I’ve been there, sitting at the Defense table during trial and the parties had just concluded voir dire, also known as jury selection. The court was preparing to swear in a newly formed jury of my client’s peers. Juror badges were being passed out. My co-counsel was getting ready to deliver opening statements, when I looked into the eyes of each juror and saw what I believed would lead to the loss of our case. My client, a white male, accused of child abuse, unwanted sexual contact, assault, and domestic violence against the mother of his children, was now sitting across from an all female jury.
For a defendant who has never experienced a jury trial and is unfamiliar with the judicial process, a trial is nerve racking. There is the fear of being found guilty, the consequences of being guilty, the desire to have a fair trial, and the pressure surrounding the decision to remain silent or testify. Those fears are escalated when you look at the jury pool of your “peers” and realize that they are innately biased.
In 2017, the Colorado Court of Appeals reviewed The People of the State of Colorado versus Kyree Davon Howard-Walker. Kyree began jury selection with a pool of individuals from diverse backgrounds. By the end of jury selection, Kyree faced a jury pool of all white Coloradoans, who found him guilty. Kyree was convicted of first-degree burglary and conspiracy to commit first-degree burglary.
During trial the evidence revealed that when officers searched Kyree’s home after his initial arrest they didn’t find any of the stolen items from the victim’s home. When a surveillance video of the incident was shown to Kyree’s probation officer, the officer wasn’t 100% certain that the person in the video was Kyree; however, he was 95% sure. The same surveillance footage was shown to Kyree’s girlfriend, and she was only 80% sure that the person in the video was Kyree. Kyree was interrogated by the police, but never confessed to the crimes, and during trial, Kyree’s girlfriend testified that officers coerced her to say that Kyree was in the video.
As a result, Kyree and his counsel ran a defense of mistaken identity and, despite the lack of evidence and uncertainty from witnesses who identified Kyree, the jury found Kyree guilty beyond a reasonable doubt. Kyree was sentenced to 13 years in prison.
The Burden of Batson
The Sixth Amendment guarantees a fair and impartial trial by a jury of our peers. The Fourteenth Amendment also guarantees equal protection under the law. The United States Supreme Court solidified these notions when it established a safeguard and three-step analysis in Batson v. Kentucky now known as a “Batson Challenge.” Essentially, “the Supreme Court prescribed a three-step process to evaluate claims of purposeful discrimination in jury selection.”
Keeping in mind the case I tried resulting in an all female jury with my male client charged with domestic violence against his female partner as our Batson example the following are the three steps:
1. Step one in the Batson Challenge required me to raise an inference that discrimination occurred. This means, the burden is on the party requesting a Batson Challenge. Step one can be as simple as stating that the D.A. dismissed all male jurors solely because they were male, and my client is also male.
2. Step two shifts the burden to the D.A. who now must explain their non-discriminatory reasons for dismissing all the male jurors. Dismissing a juror using what is known, as a preemptory strike needs little to no explanation, so this phase, is easily overcome by the prosecution. The D.A. could have stated reasons as simple as: Mr. John Doe has a distrust for the government and won’t treat me, as the prosecutor fairly; or Mr. John Doe has been arrested for domestic violence in the past and will sympathize with the defendant regardless of the evidence presented.
3. Under step three, all eyes are now on the trial judge. Step three requires the court to evaluate the D.A.’s reasoning for dismissing members of the jury that fall into a protected class (race, ethnicity, gender), and determine whether or not their reasons are valid, or an attempt to cover up their discriminatory motive.
In Batson, the prosecution excused all four black members of the jury. The Court held that although a black defendant is not entitled to a black jury in whole or in part, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race “on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”
During Kyree’s trial, the Court of Appeals looked at each of the prosecutor’s juror strikes, which included a Hispanic female, an African-American male, and a Hispanic male. During voir dire and the process of excusing jurors, there was a point where the prosecution accepted the jury panel as it was. At that time, the jury physically appeared to be “all white.” Kyree then excuses additional preemptory challenges, which resulted in one African-American male being added to the jury panel. Although the prosecution previously stated he accepted the jury as it stood with an all white panel, the D.A. now wanted to exercise additional challenges. At this time, the D.A. excused the new African American juror. The D.A. explained during the Batson analysis that the African-American juror seemed anti-prosecution because he revealed “bad experience[s]” with law enforcement. Specifically, this juror felt that African-American males, including himself, were more likely to be misidentified by the police. Once the D.A. dismissed the African-American male, a Hispanic male was added to the jury panel. The D.A. then exercised his final challenge to excuse the Hispanic male. His reasoning was again, that the Hispanic male had poor experiences with law enforcement. Lastly, the D.A. dismissed the Hispanic female on the jury because she seemed “jumpy” and “didn’t want to be here.”
Unfortunately for Kyree, the trial court and the Court of Appeals accepted the explanations of the D.A. as valid and non-discriminatory. Kyree attempted to show that the D.A. had a pattern of dismissing minority jurors. Further, Kyree highlighted that the D.A. did not dismiss a white juror who stated he had bad experiences with law enforcement and, as a fire fighter; he often bumps heads with the police at work. The Court found that the fire fighters experience with police officer, though negative, were “significantly different” than the experiences of the minority jurors and that the fire fighter would be able to put his negative perceptions of officers aside to be on the jury.
While The Supreme Court has put in safe guards and reaffirmed holdings in support of the 14th amendment there are still defendants facing jury panels crafted by the Government in way that makes them feel like there’s no hope for vindication. There are defendants like Kyree, who despite challenging the trial court and then a higher court, will still be subject to over a decade in prison for cases lacking physical evidence and only an 80% chance of guilt. The only way to ensure that safeguards such as Batson, The Sixth Amendment, and The Fourteenth Amendment are upheld is to consistently make these challenges in trial. The only way to ensure these safeguards is to consistently stand up to blatant discrimination during trial.
Need for Experienced Counsel
It is certainly possible to survive bias, but to do so the accused must have experienced counsel. Likewise, trained counsel can help mitigate the results of wrong-doing, whether that involves compliance with regulations or restitution. There are also common-sense steps you can take to avoid accusations in the first place. If you are faced with allegations, trained defense counsel will help you. As always, our first consultation is free. Do not hesitate to contact me at 303-534-1958 or email me at [email protected].
*This article is part one of a two-part series reviewing the recently decided Colorado case, The People v. Howard-Walker.
Batson v. Kentucky, 476 U.S. 79, 80 (1986).