Amicus Curiae Brief — Reginald Keith Clark, Petitioner v. Colorado

NO. 24-774

In the

Supreme Court of the United States

REGINALD KEITH CLARK,

Petitioner,

v.

COLORADO,

Respondent.

__________________________

On Petition for a Writ of Certiorari

to the Supreme Court of Colorado

BRIEF OF AMICI CURIAE

COLORADO HISPANIC BAR ASSOCIATION,

ASIAN PACIFIC AMERICAN BAR ASSOCIATION,

SOUTH ASIAN BAR ASSOCIATION OF COLORADO,

AND SAM CARY BAR ASSOCIATION

IN SUPPORT OF PETITIONER

Kendra N. Beckwith

Counsel of Record

Kenneth F. Rossman, IV

WOMBLE BOND DICKINSON (US) LLP

1601 19th Street, Suite 1000

Denver, CO 80202

(303) 623-9000

kendra.beckwith@wbd-us.com

February 20, 2025

SUPREME COURT PRESS

Counsel for Amici Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT ............................................................... 5

I.

The Colorado Supreme Court’s OutcomeDriven Approach to Curing Racial Bias

Improperly Places the Onus on Defendants

to Fulfill Batson’s Promise ............................... 5

II. A Racially Biased Juror Is a Toxin in the

Judicial System That Cannot Be Rehabilitated... 10

III. Forcing a Defendant to Use a Peremptory

Challenge Merely to Secure an Impartial

Jury Threatens the Democratic Principles on

Which America’s Judicial System Is Built .... 15

IV. Colorado’s History of Racial Bias

Demonstrates the Importance of This Issue .. 20

CONCLUSION.......................................................... 23

ii

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Batson v. Kentucky,

476 U.S. 79 (1989) ...... 2, 5, 6, 7, 12, 16, 18, 19, 21

Duncan v. State of Louisiana,

391 U.S. 145 (1968) ........................................... 16

Georgia v. McCollum,

505 U.S. 42 (1992) .................................. 3, 7, 8, 17

Gray v. Mississippi,

481 U.S. 648 (1987) ............................................... 8

Ham v. South Carolina,

409 U.S. 524 (1973) ......................................... 17

Mattaranz v. State,

133 So.3d 473 (Fla. 2013) .................................... 14

O’Dell v. Miller,

565 S.E.2d 407 (W. Va. 2002) ............................. 12

Peña-Rodriguez v. Colorado,

580 U.S. 206 (2017) .................... 16, 17, 18, 22, 23

People v. Clark,

512 P.3d 1074 (Colo. App. 2022) ..... 7, 8, 9, 10, 23

People v. Novotny,

320 P.3d 1194 (Colo. 2014) .................................... 7

Rosales-Lopez v. United States,

451 U.S. 182 (1981) ........................................... 17

United States v. Burr,

25 F. Cas. 49 (C.C.D. Va. 1807) ................... 11, 13

United States v. Martinez-Salazar,

528 U.S. 304 (2000) ............................................. 8

iii

TABLE OF AUTHORITIES – Continued

Page

United States v. Scott,

437 U.S. 82 (1978) ................................................ 9

United States v. Wood,

299 U.S. 123 (1936) ........................................... 14

Vigil v. People,

455 P.3d 332 (Colo. 2019) ...................................... 7

Walls v. Kim,

549 S.E.2d 797 (Ga. 2001) ............................... 13

CONSTITUTIONAL PROVISIONS

Colo. Const. art. 6, § 10............................................. 15

Colo. Const. art. II, § 16 .............................................. 8

Colo. Const. art. II, § 25 .............................................. 8

U.S. Const. amend. V .................................................. 8

U.S. Const. amend. VI .............. 3, 4, 5, 8, 9, 16, 19, 22

U.S. Const. amend. XIV .................................. 3, 4, 8, 9

STATUTES

Colo. Rev. Stat. § 16-10-103(1)(b) ............................. 12

Colo. Rev. Stat. § 16-10-103(1)(j) .............................. 12

JUDICIAL RULES

Colo. R. Crim. P. 24(b)(II) ......................................... 12

Colo. R. Crim. P. 24(b)(X) ......................................... 12

