v. Ojeda

2019 COA 137

• Court: Colorado Court of Appeals
• Decided: September 5, 2019
• Docket: 15CA1517, People
• Status: Published

Opinion

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.

¶ 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).

¶ 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.

¶ 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.

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.

¶ 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

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.],

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.