutor’s explanation, and therefore it does not
29
qualify as race-neutral. Hernandez v. New York, 500 U.S. 352, 360
(1991).
I. Applicable Facts
¶ 38 Ojeda was charged with kidnapping, sexually assaulting, and
shooting a fifteen-year-old girl in 1997. The victim reported the
crime immediately, but she could not identify the perpetrator and
the case went cold. Years later, the police retested evidence from
the victim’s rape kit; DNA from the vaginal swab matched Ojeda.
¶ 39 At the trial in 2015, prospective jurors completed a
questionnaire that asked, among other things, whether they, a
friend, or a relative had been the victim of a sexual assault; whether
they had friends or relatives in law enforcement; and whether they
or a family member had ever had a particularly good or bad
experience with a police officer.
¶ 40 Juror R.P. disclosed that he and his ex-wife had been victims
of sexual misconduct or assault, that he had a friend in law
enforcement, and that he or a family member had been “racially
profil[ed].” Because he answered the first question affirmatively,
Juror R.P., like at least a dozen other jurors, was questioned
30
individually by counsel. He explained that the “inappropriate
sexual behavior” he had encountered, as well as his ex-wife’s
separate experience, occurred in the mid-1980s, before they were
married. Neither defense counsel nor the prosecutor expressed any
concern about Juror R.P.’s answers.
¶ 41 Later, during group voir dire, the prosecutor asked eight of the
prospective jurors to rate the criminal justice system on a scale of
one to ten. Two jurors rated the system a nine or ten, but of the
other six jurors, two rated it a four, three gave it a five or six, and
one rated it a six or seven. Juror R.P. gave the system a score of
four. He acknowledged that he had “a little bit of a bias on the
system itself,” explaining that he had “worked with communities of
color,” and he “[did] know that the criminal justice system is
disproportionately filled with people of color and folks with mental
disabilities.” He admitted that, while he would try not to let his
views affect him as a juror, his feelings about the system might
color the way he “hear[d] and weigh[ed] the evidence in the case.”
¶ 42 The prosecutor also asked Juror R.P. whether he had a
“response in [his] gut” to the delay in bringing the case to trial.
31
Juror R.P. said that the delay raised questions: “Maybe the person
didn’t disclose for some reason, the victim? Or maybe there was a
mistrial before, or you know, something went awfully wrong for so
many years to have gone by.”
¶ 43 The prosecutor challenged Juror R.P. for cause. She said that
her challenge was based on the content of Juror R.P.’s
questionnaire, the remarks he made during general voir dire, and
his demeanor.
¶ 44 As for the questionnaire, she observed that Juror R.P. worked
in a field “ha[ving] to do with a quality of healthcare for individuals.”
Next, she turned to Juror R.P.’s voir dire comments, focusing on his
“bias against the system.” She construed his comment as an
admission that his bias would “impact his ability to listen to both
sides” and said that he “visibly showed hesitation” about his ability
to be fair. She then summed up her concerns:
And I believe that when you look at that
in-court behavior against what is clearly his
commitment to his job, in terms of serving
people of color and what he talked about in
terms of the defendant being a person of color
— he is himself a person of color — I thought
that the totality of the record indicated that he
has a distinctive leaning, that he himself said
32
he would have trouble listening to the
evidence.
¶ 45 Defense counsel objected to the prosecutor’s challenge on
various grounds. Then he noted that Juror R.P. was “one of the few
Hispanic men on this entire jury panel.” He argued that, under
Batson, the prosecutor could not “exclude him just because he’s
Hispanic and may have something in common with the defendant
in his heritage.” The prosecutor did not dispute defense counsel’s
characterization of the basis of her challenge.
¶ 46 The district court denied the prosecutor’s for-cause challenge,
finding that “there’s a completely inadequate record to challenge
him in this case.” The court clarified, however, that it had not
made any findings under Batson.
¶ 47 When it came time to exercise peremptory strikes, the
prosecutor used her last strike to excuse Juror R.P. Defense
counsel raised a Batson objection. Without awaiting a ruling from
the court on whether Ojeda had made out a prima facie case of
discrimination, the prosecutor proceeded to articulate her rationale
for striking Juror R.P.
33
¶ 48 First, she expressly incorporated her comments related to her
earlier for-cause challenge. Then, she expanded on those
comments, emphasizing the same underlying theme. She told the
court that Juror R.P. would be a bad juror in light of the
weaknesses in the prosecution’s case. She explained that the jury
would hear that the police had misplaced the victim’s rape kit and
she anticipated vigorous cross-examination concerning the DNA
evidence recovered from the kit years later. Juror R.P.’s
reservations about the system might make him more skeptical of
the prosecution’s evidence, she said. The problem was that
because the “defendant is a Latino male,” and Juror R.P. had
discussed his own concerns about being racially profiled, Juror R.P.
(a “polished, educated,” and “persuasive individual”) might then
“steer the jury towards a race-based reason why” Ojeda was
“charged in the case.” The prosecutor also noted that the jury still
included a man of Middle Eastern descent, a “gentleman who is
literally, not metaphorically, but literally of African-American
descent,” another black man, and a Hispanic man.