Colo. R. Crim. P. 24(b)(XII)....................................... 12

Sup. Ct. R. 10(a) ........................................................ 10

iv

TABLE OF AUTHORITIES – Continued

Page

LEGISLATIVE MATERIALS

Col. Senate Bill 22-128 (2022) .................................. 21

OTHER AUTHORITIES

Albert W. Alschuler & Andrew G. Deiss,

A Brief History of Criminal Jury in the

United States, 61 U. CHI. L. REV. 867

(1994) ................................................................. 16

Alexander Hamilton,

THE FEDERALIST NO. 83 ..................................... 15

Alexis Hoag,

An Unbroken Thread: African American

Exclusion from Jury Service, Past and

Present, 81 LA. L. REV. 55 (2020) ...................... 20

Andrew Johnson,

Speech, Cong. Globe,

42d Cong., 2d Sess. 157 (1867) ......................... 20

Anna Roberts,

Casual Ostracism: Jury Exclusion on the

Basis of Criminal Convictions, 98 MINN.

L. REV. 592 (2013) ............................................. 20

Anne Bowen Poulin,

The Limits of Double Jeopardy: A Course

into the Dark? The Example:

Commonwealth v. Smith, 39 VILL. L. REV.

627 (1994) .......................................................... 10

Brian Willie et al.,

Chilling interactive map shows 1920s

Denver was rife with KKK members,

Rocky Mtn. PBS (Apr. 28, 2021) ....................... 21

v

TABLE OF AUTHORITIES – Continued

Page

Christopher A. Cosper,

Rehabilitation of the Juror Rehabilitation

Doctrine, 37 GA. L. REV. 1471 (2003) ................ 13

David Yokum, Christopher T. Robertson &

Matt Palmer, The Inability to SelfDiagnose Bias, 96 DENVER L. REV. 869

(2019) ................................................................. 11

Duane A. Smith,

THE BIRTH OF COLORADO

(U. Okla. Press 1989) ........................................ 20

Ellis & Shari Seidman Diamond,

Race, Diversity, and Jury Composition:

Battering and Bolstering Legitimacy, 78

CHI. KENT L. REV. 1033 (2003) .......................... 18

Emily Pronin, Daniel Y. Lin & Lee Ross,

The Bias Blind Spot: Perceptions of Bias

in Self Versus Others, 28 PERSONALITY

AND SOC. PSYCH. BULL., 369 (Mar. 2022) .......... 15

Eugene H. Berwanger,

RISE OF THE CENTENNIAL STATE 113 (2007)...... 21

Geoffrey Hunt,

The Civil War in Colorado, COLORADO

ENCYCLOPEDIA (October 26, 2022) .................... 22

Hon. Bruce M. Selye,

The Confidence Game: Public Perceptions

of the Judiciary, 30 NEW ENG. L. REV. 909

(1996) ................................................................. 18

Irving W. Stanton,

SIXTY YEARS IN COLORADO 160 (1922) .............. 21

vi

TABLE OF AUTHORITIES – Continued

Page

James Forman, Jr.,

Juries and Race in the Nineteenth

Century, 113 YALE L.J. 895 (2004).............. 15, 16

Jessica M. Salerno et al.,

The Impact of Minimal Versus Extended

Voir Dire and Judicial Rehabilitation on

Mock Jurors’ Decisions in Civil Cases, 45

LAW & HUM. BEHAV. 336 (2021) .................. 11, 14

Kathleen Hall Jamieson & Michael Hennessy,

Public Understanding of and Support for

the Courts: Survey Results, 95 GEO. L.J.

899 (2007) .......................................................... 17

Matthew Levendusky et al.,

Has the Supreme Court Become Just

Another Political Branch? Public

Perceptions of Court Legitimacy and

Approval in a Post-Dobbs World, 10 SCI.

ADVANCES 1 (2024) ............................................ 18

Michael J. Klarman,

Mistrials Arising from Prosecutorial

Error: Double Jeopardy Protection, 34

STAN. L. REV. 1061 (1982) ................................. 10

Neal Bush,

The Case for Expansive Voir Dire,

2 LAW & PSYCHOL. REV. 9 (1976) ....................... 13

Patricia D. Devine et al.,

Long-Term Reduction in Implicit Race

Bias: A Prejudice Habit-Breaking

Intervention, 48 J. EXPER. SOC. PSYCHOL.

