Court of Appeal found that El Paso County prosecutor did not violate ban on racial revocation of jurors by removing black woman from jury roll because she looked “bitter” .

The ruling involves a 35-year-old forensic test for biases that critics say are too easy to evade and ignore lawyers’ unconscious motives.

Calil Jamari Witherspoon has appealed his 2019 convictions for attempted first degree assault, threats and prohibited use of a weapon, arguing that the trial court judge wrongly denied his challenge to the dismissal of ‘a black woman from his jury. Known as the “Batson Challenge,” the legal objection arose out of the 1986 United States Supreme Court ruling in Batson v. Kentucky, which prohibited intentional racial discrimination in jury selection.

But on Thursday, a panel of three state appeals court judges found that District Court Judge Jill Brady did not err in ruling that the prosecutor offered sufficient non-racial reasons to hit the woman identified as TD by the jury.

At Witherspoon’s trial, the anonymous prosecutor used one of her peremptory strikes – which allow a juror to be fired without explanation – to excuse TD. .

The prosecutor responded that TD “wrote in her questionnaire that she was upset with the wait to enter the courthouse and the second-hand smoke and that it was cold. his face.”

The prosecutor then admitted that TD had made a joke when the defense attorney asked him what his definition of a child was (“My opinion on a child is once he cannot be on my tax on income is not a child. “). But otherwise, the prosecutor continued, “she looked like she wasn’t happy to be here.”

When one of the parties challenges Batson, they must make a plausible claim that a juror is beaten because of his race. The party seeking to excuse the juror must provide a non-racial reason for doing so, and the judge then assesses the evidence and decides whether the strike likely involves intentional discrimination.

But critics of the Batson process point out that lawyers can thwart the racial ban by simply providing alternative explanations, or by citing features of jurors that are not explicitly racial, but reflect implicit biases. For example, excusing jurors who have a criminal record is more likely to affect people of color.

Washington state passed a rule change in 2018 recognizing the historical justifications used to hit jurors of color, including their status as non-native English speakers, their views on the police and their behavior. These factors are now presumed invalid in the face of a Batson challenge.

The Colorado Supreme Court had the opportunity to pass a similar rule this year, but rejected the proposal. In a report to the court by a majority of members of a committee on the rules of criminal procedure, there was a realization that excusing a juror on the basis of his behavior can be problematic.

“[M]all peremptory challenges currently survive a Batson objection because the dissenting side offers a race-neutral characterization of the potential juror’s behavior, ”the report noted. “While behavior can always be a valid and breed neutral reason, this [proposal] simply requires corroboration of the alleged behavior of the potential juror by the trial court or opposing lawyer in order to support the peremptory challenge on that basis. “

This is not what happened at the Witherspoon trial.

In response to the prosecutor’s observation that TD was “not happy to be here”, defense counsel said that TD had listened and paid attention, and indicated that it would force the prosecution to prove the guilt of the accused.

Brady denied the Batson challenge. Without indicating whether she agreed with the attorney’s qualification of TD’s behavior, she found the explanation credible. The prosecutor had come up with a racially-independent reason for hitting TD, Brady explained, based on “TD’s bitter attitude towards the system or the process earlier in her jury quiz indicating that she didn’t like it. not having to queue or smell the occasion “. smoke, and [being] disengaged from the process and that’s why she hit her, not on the basis of race. “

The defense attorney later said the prosecutor could have based his assumptions on unconscious racial stereotypes.

The Court of Appeal panel agreed that it would have been better if Brady had documented his own findings about TD’s behavior during jury selection. But overall, the panel found no reason to doubt their decision.

“[T]the court of first instance made expressly states that the reasons given by the prosecutor for exercising the peremptory challenge were credible, ”wrote Judge John Daniel Dailey, who is also the chairman of the committee that suggested the rule change. “We have no basis to question this determination of credibility. “

Ann Roan, a criminal defense attorney, believed the Witherspoon case illustrated the mistake of relying on a lawyer’s perception of juror behavior to explain potential racial motives.

“The defense attorney made it clear that this was not what this attorney observed. And the judge never recorded that the judge independently observed and corroborated what the prosecutor claimed to have seen,” she declared.

Research has documented the various ways in which blacks are subject to misperceptions. A 2019 article described how non-black research participants had a harder time distinguishing between genuine smiles and fake smiles on black faces than on white faces. Subjects in a 2017 study ranked young black men as taller and more physically threatening than white men based on pictures. And a 2009 analysis found several studies showing that interracial interactions cause “anxiety, fear, and sometimes even anger.”

In addition to a Washington-style rule change, others have suggested eliminating peremptory challenges altogether or implementing implicit bias training for lawyers as a more effective way to tackle racial discrimination in law. jury selection than the current Batson standard.

Last month, the state Supreme Court heard oral arguments in the Batson case involving a Hispanic defendant in Denver. A court of appeals panel ruled that the prosecutor failed to provide a sufficiently race-neutral explanation for striking a Hispanic juror and ordered a new trial. However, in this case, unlike Witherspoon’s, the prosecutor actually mentioned the juror’s race as an explanation for his actions.

The case is People against Witherspoon.


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