34
¶ 49 Defense counsel disputed that the prosecutor’s reasons were
race-neutral: “With respect to [Juror R.P.], I think [the prosecutor]
made my argument for me. She’s concerned about a race-based
argument being made by [Juror R.P.] because he’s Hispanic.”
¶ 50 The district court, though, found “abundant race-neutral
reasons for a peremptory to be exercised,” even if they were not the
reasons given by the prosecutor. Juror R.P. and his ex-wife were
both victims of sexual assault, the court said, and Juror R.P.
“struck the Court as remarkably unconcerned about those events in
his own lifetime.” As well, Juror R.P.’s “first thought” when the
prosecutor asked about the delay in bringing the case to trial “was
that the victim had delayed disclosure.” And then there was Juror
R.P.’s “anti-law enforcement ben[t],” which the court did not explain
further. According to the court, these reasons provided “a sufficient
racially neutral basis for the challenge.”
¶ 51 Defense counsel did not challenge any of the court’s reasons
as pretextual, presumably because he had already challenged the
prosecutor’s separate reasons as race-based. Consequently, the
court’s finding of a race-neutral basis for the strike constituted its
35
final ruling on Ojeda’s Batson objection. Following the court’s
ruling, the prosecutor added that she, too, had “taken a note” about
Juror R.P.’s comments concerning the delay and that they were “of
particular concern.”
¶ 52 The jury convicted Ojeda as charged, and the court sentenced
him to 144 years in prison.
II. Law and Review Standard
¶ 53 The Equal Protection Clause of the Fourteenth Amendment
forbids striking a prospective juror for a discriminatory purpose.
Snyder v. Louisiana, 552 U.S. 472, 478 (2008). “Discriminatory
purpose” means that the decision-maker selected a particular
course of action “at least in part ‘because of,’ not merely ‘in spite of,’
its adverse effects upon an identifiable group.” Hernandez v. New
York, 500 U.S. 352, 360 (1991) (quoting Pers. Adm’r v. Feeney, 442
U.S. 256, 279 (1979)).
¶ 54 The Supreme Court has outlined a three-step process for
determining when a peremptory strike is discriminatory:
[O]nce the opponent of a peremptory challenge
has made out a prima facie case of racial
discrimination (step one), the burden of
production shifts to the proponent of the strike
36
to come forward with a race-neutral
explanation (step two). If a race-neutral
explanation is tendered, the trial court must
then decide (step three) whether the opponent
of the strike has proved purposeful racial
discrimination.
Purkett v. Elem, 514 U.S. 765, 767 (1995).
¶ 55 At the second step of the analysis, the issue is the facial
validity of the prosecutor’s explanation. Valdez v. People, 966 P.2d
587, 590 (Colo. 1998). Thus, the second step of the process does
not demand an explanation that is persuasive or even plausible.
Hernandez, 500 U.S. at 360. The reason need only be race neutral.
A race-neutral reason is “an explanation based on something other
than the race of the juror.” Id.; see also People v. Mendoza, 876
P.2d 98, 101 (Colo. App. 1994) (at step two of Batson analysis,
prosecutor must offer an explanation for the strike “based on
something other than race”). If a discriminatory purpose is
“inherent in the prosecutor’s explanation,” the reason offered
cannot be deemed race neutral. Hernandez, 500 U.S. at 360.
¶ 56 While “[c]ircumstantial evidence of invidious intent may
include proof of disproportionate impact,” Batson, 476 U.S. at 93,
the required showing under Batson requires more than a
37
demonstration that the prosecutor’s proffered reason has a racially
disproportionate impact or “is related to the issue of race,” Akins v.
Easterling, 648 F.3d 380, 388 (6th Cir. 2011). Still, the prosecutor
“may not rebut the defendant’s prima facie case of discrimination
by stating merely that [s]he challenged jurors of the defendant’s
race on the assumption — or [her] intuitive judgment — that they
would be partial to the defendant because of their shared race.”
Batson, 476 U.S. at 97.
¶ 57 In evaluating the race neutrality of the prosecutor’s
explanation, a court must determine whether, assuming the
proffered reason for the peremptory challenge is true, the challenge
is based on something other than race or whether it is race-based
and therefore violates the Equal Protection Clause as a matter of
law. Hernandez, 500 U.S. at 359. Accordingly, we apply a de novo
standard when reviewing the second step of the Batson analysis.
Valdez, 966 P.2d at 590.
III. Analysis
A.
38
¶ 58 Ojeda argues that the district court clearly erred at step three
of the Batson analysis. And Judge Fox persuasively credits his view
of the record. But in my view, the district court did not conduct a
step three analysis, nor could it have under the circumstances.
¶ 59 The trial court’s task at step three is to determine whether the
objecting party proved that the striking party exercised peremptory
challenges with a discriminatory purpose. People v. Beauvais, 2017
CO 34, ¶ 23. The crux of the task is discerning whether the
race-neutral reason for the strike is merely a pretext for a
race-based decision. See People v. Rodriguez, 2015 CO 55, ¶ 12.
To make that determination, the court considers the striking party’s
demeanor, the plausibility of the explanation, and whether the
proffered rationale has some basis in accepted trial strategy.
Beauvais, ¶ 23.