1267 (2012) ........................................................ 11

vii

TABLE OF AUTHORITIES – Continued

Page

Ralph Gregory Elliot,

Public Trust Is A Fragile Bond,

77 CONN. B.J. 41 (2003) ..................................... 18

Richard Delgado & Jean Stefancic,

Home-Grown Racism: Colorado’s Historic

Embrace—And Denial—of Equal

Opportunity in Higher Education,

70 U. COLO. L. REV. 703 (1999) ................... 21, 22

Richard Gabriel, John G. McCabe & Rebecca

C. Ying, Redefining Bias in Criminal

Justice, 36-SUM CRIM. JUST. 18 (2021) ............ 11

Shawn Patterson Jr. et al.,

The Withering of Public Confidence in the

Courts, 108 JUDICATURE 23 (2024) ................... 18

Thomas Ward Frampton,

For Cause: Rethinking Racial Exclusion

and the American Jury,

118 MICH. L. REV. 785 (2020) ................ 15, 18, 19

William T. Pizzi & Morris B. Hoffman,

Jury Selection Errors on Appeal,

38 AM. CRIM. L. REV. 1391 (2001) ..................... 19

1

INTEREST OF THE AMICI CURIAE1

The COLORADO HISPANIC BAR ASSOCIATION serves

Colorado and promotes justice by advancing Hispanic

interests and issues in the legal profession and seeking

equal protection for the Hispanic community before the

law.

The ASIAN PACIFIC AMERICAN BAR ASSOCIATION

represents the interests of the Asian Pacific American

community, speaks on behalf of, and advocates for

that community’s interest, and provides a vehicle for

unified expression of opinions and positions by the

organization’s members upon current social and legal

matters or events of concern to its members.

The SOUTH ASIAN BAR ASSOCIATION OF COLORADO

serves Coloradans and promotes equity by advancing

South Asian interests—alongside the interests of other

minority voices—through substantive programming,

community outreach, diverse allyship, and advocacy.

It has a vested interest in ensuring that all Coloradans,

diverse or otherwise, are treated equally under the law.

The SAM CARY BAR ASSOCIATION promotes the

administration of justice; to promote the well-being of

the Black community; to secure proper legislation; and

to promote professionalism, fellowship, and harmony

within the Black legal profession in Colorado and

beyond.

1 No counsel for a party authored this amici brief in whole or in

part, and no person other than Amici, their members, or their

counsel made a monetary contribution to fund the production of

the brief. All parties received timely notice of this filing.

2

Collectively, these organizations seek to end racial

prejudice in Colorado’s judicial system and are aligned

with the goals of their national counterparts to do the

same. The Colorado Supreme Court’s split decision in

Clark v. People, 553 P.3d 215 (Colo. 2024), threatens

this commitment and places an already fragile system

at peril. It leaves the promise in Batson v. Kentucky,

476 U.S. 79 (1989), of an impartial jury pool unfulfilled

for persons of color in Colorado, excusing Colorado

courts from their obligation to protect against it.

SUMMARY OF THE ARGUMENT

Reginald Keith Clark was the only Black man in

the courtroom when he appeared on kidnapping and

sexual assault charges in a rural Colorado county

where Blacks comprise less than 2% of the county’s

population. During voir dire, a potential juror voluntarily shared in open court not only that he was racially

biased, but that his views were immutable. The district

court denied Mr. Clark’s challenge for cause because

the juror represented he could still hold the State to

its burden of proof and his racial bias was a mere

political belief he could set aside. Mr. Clark was then

forced to use one of his peremptory challenges simply

to secure the unbiased jury to which he was already

entitled, placing him at a disadvantage to the State

(which benefited from all its challenges). The Colorado

Supreme Court affirmed his conviction, concluding Mr.

Clark’s “choice to exercise a peremptory challenge” to

remove the racially biased juror made any error

harmless. Clark, 553 P.3d at 227.

3

This outcome is fundamentally at odds with the

tenets of fairness and due process on which this

country’s judicial system is built. Defendants of color

should not be forced to choose to secure what they are

already promised under the Constitution: “an impartial

jury that can view him without racial animus.” Georgia

v. McCollum, 505 U.S. 42, 58 (1992). Mr. Clark’s petition for a writ of certiorari should therefore be granted.

