Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Reginald Clark was convicted of aggravated kidnapping and sexual assault. In 2017, Clark offered to give a woman experiencing homelessness a ride to a Denver metro area location, but instead he drove her into the mountains, making several stops along the way to smoke meth and sexually assaulting the woman during one stop.
The woman, named in court documents as A.B., escaped the car and spoke to police officers who saw her walking along the side of the road. Clark was pulled over nearby and arrested after A.B. described her assault to officers.
After 17 hours of deliberation, a jury convicted Clark with second-degree kidnapping and sexual assault caused by the threat of imminent harm. He was sentenced to 18 years for the kidnapping charge and 12 years to life for sexual assault, with both sentences to run consecutively.
On appeal, Clark raised three challenges to his conviction.
First, he argued that the trial court abused its discretion by rejecting his challenge to remove an allegedly biased prospective juror.
During voir dire, Clark’s counsel asked potential jurors about the implications of Clark being the only Black person in the courtroom. One prospective juror, named in court documents as Juror K, volunteered comments that he moved to Gilpin County because he “didn’t want diversity” and he didn’t believe diversity was necessarily a good thing. At a bench trial, the presiding judge pressed the juror over if he would have any trouble rendering a guilty or not guilty verdict based on the prosecution’s evidence. Juror K responded “not at all” to both questions.”
Clark’s counsel challenged the prospective juror for cause, but, after an unrecorded bench hearing, the trial court denied the challenge. Later explaining the reasoning, the presiding judge said the comments were “a political view, I think. That doesn’t really answer the question of whether he can be a fair juror.” Still, Clark’s attorneys used a peremptory strike to remove Juror K.
The Colorado Court of Appeals looked at two prongs of this appeal argument. First, it examined if the trial court abused its discretion by denying the for-cause challenge. It then turned to if the later use of the peremptory strike to remove Juror K was a structural error that required reversal.
The majority of the Colorado Court of Appeals ruled the trial court did abuse its discretion in denying the challenge, however, the two judges were split on if the error required reversal.
Judge Terry Fox, authoring the majority opinion, wrote that while the prospective juror’s comments could theoretically be a political view, “the glaring implication persists: his acknowledged bias against nonwhite people like [the] defendant.” While Juror K had stated he could render a fair decision, he underlined that he couldn’t change his feelings about diversity, the majority reasoned. Even though the court asked him if he would apply the correct burden of proof, it didn’t directly ask if he could, or would, set aside his admitted bias. While the Colorado Court of Appeals gives deference to a trial court’s decisions to grant or deny challenges for cause, “that is not the case here,” the court found, ruling the case fell within Colorado’s challenge for cause statutes and ruling the trial court’s failure to grant the motion was an abuse of discretion.
While he concurred with the majority’s judgment, Judge John Dailey disagreed that the lower court abused its discretion in denying the for-cause challenge. Writing separately, Dailey found that while the juror’s comments had implications of racial bias, that didn’t compel the court to excuse him for cause. In the opinion footnotes, Dailey posed the questions “Does one’s failure to appreciate — or even one’s opposition to — ‘diversity’ necessarily imply an impermissible racial bias or prejudice? Should it? Can, for instance, people move not because of the color of their neighbor’s skin but because of the political views held by those neighbors? Would that necessarily evidence racial bias or prejudice towards their former neighbors?” He also disagreed that the trial court didn’t probe the juror far enough on if he could or would set aside bias in the trial. Juror K responding that he could return either verdict depending on the evidence presented “should’ve sufficed to uphold the trial court’s decision denying the challenge for cause,” wrote Dailey. “The court should not, in my view, be faulted for not inquiring in greater detail about a subject that the parties themselves addressed in only a ‘generalized’ manner,” he added in footnotes.
The majority was split on if the abuse of discretion warranted a conviction reversal. Clark argued that the Colorado Supreme Court’s 2014 decision in People v. Novotny, which rejected the idea that defendants are “forced” to use peremptory strikes when erroneously denied a for-cause challenge, shouldn’t apply to his case. He argued that the trial court’s decision was arbitrary or irrational, making it in bad faith and therefore subject to automatic reversal. The majority Fox and Dailey – disagreed with this interpretation, holding that a broad interpretation of bad faith went against the state Supreme Court’s intentions in Novotny and ruling that Clark didn’t provide any other persuasive arguments to adopt this view.
Secondly, Clark argued that having to use the peremptory strike deprived him of equal protection since he was forced to use it solely because of his race. He argued that in Novotny, the courts assumed the denial of a strike didn’t by nature implicate the constitution and instead rested on state law. Arguing that since the nature of the strike rested on his race, Clark added, the denial of the for cause challenge was a structural error that required reversal. Looking at the Colorado Supreme Court’s 2019 decision in Vigil v. People, the majority disagreed and ruled that Clark was not “forced” to remove Juror K, but instead chose to as allowed by peremptory challenges. The difference between being forced to exercise the strike and choosing to do so was decided under Vigil, the court ruled, and rejected his second argument.
In his partial dissent, Judge Timothy Schutz disagreed with the majority’s finding that the error didn’t require reversal. While he acknowledged that Novotny is broad, Schutz disagreed that Clark’s case should have been evaluated with an outcome-determinative standard. “Instead, I conclude the trial court’s tolerance of the continued presence of a racially biased juror constitutes structural error requiring reversal of the resulting conviction,” wrote Schutz.
He noted that at multiple points in the Novotny opinion, the Colorado Supreme Court acknowledged the outcome-based analysis it adopted shouldn’t and can’t apply to all scenarios. In Novotny, a court failed to excuse an assistant attorney general compensated by a law enforcement agency, and in Vigil a court failed to excuse a juror with personal and business relationships with the victim’s family. A key difference between Novotny and Vigil and Clark’s case, Schutz explained, was that the trial court allowed a juror who admitted racial bias against the defendant to keep participating in jury selection. By allowing this, he added, the court made a structural error that can’t be looked at through an outcome-determinative lens.
Schutz emphasized that state and federal courts have long held that bias during jury selection can create structural errors, implicate equal protection and create multifaceted constitutional concerns. Batson challenges, he added, which prevent peremptory strikes against jurors based solely on their race, have long reinforced that jury selection and trials can be unfair when equal protection laws aren’t upheld. Keeping a juror with self professed racial bias, Schutz wrote, “after that bias has been brought to the court’s attention through a challenge for cause also constitutes structural error.” Racial bias in jury selection, he added, raised three constitutional problems: deprivation of equal protection, depriving excluded jurors the right to not be discriminated against on the basis of race and eroding public confidence in the rule of law and jury trials.
Shutz concluded that by tolerating admitted racial bias in the jury selection process, the lower court violated Clark’s guarantee of equal protections. He added that he would have reversed the conviction and remanded the case to a new trial “free of racial bias.”
Note: the Colorado Court of Appeals on March 24 also published opinions in People v. Natalie Nicole Gulyas, Geoffrey K. Ricchio v. Colorado Securities Commissioner and Marjorie Mundell Hale v. Southeast Colorado Power Association.