¶ 60 So, in the typical third step case, the prosecutor has explained
the strike by asserting, for example, that the juror has a mustache
and a beard, see Purkett, 514 U.S. at 769, or that the juror would
be preoccupied with other obligations, see Snyder, 552 U.S. at 478.
Then it is up to the defendant to show by a preponderance of the
39
evidence that these are not the true reasons for the strike and,
instead, the “‘discriminatory hypothesis’ better fits the evidence.”
People v. Wilson, 2015 CO 54M, ¶ 14.
¶ 61 But here, the prosecutor did not claim that she had struck
Juror R.P. because he had glasses or was reading a magazine
during voir dire; she claimed she struck Juror R.P. because, as a
person of color who had some concerns about the criminal justice
system, he was likely to rally the jury around a theory of the case —
racial profiling — that might seem plausible because of some
purported weaknesses in the prosecution’s case and because the
defendant, too, was Hispanic. And defense counsel did not argue
that the proffered reason for the strike was false and merely a
pretext for discrimination; he accepted the reason as true and
argued that it was expressly based on the juror’s race. In response,
the trial court did not determine that the prosecutor’s reason was
race neutral and then consider the question of pretext; rather, it
offered three race-neutral reasons of its own that might have
justified the prosecutor’s strike and then overruled Ojeda’s Batson
objection.
40
¶ 62 Therefore, like Judge Fox, I see no reason to remand to the
trial court for a hearing at which the court would determine
whether the prosecutor’s explanation for the strike was pretextual.
In my view, that procedure is unnecessary not because the
prosecutor’s reason was clearly pretextual but because it was
clearly race-based — that is, a discriminatory purpose was
“inherent in the prosecutor’s explanation.” Hernandez, 500 U.S. at
360.
B.
¶ 63 As an initial matter, all three members of the division agree
that the trial court cannot supply its own race-neutral reasons for
the prosecutor’s strike. See Valdez, 966 P.2d at 592 n.11. That
constitutes error 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? See Miller-El v. Dretke, 545 U.S. 231, 252
(2005) (The focus is on the striking party’s “stated reason,”
regardless of whether “a trial judge, or an appeals court, can
imagine a reason that might” withstand scrutiny.).
41
¶ 64 Relying on Beauvais, the People contend that the court’s
reliance on its own race-neutral reasons for the strike does not
amount to a finding that the prosecutor’s stated reasons were
race-based. They say that in finding “abundant” race-neutral
grounds for striking Juror R.P., the court “implicitly credited” the
prosecutor’s proffered grounds. I am not persuaded.
¶ 65 In response to the Batson objection, the prosecutor launched
into a long explanation, reiterating and expanding on her proffered
reason for raising the earlier for-cause challenge to Juror R.P.
(Indeed, the reasons were so closely tied that the court prefaced its
Batson ruling by stating that it would “deny the challenge for
cause.”) The trial court did not accept the prosecutor’s reasons,
albeit without making specific credibility findings, as the trial court
did in Beauvais.2 Instead, the court disregarded the prosecutor’s
———————————————————————
2 In People v. Beauvais, 2017 CO 34, the defendant raised a Batson
objection after the prosecutor exercised all of his peremptory strikes
against female jurors. Id. at ¶ 6. The trial court considered all of
the prosecutor’s proffered reasons and determined that while the
reasons were “not strong,” the defendant had not carried her
burden to show purposeful discrimination. Id. at ¶ 12. On appeal,
a majority of a division of this court remanded, concluding that, in
the absence of specific credibility findings, it could neither
42
reasons and determined that, even setting aside the proffered
justification, there were three race-neutral reasons for striking the
juror, none of which were actually mentioned by the prosecutor.
Thus, I read the trial court’s oral ruling as a finding, and a fairly
explicit one, that the prosecutor’s explanation was not race neutral
and that other reasons were necessary to support the strike.
¶ 66 The parties and my colleagues interpret the court’s third
reason, that Juror R.P. had an “anti-law enforcement ben[t],” not as
a new reason imagined by the trial court, but simply as another
way of characterizing the prosecutor’s “anti-establishment” reason.
That distinction is not critical, though. Whether the court accepted
the prosecutor’s reason as race-neutral (and added two additional
reasons) or disregarded her reason as race-based, the de novo
———————————————————————
adequately review the prosecutor’s reasons nor infer that the trial
court had credited the demeanor-based reasons. Id. at ¶ 16. The
supreme court reversed. It held that specific credibility findings are
unnecessary to affirm a step three ruling, whether the proffered
reasons are demeanor-based or non-demeanor-based. Instead, it
instructed, an appellate court conducting a clear error review
should defer to a trial court’s ultimate Batson ruling “so long as the
record reflects that the trial court weighed all of the pertinent
circumstances and supports the court’s conclusion” regarding
purposeful discrimination. Id. at ¶ 32.
43
inquiry at this second step is the same — accepting what the
prosecutor said as true, was her proffered reason race-neutral or
race-based?
