Reginald Keith Clark, a Black man facing sexual assault and kidnapping charges, sought to dismiss a prospective juror who said during the selection process that he "didn't want diversity" and doesn't believe "diversity makes us stronger." A trial court judge rejected Clark's challenge for cause, reasoning that Juror K's comments reflected his political views and didn't indicate that he could not be fair.
In an opinion authored by Justice Monica M. Márquez, a five-justice majority said that while the trial court's decision was an abuse of discretion, it was a harmless error because the judge acted in good faith and Juror K didn't end up serving on the jury. The juror was sent home after Clark exercised a peremptory challenge.
"Here, Clark was permitted to use his statutorily allotted number of peremptory challenges. Juror K did not serve on the jury for Clark's trial, and Clark does not allege that any biased juror otherwise evaded removal," the majority said in finding that Clark's Sixth Amendment right to an impartial jury had not been violated.
Colorado case law also expressly rejects Clark's contention that the trial court wrongfully forced him to use up a peremptory strike to "cure" its error, according to the decision.
Justices were also unpersuaded by Clark's claim that the trial court violated the equal protection clause — which bars state actors from purposefully discriminating based on race — when it denied the challenge to Juror K and sent a message to other jurors that his views would be tolerated.
Nothing in the record supports that claim or suggests that the trial judge acted with purposefully discriminatory intent, Justice Márquez wrote. The for-cause challenge and the court's ruling also unfolded outside jurors' view, the majority said.
"Ultimately, the only events the jurors witnessed were Juror K's comments during voir dire and Juror K's subsequent dismissal. If there was any reasonable conclusion to draw about the permissibility of racial bias in the courtroom, it was that such expressions of bias result in dismissal, not that they are tolerated or welcomed," according to the majority opinion.
Justice William W. Hood III, meanwhile, criticized the majority opinion for denouncing racial discrimination but failing to remedy the trial court's excusing of "overt, in-court racism."
"Because I believe fidelity to precedent doesn't leave us powerless to address the harm inflicted here, I respectfully dissent," Justice Hood wrote in an opinion joined by Justice Richard L. Gabriel.
The trial court's failure to condemn Juror K's statements placed an "aura of legitimacy" around Juror K's racial bias, leaving the remaining members of the panel free to potentially "make judgments rooted in bias against the only '[B]lack gentleman' in the room," Justice Hood said.
"By failing to release Juror K after he expressed racial bias, the court tacitly allowed the remaining venire members to cling to similar prejudices while deciding Clark's fate," according to the dissent.
Jurors are also "sharper" than the majority assumes, Justice Hood said, noting the trial court explained to prospective panelists the distinction between peremptory and for-cause strikes. Jurors also watched the judge remove another person from the panel based on bias concerns and ask Juror K follow-up questions before confirming that he could serve on the jury, according to the dissent.
"Here, any bias Juror K introduced into the proceeding during voir dire lingered in the background of the entire trial," Justice Hood said, arguing that the denial of the for-cause challenge was a structural error requiring reversal of Clark's conviction.
Monday's decision came as the high court has been grappling with how to root out racism in jury selection when biases are often unspoken and implicit.
In an opinion for two separate cases in June, Justice Márquez said the existing legal test for determining whether a juror was wrongfully struck based on race bias is too flawed, suggesting instead that state lawmakers do away with peremptory strikes altogether. Justices Melissa Hart and Carlos A. Samour Jr. joined that concurrence.
Advocates have also lobbied the court to adopt a rule change that spells out "presumptively invalid" reasons to strike a juror using a peremptory challenge, such as if a juror expresses a distrust of law enforcement or is not a native English speaker. A similar proposal went before state lawmakers in 2022 but was withdrawn amid opposition from local prosecutors.
Clark leaned on the existing legal test for determining if a juror strike is discriminatory, set out in the U.S. Supreme Court's 1986 decision in Batson v. Kentucky
, to frame his arguments about race bias in the context of a jury trial.But the majority dismissed that comparison as inapt, noting that Batson focuses on the discriminatory use of peremptory challenges. Here, Clark's argument focuses on a challenge for cause based on a potential juror's views expressed during voir dire, which is an entirely different issue, Justice Márquez wrote.
"Because Clark's argument does not concern purposeful discrimination in the selection of jurors, his reliance on the Batson framework is misplaced," the majority said.
In a statement Monday, the ACLU of Colorado, which filed an amicus brief in the case, said it is "profoundly disappointed" by the majority's decision.
"While the majority opinion describes the trial court's refusal to exclude a racist potential juror as 'harmless,' there is nothing harmless about allowing racism to infect the jury selection process," said legal director Tim Macdonald. "The dissenting opinion correctly acknowledges that the decision is an affront to basic equal protection principles and does great harm to the public's perception of the justice system."
A spokesperson for the Colorado Attorney General's Office declined to comment. Counsel for Clark did not immediately respond to a request for comment Monday.
Clark is represented by Colorado State Public Defender Megan A. Ring and Casey Mark Klekas of that office.
The state is represented by Colorado Attorney General Philip A. Weiser and Patrick A. Withers of that office.
The case is Reginald Keith Clark v. The People of the State of Colorado, case number 22SC313, of the Colorado Supreme Court.
--Additional reporting by Andrew Strickler. Editing by Rich Mills.