NACDL - Struck: Race, Jury Selection, and the Need for Reform in Colorado

Struck: Race, Jury Selection, and the Need for Reform in Colorado

Recording and resources for Struck: Race, Jury Selection, and the Need for Reform in Colorado.

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In Batson v. Kentucky (1986), the Supreme Court created a two-step inquiry in order to determine whether the use of peremptory strikes were racially biased. In what is now known as a Batson challenge, someone may object to the use of a peremptory strike on the grounds that it is being used to exclude a potential juror based on race. In 2010, the Equal Justice Initiative conducted a comprehensive study that exposed that the racially biased use of peremptory strikes persists, and Colorado is no exception. This year, Colorado legislators considered SB 128, legislation that would have allowed courts and opposing counsel to raise objections to the use of peremptory challenges that eliminate jurors for reasons that correlate to race. The bill would have provided a list of presumptively invalid reasons for peremptory challenges, such as having prior contact with law enforcement officers, receiving state benefits, or residing in certain neighborhoods.

On Monday, March 28th, 2022, NACDL hosted Struck: Race, Jury Selection, and the Need for Reform in Colorado, a webinar that delved into the discriminatory use of peremptory strikes in jury selection and avenues for reform. The discussion was moderated by NACDL’s Public Defense Counsel Monica Milton and featured the nation’s leading jury experts including Paula Hannaford-Agor, Director of the Center for Jury Studies at the National Center for State Courts; Tristan Gorman, Policy Director, Colorado Criminal Defense Bar; and Brendon Woods, Alameda County Public Defender.

Webinar Resources

Colorado SB22-128
Fact Sheet: Preventing Implicit Bias in Criminal Jury Selection, Colorado Criminal Defense Bar, February 22, 2022.
Race and the Jury: Illegal Racial Discrimination in Jury Selection, Equal Justice Initiative, 2021.
Batson Reform: State by State, Berkeley Law (web resource)
From the Community to the Courtroom: Increasing Diversity and Access to the Jury Box (3-Part NACDL Webinar Series)
Arizona Supreme Court Will Be First State to End Peremptory Challenges to Potential Jurors, By Paul Devenport, Associated Press, August 29, 2021.
Commentary: California Passed a New Law to Diversify Juries. Here’s Why It’s So Important. By Jerry Wallingford, The San Diego Union Tribune, December 3, 2020.
California Adopts New Laws to Fight Racism in Jury Selection, By Kyle C Barry, The Appeal, September 30, 2020.
Color-Blind But Not Color-Deaf: Accent Discrimination in Jury Selection, Jasmine Gonzales Rose, 44 N.Y.U Rev. L. & Soc. Change 309 (2020)
Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, Berkeley Law Death Penalty Clinic, June 2020.
Washington Supreme Court is First in Nation to Adopt Rule to Reduce Implicit Racial Bias in Jury Selection, ACLU, April 9, 2018.
Washington Supreme Court General Rule 37: Jury Selection
A Call to Criminal Courts: Record Rules for Batson, Catherine Grosso and Barbara O’Brien, Kentucky Law Journal, Vol. 105 (2017).
Object Anyway, More Perfect by NPR, July 2016 (podcast).
This is How Prosecutors (Still) Keep Black People Off Juries, By Michael Mechanic, Mother Jones, November 5, 2015.
Asymmetry as Fairness: Reversing a Peremptory Trend, Anna Roberts, 92 Wash. U. L. Rev. 1503 (2015).
Beyond Batson's Scrutiny: A Preliminary Look at Racial Disparities in Prosecutorial Preemptory Strikes Following the Passage of the North Carolina Racial Justice Act, Catherine Grosso and Barbara O’Brien, 46 U.C. Davis L. Rev. 1623 (2013).
The Impact of Jury Race in Criminal Trials, Shamena Anwar, Patrick Bayer, and Randi Hjalmarsson, 127 Q.J.Econ. 1017,1021,1032 (2012).
Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, Equal Justice Initiative, 2010.
On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, Samuel Sommers, J. Personality and Social Psychology, 2006, Vol. 90, No. 4, 597– 612 (2006).
Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy, Lesia Ellis and Shari Siedman Diamond, 78 Chi.-Kent L. Rev. 1033 (2003).

Case Law

People v. Ojeda Opinion (2021)
People v. Silas, A150512 (Cal. Ct. App. Sep. 17, 2021) (Contra Costa, CA)(Reversing a conviction for racially discriminatory strikes based upon juror support of Black Lives Matter.)
Flowers v. Mississippi, 588 U.S. ___ (2019) (Successful challenge of racially motivated strikes by the prosecution, based on a pattern of conduct over the course of 6 trials. In Sept. 2020 the state dropped the charges against Flowers.)
Foster v. Chatman, 578 U.S. ___ (2016) (Successful challenge of racially motivated strikes by the prosecution, relying on after discovered evidence of prosecution team notes)
Georgia v. McCollum, 505 U.S. 42 (1992) (holding the Constitution prohibits the defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges.)