¶ 67 In answering that question, I do not accept that the prosecutor
offered multiple independent reasons for the strike. She did not
say, for instance, that Juror R.P. had a mustache, lacked a science
background, was nervous during voir dire, and expressed
anti-establishment views. Those are separate reasons for striking a
juror. Rather, the prosecutor’s long explanation, including her
single demeanor-based reference (Juror R.P.’s “hesitation” about the
effect of his views of the system on his evaluation of the evidence)
related exclusively to Juror R.P.’s “distinctive leaning” and boiled
down to a simple proposition: As a “person of color” who had
concerns about the criminal justice system, Juror R.P. was likely to
“steer the jury toward a race-based reason why Mr. Ojeda,” who
was himself “a person of color,” was “charged in the case.”
¶ 68 That a juror holds “anti-establishment” or “anti-law
enforcement” views can be a race-neutral reason for a strike. See
People v. Friend, 2014 COA 123M, ¶ 17 (holding that striking a
44
prospective juror because she had a bad experience with law
enforcement was a sufficiently race-neutral justification), aff’d in
part and rev’d in part on other grounds, 2018 CO 90. And here, if
the prosecutor had said only that the strike was based on Juror
R.P.’s observation about the disproportionate incarceration rates of
people of color and people with mental health disorders, I would
agree that the reason was race neutral. People of all races have
observed this state of affairs and expressed concern about it.
¶ 69 But the prosecutor went further. She explicitly tied Juror
R.P.’s race to his views on the justice system. It was not just that
Juror R.P. had concerns about the system; it was also that he was a
person of color, like the defendant, and the combination of those
facts made it more likely that he would find a “race-based” reason
for the prosecution and then try to persuade the other jurors to
adopt his view.
¶ 70 Contrary to the People’s assertion, Juror R.P. did not attribute
his views of the criminal justice system to his race. He attributed
his knowledge of the system to his work with “communities of
color.” Only the prosecutor articulated a connection between Juror
45
R.P.’s status as “a person of color” and his so-called
“anti-establishment” views. Thus, I am not convinced by the
People’s argument that “expressly biased jurors would be insulated
from peremptory challenges whenever they pointed to their own
race as a reason for a worldview that favored one party or the
other.” In those cases, I agree with the People that the juror’s
biased worldview, regardless of his or her race, would provide a
race-neutral reason for a peremptory strike. But if the prosecutor,
not the juror, attributes the juror’s worldview to his or her race, or
links the juror’s race and worldview to the defendant’s race, then
the prosecutor’s proffered “worldview” reason is unlikely to be race
neutral. See, e.g., United States v. Bishop, 959 F.2d 820, 822-26
(9th Cir. 1992) (prosecutor’s reason for striking black juror —
because she lived in Compton and therefore likely believed that the
police “pick on black people” — was not a race-neutral reason
where the juror had not expressed any view of the police); see also
Batson, 476 U.S. at 104 (Marshall, J., concurring) (The exclusion of
black jurors cannot be justified by “a belief that blacks are less
46
likely than whites to consider fairly or sympathetically the State’s
case against a black defendant.”).
¶ 71 So, is a “discriminatory purpose” “inherent” in the
prosecution’s explanation? A “discriminatory purpose” exists when
the decision-maker selects a particular course of action “at least in
part” because of its adverse effect on an identifiable group. A
purpose is “inherent” in an explanation if it is “essential” or
“intrinsic” to the explanation. See Webster’s Third New
International Dictionary 1163 (2002). In my view, that the
prosecutor struck Juror R.P. at least in part because of his race is
intrinsic to her explanation. Thus, I conclude that the prosecutor
did not meet her burden at step two of the Batson analysis to
proffer a race-neutral reason for striking the juror.
C.
¶ 72 Discriminatory purpose is not the same as discriminatory
animus. A defendant need not show that the race-based strike was
motivated by the lawyer’s prejudice or animus. And here, I do not
think the record supports any inference that the prosecutor
47
harbored ill will or prejudice toward Juror R.P. or any other person
of color.
¶ 73 Batson’s rule prevents either party from striking jurors “on
account of their race.” 476 U.S. at 89. The notion that jurors of a
particular race or gender will be partial to one side or the other
merely “on account of” their race or gender is generally based on
“crude, inaccurate” stereotypes. 476 U.S. at 104 (Marshall, J.,
concurring). Sometimes, the use of those stereotypes in jury
selection will demonstrate the worst kind of invidious bigotry. See
Neal v. Delaware, 103 U.S. 370, 393-94 (1880). But more often, a
lawyer’s reliance on stereotypes to ferret out sympathetic jurors
“reflect[s] a professional effort to fulfill the lawyer’s obligation to
help his or her client.” Dretke, 545 U.S. at 271 (Breyer, J.,
concurring).
¶ 74 In a child abuse case, for example, a female prosecutor may
rely on the stereotype of women as more nurturing to strike male
jurors from the jury. But if the accused is a new mother, the
prosecutor may think it best to strike women, who might
sympathize with a young mother’s plight. A black prosecutor may
48
assume that black male jurors are likely to have had bad
experiences with police officers and strike them from the jury in any
case that turns on a police officer’s testimony. See id. at 270-71
(referencing professional materials that promote jury selection
based in part on race, nationality, and gender). The first prosecutor
is not a sexist and the second is not a racist.
