EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 31, 2021

Colorado Court of Appeals Finds Trial Court Can't Rely on Additional Race-Neutral Reasons Given on Remand in Resolving Batson Claim

In Batson v. Kentucky, the Supreme Court "ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial."* Under Batson,

once 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 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 (1995).

So, let's say that a prosecutor gives race-neutral reasons for striking a prospective juror during jury selection and later gives additional reasons on remand. Should the court be able to rely upon the additional reasons? That was the question addressed by the Colorado Court of Appeals, Division II in its recent opinion in People v. Madrid, 2021 WL 2149340 (Colo. App. 2021).

In Madrid, Theodore Israel Madrid was charged 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. During jury selection, after the prosecution exercised a peremptory challenge to excuse Prospective Juror T, defense counsel made 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.

In response, the prosecutor stated

Judge, first of all, he's being replaced by another African-American juror.** So, I don't think that they can really claim that this is not race neutral. But the real problem is we don't know very much about him. He has a hearing issue it appears and he's sort of completely nonresponsive. We have very little information on him from the questionnaire and no time to really have a very detailed conversation with him. Terribly uncomfortable with him where we have very little information.

The judge rejected the Batson objection, finding that Madrid hadn't satisfied step one of the Batson test, and Madrid was ultimately convicted. On direct appeal, the Court of Appeals found that this ruling was erroneous and remanded so that the trial court could hold a hearing and "'take additional evidence and allow further argument at the request of either party.'”

At the end of th[at] 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.

Ultimately, "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."

The Court of Appeals found that that

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 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....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,”... and the district court's acceptance of and reliance on the new reasons to deny the Batson challenge amounts to clear error.

Because the Court of Appeals couldn't determine whether the trial relied upon the additional reasons given by the prosecution on remand, it reversed the judgment of conviction and remanded for a new trial.



*The Supreme Court has subsequently held that Batson covers other types of discrimination, like gender discrimination. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994).

**The Court of Appeals noted that "[t]he 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.'"


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