Amici provide further background, explaining why this

case warrants review for these reasons:

First, erroneously denying a for-cause challenge

to a racially biased prospective juror deprives a defendant of his Sixth and Fourteenth Amendment rights

to an impartial jury. This deprivation of a constitutional

right is structural error and should result in automatic

reversal. The Colorado Supreme Court’s decision to

instead force defendants to “choose” to either seat a

racist juror or use a peremptory challenge to remove

an impartial juror is unacceptable. Clark, 553 P.3d at

227. It allows Colorado’s courts to abdicate their

“constitutional responsibilities by delegating a public

function to private parties.” McCollum, 505 U.S. at 53.

Second, Clark assumes error in refusing to dismiss

Juror K for cause, addressing only whether the error

requires automatic reversal or a showing of harm.

This makes this case an ideal vehicle to address this

issue, as Mr. Clark demonstrates. Pet. 30. But it also

means trial courts may attempt to rehabilitate jurors

in misguided efforts to protect against racial bias.

Rehabilitation is impossible. Rather, recognition that

a defendant’s Sixth and Fourteenth Amendment rights

are violated when a racially biased juror is not stricken

for cause, resulting in structural error, should be the

only remedy available.

4

Third, foisting on to defendants of color the obligation to choose to secure the impartial jury promised

them under the Sixth and Fourteenth Amendment is

untenable. It taints the judiciary with tacit approval of

racial bias, creating a public perception that racial bias

is an individual’s obligation to correct, rather than an

institutional problem against which courts are to

guard.

Fourth, Colorado’s history of racial bias demonstrates the need for strict incentives to protect against

institutionalized racism. Absent a recognition that a

defendant’s right to an impartial jury is of a constitutional magnitude, protecting against racial bias in

Colorado’s judicial system will continue to prove

difficult, if not impossible.

5

ARGUMENT

The inseparable connection between liberty and

trial by jury is enshrined in the Sixth Amendment and

guaranteed by the Fourteenth Amendment’s promise of due process and equal protection under the law.

A defendant has the right to an impartial jury

selected through nondiscriminatory means without

losing his right to peremptory challenges. The Colorado

Supreme Court has abdicated its role to protect this

basic safeguard of American liberty in Colorado.

This abdication comes at great cost. It creates a

perverse incentive—to allow a biased jury to convict a

criminal defendant so the conviction may be reversed

and the defendant’s rights to both an impartial jury

and peremptory challenges restored. It places a cost on

jury impartiality—to be purchased with a peremptory

strike. And it does violence to the tenets of impartiality

and fairness on which the American judicial system is

built.

This Court should grant Mr. Clark’s petition.

I.

The Colorado Supreme Court’s OutcomeDriven Approach to Curing Racial Bias

Improperly Places the Onus on Defendants to

Fulfill Batson’s Promise.

1. Gilpin County is a rural Colorado county in

which 90% of the population is white. Mr. Clark was the

only Black man in the courtroom. During jury selection,

Mr. Clark’s counsel addressed this head-on with prospective jurors, asking if anyone had stereotypes about

Black men, acknowledging that these types of conver-

6

sations can be awkward and uncomfortable to have in

front of everyone. One juror commented if she were in

Mr. Clark’s position, she might “doubt the fairness of the

trial and ‘would like to see a little more diversity.’”

Clark, 553 P.3d at 221.

Juror K shared no such lament. Instead, he

volunteered, unprompted—to counsel, the court, and

all prospective jurors in the courtroom—that he had

moved to Gilpin County because he “didn’t want

diversity.” Id. “I hear the things, that diversity makes

us stronger and things like that. I don’t quite believe

it in life from what my personal experiences are.” Id.

Juror K then confirmed the firmness of his belief:

“And I can’t change that. I can look and judge what is

being said by [the defense] side and be fair, but I can’t

change that—when I walked in here seeing a black

gentleman here.” Id. at 221-22 (emphases added).

Mr. Clark’s counsel challenged Juror K for cause

because Juror K’s statements demonstrated actual

racial bias. Id. at 222. The trial court further questioned

Juror K in open court. Id. The court asked whether

Juror K would be capable of finding Mr. Clark not

guilty if “the prosecution hasn’t proven its case” or

guilty if the “prosecutor has proven his case.” Id. Juror

K responded affirmatively to both questions. Id. Juror K

was never asked if he could set aside the belief he had

spontaneously shared.