¶ 75 “Nevertheless, the outcome in terms of jury selection is the
same as it would be were the motive less benign.” Id. at 271. And
so, Batson must be strictly enforced to ensure that any race-based
strike is prohibited. But equating a discriminatory purpose for
exercising a strike with discriminatory animus on the part of the
striking party undermines the goals of Batson.
¶ 76 If a showing of racial animas is necessary, certain lawyers may
enjoy a sort of immunity from Batson objections. The female
prosecutor who strikes women jurors is unlikely to be challenged as
a sexist, and the black prosecutor who strikes black male jurors is
unlikely to be confronted as a racist. But more importantly,
enforcement is already hampered by the implication that a lawyer’s
use of a race- or gender-based strike reveals bigotry or immorality.
49
I suspect that trial judges hesitate to sustain Batson challenges,
when they otherwise might and should, because such a ruling is
seen as tantamount to calling the prosecutor a racist. Perpetuation
of that misconception allows more, not fewer, race-based strikes to
go unchecked.
IV. Conclusion
¶ 77 In this case, I conclude that the prosecutor’s reason for
striking Juror R.P. was based in part on his race. I do not conclude
that it was based in any part on racial animus of the prosecutor.
Nonetheless, because the result is the same, I agree with Judge Fox
that Ojeda’s conviction must be reversed, and the case remanded
for a new trial.
50
JUDGE HAWTHORNE, dissenting.
¶ 78 Because I disagree on procedural grounds with how the
majority and concurrence decide this case given the record before
us, I respectfully dissent.
¶ 79 In People v. Rodriguez, 2015 CO 55, ¶ 1, the Colorado
Supreme Court specifically “consider[ed] how both trial and
appellate courts should determine whether a party has used a
peremptory challenge to purposefully discriminate against a
prospective juror on account of [his or] her race.” This is precisely
the challenge Ojeda brings, so I believe that Rodriguez controls.
¶ 80 Unlike the majority and concurrence, however, I disagree that
the cold record is sufficient as is for us to decide the merits of
Ojeda’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986).
And that’s because the trial court’s Batson analysis was inadequate
in that it failed to make sufficient factual findings about (1) whether
Ojeda “ma[d]e a prima facie showing that the peremptory strike was
based on [Juror R.P.’s] race”; (2) whether the prosecutor provided a
race-neutral explanation; or (3) whether, ultimately, Ojeda
established purposeful discrimination. See Rodriguez, ¶¶ 10-12.
Under these circumstances, Rodriguez requires us to remand the
51
case to the trial court with directions that it conduct the three-step
Batson analysis and make the required factual findings. See id. at
¶ 2 (“[T]he proper remedy for an inadequate inquiry into a Batson
challenge at the time of jury selection is to remand the case to the
trial court with directions to conduct the three-part Batson analysis
and make the required factual findings.”).
¶ 81 So, I disagree with the majority and concurrence’s
agreed-upon remedy. I would follow supreme court precedent — as
we must — and remand the case.
I. Relevant Facts
¶ 82 The prosecutor first challenged Juror R.P. for cause on three
grounds: (1) “the content of his questionnaire”; (2) “his remarks that
he made in open court”; and (3) “his demeanor.” She explained that
Juror R.P. had expressed a “bias” against the system and “visibly
showed hesitation” when asked whether he could be fair.
Expanding further on these reasons, the prosecutor explained that,
With regard to what he put on his
questionnaire, I found it to be significant. I
can’t recall the exact language, but he has
devoted his career to — it’s not listed on the
questionnaire, but he had explained to us in
chambers that it has to do with a quality of
healthcare for individuals.
52
And that, in my mind, very much dovetailed
with his — he’s not a forceful speaker in the
sense that he raises his voice, but he is a man
of very great conviction. And what he talked
about is that he had — he used the word
“bias” against the system. He gave our system
the lowest rating of anyone who has been
asked to offer a score. I believe his score was
4.
And when I asked him about the linkage
between his low confidence in the system and
whether or not he could be fair, he visibly
showed hesitation. He did not speak as readily
or in the same way that he previously had. He
said it would impact his ability to listen to both
sides.
And I believe that when you look at that
in-court behavior against what is clearly his
commitment to his job, in terms of serving
people of color and what he talked about in
terms of the defendant being a person of color
— he is himself a person of color — I thought
that the totality of the record indicated that he
has a distinctive leaning, that he himself said
he would have trouble in listening to the
evidence.
¶ 83 Defense counsel responded that the prosecutor was
mischaracterizing Juror R.P.’s answers and that Juror R.P. had
indicated he could be objective. Defense counsel added that Juror
R.P. was also one of the few Hispanic males on the prospective jury
and that counsel didn’t “know that it’s appropriate to exclude him
53
just because he’s Hispanic and may have something in common
with the defendant in his heritage.”
¶ 84 The court denied the for-cause challenge, finding that there
wasn’t anything in Juror R.P.’s feelings or life experiences indicating
he wouldn’t follow the court’s rules or reach a verdict based on the
evidence. The court also noted that “[t]here’s a completely
inadequate record to challenge him in this case.” The prosecutor
then requested that the court repeat its ruling “with regard to the
Batson issue,” and the court clarified that it “didn’t really reach
[that] issue.” Instead, it “didn’t think it was a founded challenge,
regardless of [Juror R.P.’s] personal ethnicity. I just thought that
he had attitudes that he was certainly entitled to have, and that
there was not anywhere near a sufficient record that they would
affect his ability to be a fair juror.” Juror R.P. wasn’t questioned
again before the parties exercised their peremptory challenges.
