Appeals court finds no discrimination in prosecutors’ removal of 2 Hispanic jurors | Subscriber Content

Colorado’s second-highest court has declined to find Weld County prosecutors engaged in unconstitutional racial discrimination by dismissing two Hispanic men from serving on a Hispanic defendant’s jury.

Jurors convicted Javier Hernandez-Martinez in 2018 on three drug distribution charges and he received a four-year prison sentence. On appeal, Hernandez-Martinez argued the prosecution violated the U.S. Supreme Court’s longstanding prohibition on purposeful racial discrimination by removing two Hispanic men from the jury pool for reasons linked to their race.

On Thursday, a three-judge panel of the Court of Appeals disagreed. The man identified as Juror S was removed, or struck, for having negative interactions with law enforcement, and the other man, Juror J, was struck because he voiced support for legalizing drugs.

“Having a bad experience with law enforcement and an inability to be unbiased as a result are race-neutral reasons for striking a juror,” wrote Judge Jaclyn Casey Brown in the panel’s opinion, upholding the strike of Juror S.

As for Juror J, “striking jurors holding such strong beliefs about decriminalization of drugs makes sense” in a narcotics case like Hernandez-Martinez’s, Brown added.

The Supreme Court deemed intentional racial discrimination in jury selection to be unconstitutional in its 1986 decision of Batson v. Kentucky, a case that involved a prosecutor striking the Black members of a Black defendant’s jury pool, leaving an all-white jury to convict him. Now, parties may raise “Batson challenges” during attempts to strike jurors of color.

Batson challenges proceed in three steps. First, the defendant must state a plausible case that intentional racial discrimination is occurring. Second, the prosecutor must supply a “race-neutral” reason for striking the juror of color. Finally, the trial judge decides whether the race-neutral explanation is credible.

During voir dire, which is the part of jury selection where the parties question members of the jury pool, Juror S volunteered to the prosecutor that Hernandez-Martinez “does remind me of my stepbrother, who was born in Mexico.” He immediately added that he did not know if he could be “a hundred percent bias-free” toward police.

Juror S elaborated that he shares a name with another criminal defendant, which has resulted in police mistakenly arresting him. One time, officers arrested him in front of his son, and then “made fun” of him at the jail. Despite that, Juror S agreed not all police officers are bad.

At another point in voir dire, one juror stated that he was in support of “decriminalization and legalization of widespread drugs.” Juror J agreed that legalization would cut down on the illegal drug trade and enhance community safety.

The prosecution moved to strike Juror S and Juror J, prompting the defense to raise a Batson challenge.

In response, the unnamed prosecutor pointed out that the defense had already removed other Hispanic jurors. Justifying the strike of Juror S, the prosecutor said the man “had a bad experience with law enforcement, talked about some law enforcement being bad and said that he wasn’t sure that he could be completely unbiased.”

For Juror J, the prosecutor cited his support for decriminalizing drugs and Juror J’s indication on a questionnaire that he had a “criminal history.” The questionnaire went missing after trial, however, and there was no way to verify the prosecutor’s assertion on appeal.

Stephen J. Schapanski, a retired Larimer County judge who presided over the case, denied the Batson challenge. He agreed the defense had removed Hispanic jurors, too. Otherwise, he found the prosecution’s reasons were race-neutral.

Hernandez-Martinez argued to the Court of Appeals that the prosecutors singled out Hispanic jurors when there were non-Hispanic members of the jury pool who were similarly situated — some of whom ended up serving. For example, two non-Hispanic people had also been involved in criminal cases like Juror J, but they remained on the jury. One of those jurors also said police “can be corrupt,” a description Juror S never endorsed.

“Whether or not the defense also struck minority members wasn’t relevant to determining whether the prosecutor engaged in purposeful discrimination,” wrote Deputy State Public Defender Chelsea E. Mowrer to the appellate court.

The prosecution countered that Juror S had expressed a “personal” opinion that was negative toward law enforcement, as opposed to the non-Hispanic juror’s “generic belief that some police officers may be corrupt.” It also reiterated that Juror J’s criminal involvement and views on drug decriminalization affected his ability to be impartial.

The Court of Appeals panel believed the prosecution’s race-neutral explanations were sufficient. For Juror S, even though he had briefly raised his stepbrother’s national origin, he did not link his own race to the harassment he experienced by law enforcement. Therefore, the prosecution’s reliance on Juror S’s anti-police bias was not rooted in race.

Similarly, the court did not believe the prosecutor’s reasons for dismissing Juror J were discriminatory, even though other, non-Hispanic jurors also supported decriminalizing drugs, and one served on the jury.

“Although empaneled jurors expressed varying views about drug decriminalization, none of the jurors expressed the categorical views on decriminalization” that Juror J did, Brown wrote in the Jan. 19 opinion.

The panel rejected Hernandez-Martinez’s other claims on appeal, which were based on the evidence at trial.

Next month, the Colorado Supreme Court will hold a public hearing on proposed criminal rule changes to the process of Batson challenges, in acknowledgement that racially based juror strikes are still occurring. Under the proposal, a juror’s distrust of police or prior contact with law enforcement would, without more, be invalid reasons for striking jurors of color.