The trial court denied Mr. Clark’s challenge, determining that Juror K’s opinion was only a “political

view” and that “a person can certainly have offensive

views and still apply the law.” Id. The court viewed

these “two things [as] really separate in [its] mind.” Id.

Mr. Clark was then forced to use his first peremptory

7

strike to remove Juror K. Mr. Clark then exhausted

his remaining peremptory strikes. Id.

2. Mr. Clark was convicted and subsequently

appealed, arguing he was entitled to a new trial because

the trial court’s erroneous denial of his for-cause challenge was reversible error. The appellate division’s

analysis fractured in three directions, ultimately with

the majority affirming the district court. See People v.

Clark, 512 P.3d 1074 (Colo. App. 2022).

3. The Colorado Supreme Court granted review

and, in a divided opinion, affirmed the appellate court’s

decision. The supreme court’s majority decision relied

on two Colorado Supreme Court cases, neither of which

involved a prospective juror who expressed racial bias—

People v. Novotny, 320 P.3d 1194 (Colo. 2014) (involving

denial of a for-cause challenge to an assistant attorney

general in the jury pool as a compensated employee

of a law enforcement agency), and Vigil v. People, 455

P.3d 332 (Colo. 2019) (involving denial of a for-cause

challenge in a burglary trial where the prospective juror

knew the victim’s family and might do work for the

victim’s father in the future). The majority concluded

that so long as Mr. Clark received his statutorily

allowed number of peremptory challenges and Juror

K did not sit on the jury, error (if any) in denying the

challenge for cause was harmless “absent bad faith”

by the trial court. Clark, 553 P.3d at 220, 226-27 (citing

McCollum, 505 U.S. at 58). Had the trial court erroneously denied the for-cause challenge and Juror K

remained on the jury, only then would his constitutional

right to an impartial jury have been violated,

warranting a new trial. Id. at 224-26.

The dissent, characterizing the case as “difficult

and troubling,” disagreed. Id. at 233 (Hood, J., dis-

8

senting). “The district court’s error in excusing overt, incourt racism as nothing more than legitimate

political opinion, produced at least two harms.” Id. The

first, the “risk that some remaining venire members

were emboldened to act on similar but unvoiced biases,”

and the second, “the whole unseemly exercise leaves

our system of criminal justice diminished in the eyes

of the public.” Id. “[F]idelity to precedent doesn’t leave

us powerless to address” these harms, the dissent

articulated. Id. These harms resulted in structural

error, the dissent held, and should have entitled Mr.

Clark to a new trial. Id. at 236.

4. The outcome of Clark is disturbing. Even the

State agrees the trial court’s denial of Mr. Clark’s forcause challenge was error. Id. at 224. Yet, faced with

the indisputable reality that an immutably racist juror

was not removed for cause, the majority still finds

these circumstances harmless. Id. at 226-27. It does

so by giving itself comfort that, in this case, the error

ultimately “did not result in a biased juror participating in [Mr.] Clark’s trial” because Mr. Clark chose to

remove him. Id. at 227 (further observing there was no

“otherwise deliberate” error or bad faith).

This is cold comfort to Mr. Clark. And it provides

little comfort to Amici. The right to an impartial jury

is well established. United States v. Martinez-Salazar,

528 U.S. 304, 316 (2000). It is a key element of a

defendant’s federal and state constitutional right to a

fair trial. See U.S. Const. amends. V, VI, XIV; Colo.

Const. art. II, §§ 16, 25. It is of the character of rights

that are “so basic to a fair trial that their infraction

can never be treated as harmless,” Gray v. Mississippi,

481 U.S. 648, 668 (1987); see also Martinez-Salazar,

9

528 U.S. at 316 (seating of biased juror results in

structural error).

The Colorado Supreme Court now deems otherwise, choosing to pass the responsibility to defendants

of color to secure their own impartial jury. It does so on

a reading of this Court’s precedent that the deprivation

of peremptory challenges is “not of federal constitutional dimension.” Clark, 553 P.3d at 226. Mr. Clark

argues, with force, this is incorrect. The Sixth and

Fourteenth Amendment rights to an impartial jury

should not attach only where a defendant elects not to

use a peremptory challenge to remove a racially

biased juror. The use of a peremptory challenge to

ensure these rights are protected should also rise to

the level of structural error and automatic reversal

should follow. Pet. 29-30. Absent this Court’s review,

defendants of color must allow the racially biased

juror to actually serve for these rights to attach and

reversal to follow.