¶ 85 The prosecutor used her fifth peremptory challenge to excuse
Juror R.P. Defense counsel asserted a Batson challenge because he
was “obviously concerned about excusing Hispanic males from the
jury.” In response, the prosecutor first incorporated her previous
statements as to Juror R.P., then gave the following explanation:
54
To be utterly disclosing, we are pursuing a
strategy of trying to select jurors who are
establishmentarian, let’s say, who are in favor
of the system that we have. And that’s one of
the reasons I used a rate-the-system type of
device during my voir dire.
[Juror R.P.] gave our system the lowest rating
possible — rather, the lowest rating that
anyone had given, which was a number 4,
which is a matter of some concern.
What we anticipate by way of evidence, Judge,
that is influencing this race-neutral strike is
that the jury is going to hear that there were
errors on the part of the police department in
terms of not having been able to locate the
rape kit in this case within the property
bureau for a period of years. I anticipate some
very vigorous cross-examination of one of the
DNA — not a DNA analyst, but a forensic
serologist, in particular, and I anticipate that
the defense is going to be very strongly
attacking the Denver Police Department, the
Denver Police Crime Lab, and that it will really
build on the statements that have already been
made during jury selection that critique the
system as a whole as a way to build reasonable
doubt in to secure a not guilty verdict.
And so what [Juror R.P.’s] concerns were
about the system — and he said, I have a bias
against the system. And so the concerns that
we have do not relate in any way to the color of
the skin or his national origin, but rather to
his stated reservations in that regard when we
know what the evidence will be and when we
are now getting some pretty strong clues about
what the defense will be.
55
¶ 86 The prosecutor continued by noting the racial composition of
the jury box and of the group of prospective jurors recently struck
by the defense. She then added:
Your Honor, if I could wrap up with two other
thoughts that are very strongly informing our
desire to exercise a strike as to [Juror R.P.].
He’s a polished, educated, and, I believe,
persuasive individual. And because of his
presentation in that regard, the concern that
we have is that the critique of the criminal
justice system that he has talked about, he
could be very, very strongly persuasive in the
jury room. That’s race neutral. We see him as
a person who could very much persuade
others of the reservations that he has. And
given what we anticipate by way of the
evidence, that is the basis for attempting to
eliminate him.
The other item, which is a slightly different
concept, is that I anticipate the defense is
going to make a very strong charge against the
validity and reliability of the DNA results. And
I believe that they are going to say that it was
some unnamed individual who did this
violence against [the victim]. And the fact that
the defendant is a Latino male, if the jury is
persuaded that there is not a DNA connection
between the defendant — or excuse me,
between the forensic evidence in this case and
this defendant, it seems to me that the
comments that [Juror R.P.] made about having
concerns about racial profiling will really come
into play in the sense that I think that he may
then steer the jury towards a race-based
reason why Mr. Ojeda, you know, was charged
56
in the case, and that is because he talked
about that — [Juror R.P.] had talked about
racial profiling in conjunction with his other
considerations. Since I think that’s where the
defense is going — you know, we have to
forecast at this stage of the game, and those
are all of the race-neutral reasons why we
believe that a strike is constitutional and not
racially motivated as to [Juror R.P.].
¶ 87 Defense counsel responded that “[w]ith respect to [Juror R.P.],
I think [the prosecutor] made my argument for me. She’s
concerned about a race-based argument being made by [Juror R.P.]
because he’s Hispanic.” The court then made its ruling:
The Court will deny the challenge for cause as
to [Juror R.P.], but there are abundant
race-neutral reasons for a peremptory to be
exercised. First of all, he too is a victim of a
sex assault, as is his wife, and he struck the
Court as remarkably unconcerned about those
events in his own lifetime. His first thought
when there was a discussion of the time it’s
taken to bring this case was that the victim
had delayed disclosure. He does have an
anti-law enforcement bend, so the Court finds
there’s a sufficient racially neutral basis for the
challenge.
¶ 88 Immediately following the court’s ruling, the prosecutor
supplemented her record by noting that she had in her notes that
when Juror R.P. heard the age of the case, he thought something
might have gone wrong, which also caused her “particular concern.”
57
II. The Batson Analysis
¶ 89 Following Rodriguez, I believe that “[t]he proper remedy in this
case depends upon whether the trial court completed the Batson
analysis but made a clearly erroneous ruling as to the existence of
racial discrimination, or whether the court conducted an inadequate
Batson analysis.” Rodriguez, ¶ 7 (emphasis added). Said another
way, the threshold question is: Did the trial court make sufficient
factual findings to allow us to determine whether Ojeda established
that the prosecutor struck Juror R.P. because of his race? Id. I
think the answer to that question is clearly “no.”
¶ 90 The Equal Protection Clause of the Fourteenth Amendment
forbids a challenge to a potential juror based solely on race.
Batson, 476 U.S. 79; People v. Wilson, 2015 CO 54M, ¶ 10 n.4.
When a party raises a Batson challenge, the trial court should
engage in a three-step analysis to assess the claim of racial
discrimination and determine whether the defendant has proven
such claim. Wilson, ¶ 10; Rodriguez, ¶ 9.
¶ 91 Rodriguez lays out Batson’s framework and explains its three
steps in detail, as do my colleagues, so I won’t repeat it all again.
58
Instead, I’ll only reiterate what I believe is most relevant to this
case.
¶ 92 The first step, requiring that “the defendant must make a
prima facie showing that the peremptory strike was based on the
prospective juror’s race,” Rodriguez, ¶ 10, isn’t challenged here. Not
by the People, the majority, or the concurrence. Still, I note that, at
step one, the burden is on the defendant and the trial court should
make a record about whether he or she has satisfied that burden
before proceeding to step two. See Batson, 476 U.S. at 96 (“In
deciding whether the defendant has made the requisite showing,
the trial court should consider all relevant circumstances.”);
Rodriguez, ¶ 13.
¶ 93 If the defendant successfully makes a prima facie showing, the
burden shifts at step two to the striking party — here, the People —
to provide a race-neutral explanation for excusing the prospective
juror. Rodriguez, ¶ 11. While the prosecutor “must do more than
deny a discriminatory motive or affirm his [or her] good faith . . . .
[t]o pass muster, the explanation need not be ‘persuasive, or even
plausible, as long as it does not deny equal protection.” Id. (quoting
Purkett v. Elem, 514 U.S. 765, 768 (1995)). “Nothing more is
59
required for the inquiry to proceed to step three.” Id. But again,
the trial court should make a record stating whether the prosecutor
has met his or her burden before moving on.
¶ 94 At step three — after the defendant has an opportunity to
rebut the prosecutor’s race-neutral explanation — the trial court
“must decide the ultimate question: whether the defendant has
established purposeful discrimination.” Id. at ¶ 12 (emphasis
added).
¶ 95 It is at this stage that the trial court must assess the
prosecutor’s actual subjective intent and the plausibility of her
nondiscriminatory explanations to determine whether the defendant
has sufficiently established purposeful discrimination. Miller-El v.
Dretke, 545 U.S. 231, 252 (2005); see Hernandez v. New York, 500
U.S. 352, 378 (1991) (“[T]he Court has imposed on the defendant
the added requirement that he generate evidence of the prosecutor’s
actual subjective intent to discriminate.”); Rodriguez, ¶ 12 (“It is at
this stage that ‘implausible or fantastic [step-two] justifications may
(and probably will) be found to be pretexts for purposeful
discrimination.’” (quoting Purkett, 514 U.S. at 768)).
60
¶ 96 The trial court’s ruling at step three “should be based on its
evaluation of the prosecutor’s credibility and the plausibility of his
[or her] explanation.” Rodriguez, ¶ 12. If the prosecutor’s “stated
reason does not hold up, its pretextual significance does not fade
because a trial judge . . . can imagine a reason that might not have
been shown up as false.” Dretke, 545 U.S. at 252.
III. Standard of Review
¶ 97 “[E]ach step of the trial court’s Batson analysis is subject to a
separate standard of review.” Rodriguez, ¶ 13 (citing Valdez v.
People, 966 P.2d 587, 590 (Colo. 1998)).
¶ 98 At step one, “the reviewing court considers de novo whether
the defendant established a legally sufficient prima facie case —
though it should defer to the trial court’s underlying factual
findings.” Id. Step two, “the facial validity of the prosecutor’s
justification” is also reviewed de novo, again with deference given to
the trial court’s factual findings. Id.
¶ 99 Then, at step three, the trial court’s “determination as to the
existence of racial discrimination is an issue of fact to which an
appellate court should defer, reviewing only for clear error.” Id.
“Since the trial judge’s findings in the context under consideration
61
here largely will turn on evaluation of credibility, a reviewing court
ordinarily should give those findings great deference.” Batson, 476
U.S. at 98 n.21.
IV. The Trial Court’s Findings (Or Lack Thereof)
¶ 100 “To determine whether we can conclude that [the] strike
violated Batson, we evaluate the adequacy of the trial court’s
findings.” Rodriguez, ¶ 14.
¶ 101 I begin with Batson’s step one, where Ojeda “must make a
prima facie showing that the peremptory strike was based on” Juror
R.P.’s race. Id. at ¶ 10. After the prosecutor moved to peremptorily
strike Juror R.P., defense counsel immediately challenged the strike
under Batson. He argued, “I am obviously concerned about
excusing Hispanic males from the jury.” At that point, the trial
court should have made — but didn’t — findings about whether
Ojeda satisfied his step-one burden. Rather, it allowed the
prosecutor to respond. The prosecutor immediately jumped to
Batson’s step two, where she articulated her race-neutral rationale
for the strike. And after she did so, the trial court again should
have made — but didn’t — findings about whether her explanation
“pass[ed] muster.” Id. at ¶ 11. Instead, it merely asked defense
62
counsel if he had “anything further?” Defense counsel promptly
replied that, as to Juror R.P., “I think [the prosecutor] made my
argument for me. She’s concerned about a race-based argument
being made by [Juror R.P.] because he’s Hispanic.” The court then
launched into its purported step-three ruling.
¶ 102 Although our review at steps one and two is de novo, we’re
nonetheless required to “defer to the trial court’s underlying factual
findings” in conducting that review. Id. at ¶ 13. But where there
aren’t any factual findings because the court’s Batson analysis was
incomplete, and therefore inadequate, we can’t simply stand in for
the trial court and make factual findings of our own. Under those
circumstances, Rodriguez requires us to remand the case to the
trial court so that it may make the required factual findings. At
that point, we can properly proceed with our de novo review. See
id. at ¶¶ 2, 13.
¶ 103 Finally, at step three, our review of the court’s ruling “as to the
existence of racial discrimination is an issue of fact to which [we]
should defer, reviewing only for clear error.” Id. at ¶ 13. This is
because the court’s step-three determination turns largely on “its
evaluation of the prosecutor’s credibility and the plausibility of his
63
[or her] explanation.” Id. at ¶ 12; see also Wilson, ¶ 13 (“The
inquiry at step three requires the trial court to decide whether to
believe counsel’s race-neutral explanation for a peremptory
challenge. ‘The best evidence often will be the demeanor of the
attorney who exercises the challenge,’ evaluation of which lies
‘peculiarly within a trial judge’s province.’” (quoting Hernandez, 500
U.S. at 365)) (alterations omitted).
¶ 104 But again, the trial court’s step-three analysis was inadequate.
Unlike at steps one and two, the court did make some findings at
step three. It offered — sua sponte — two race-neutral reasons for
striking Juror R.P.: (1) that R.P. and his wife were not only sexual
assault victims themselves, but that R.P. seemed “remarkably
unconcerned” about those life experiences; and (2) that R.P.
surmised the age of the case might have been because of the
victim’s delayed disclosure. Although the prosecutor agreed with
the second reason after the court made its Batson ruling, neither
reason was initially given as a basis for the prosecutor’s exercise of
a peremptory challenge. And, it’s improper for a trial court to “sua
sponte offer[] its own plausible reasons behind the peremptory
strike[] at issue.” Valdez, 966 P.2d at 592 n.11; see also Dretke,
64
545 U.S. at 252 (“The Court of Appeals’s and the dissent’s
substitution of a reason for eliminating [the juror] does nothing to
satisfy the prosecutors’ burden of stating a racially neutral
explanation for their own actions.”); Rodriguez, ¶ 15 n.5 (concluding
that the trial court never evaluated the validity of the prosecutor’s
justification because it based its ruling on a different race-neutral
explanation than the one offered by the prosecution).
¶ 105 So, arguably, the only mention the court made to a reason
stated by the prosecutor was that Juror R.P. had an “anti-law
enforcement bend.” The court didn’t mention or evaluate the
prosecutor’s credibility, demeanor, or intent. Nor did it evaluate
Juror R.P.’s demeanor, given the prosecutor’s demeanor-based
reasons for the strike, including that he “visibly showed hesitation”
and didn’t “speak as readily” in response to questions about
whether he could be fair. And, it didn’t consider the plausibility or
persuasiveness of the prosecutor’s explanations for the strike.
Especially at step three, the trial court’s
firsthand observations are crucial: it “must
evaluate not only whether the prosecutor’s
demeanor belies a discriminatory intent, but
also whether the [prospective] juror’s
demeanor can credibly be said to have
65
exhibited the basis for the strike attributed to
the [prospective] juror by the prosecutor.”
Rodriguez, ¶ 18 (quoting Snyder v. Louisiana, 552 U.S. 472, 477
(2008)); see also Wilson, ¶ 18 (“Only the trial court can assess
non-verbal cues, such as hesitation, voice inflection, and facial
expressions, that are not recorded on a transcript.”).
¶ 106 Absent adequate findings, I don’t think we should stand in the
trial court’s shoes and, relying on the cold record, say whether the
prosecutor struck Juror R.P. because of his race. See Rodriguez,
¶¶ 17-18 (where the trial court didn’t make the necessary findings
at steps one, two, or three, “it is impossible for a reviewing court to
tell whether the prosecutor struck [the juror] because of her race”).
The need for the trial court’s factual findings at each step is made
more apparent by this very opinion where, absent such findings,
three judges on this court are divided about how to interpret the
prosecutor’s words.
V. Conclusion
¶ 107 I believe that the proper remedy is for us to remand the case to
the trial court and allow it to conduct the three-part Batson
66
analysis and make the required factual findings at each step. The
Colorado Supreme Court in Rodriguez put it best:
An inadequate analysis by the trial court does
not equate to a constitutional violation by the
prosecutor, and it should not call for the same
remedy. The passage of time may create
challenges for the trial court on remand, but
those challenges do not alter the structure of
the Batson analysis or relieve [the defendant]
of his burden. The only way to determine
whether racial discrimination tainted the
prosecutor’s use of peremptory challenges is
for the trial court to conduct further
proceedings as it deems necessary on remand
and complete the Batson analysis.
Id. at ¶ 20 (citations omitted). For these reasons, I respectfully
dissent.
67