The practical realities of these situations make it

highly unlikely defendants of color will be willing to

risk a second trial to vindicate their Sixth and Fourteenth Amendment rights. The emotional and financial

cost alone of doing so is unimaginable, to say nothing

of the drain on judicial resources. It also places these

defendants at a distinct disadvantage at the second

trial—memories will fade, witness may disappear,

and evidence will go stale. See, e.g., United States v.

Scott, 437 U.S. 82, 105, 105 n.4 (Brennan, J., dissenting) (describing the “agony and risks attendant upon

undergoing more than one criminal trial for any single

offense” and observing that a retrial “enhances the

risk” that a criminal defendant will be found guilty);

see also Michael J. Klarman, Mistrials Arising from

10

Prosecutorial Error: Double Jeopardy Protection, 34

STAN. L. REV. 1061, 1064 n.16 (1982) (describing disadvantages of retrials to criminal defendants); cf.

Anne Bowen Poulin, The Limits of Double Jeopardy:

A Course into the Dark? The Example: Commonwealth

v. Smith, 39 VILL. L. REV. 627, 650 (1994) (noting a defendant’s “strong interest in avoiding the stress, expense

and anxiety of the second trial”). These realities also

mean defendants of color will consistently approach

jury selection already one step behind the State,

which will effectively benefit from more peremptory

challenges than the defendant to shape the jury.

It is untenable to Amici to place defendants of

color in this situation simply to realize their constitutional promise of an impartial jury. This inflicts the

very harm about which the dissent expressed concern.

Indeed, observing, as the prospective jurors did here, a

trial court condone service of a racially biased juror

who repeatedly confirmed he could not change his

views emboldens other jurors to serve despite similarly

toxic biases. And it imputes to the judicial system tacit

acceptance of these views.

This is unacceptable and presents compelling

reasons to grant Mr. Clark’s petition. Sup. Ct. R. 10(a).

II. A Racially Biased Juror Is a Toxin in the

Judicial System That Cannot Be Rehabilitated.

As an unintended consequence of Clark, trial

courts and counsel may still attempt to rehabilitate a

racially biased juror in a good faith effort to address

racial bias. Any approach other than striking a racially

biased prospective juror for cause is ineffective.

1. Jurors—like most people—struggle to identify

their biases. See, e.g., David Yokum, Christopher T.

11

Robertson & Matt Palmer, The Inability to SelfDiagnose Bias, 96 DENVER L. REV. 869, 913 (2019).

Even assuming jurors could accurately and reliably

identify their biases, it is a fallacy to assume that jurors

can then set them aside. Richard Gabriel, John G.

McCabe & Rebecca C. Ying, Redefining Bias in

Criminal Justice, 36-SUM CRIM. JUST. 18, 18-23

(2021). Most jurors will say they can set them aside. But

there is no way of knowing this is true. See Patricia D.

Devine et al., Long-Term Reduction in Implicit Race

Bias: A Prejudice Habit-Breaking Intervention, 48 J.

EXPER. SOC. PSYCHOL. 1267, 1268 (2012) (overcoming

biases requires “the application of considerable goaldirected effort over time”); see also Jessica M. Salerno

et al., The Impact of Minimal Versus Extended Voir

Dire and Judicial Rehabilitation on Mock Jurors’

Decisions in Civil Cases, 45 LAW & HUM. BEHAV. 336,

336 (2021), discussed infra.

A juror’s self-assessed ability to set aside bias

cannot and should not be the basis upon which a trial

court refuses to dismiss a juror for cause. And where,

as here, a juror expressly proclaims that he cannot

and will not set aside his racial views, the exercise is

futile. The preservation of the judicial institution, and

this country’s repeated promise of racial equity,

demands that the trial court act to remove this toxin

for cause.

As Chief Justice Marshall articulated over two

centuries ago, a juror’s biases constitute a just challenge

for cause because “the individual who is under their

influence is presumed to have a bias on [h]is mind

which will prevent an impartial decision of the case,

according to the testimony.” United States v. Burr, 25

F. Cas. 49, 50 (C.C.D. Va. 1807). “He may declare that

12

notwithstanding these prejudices he is determined to

listen to the evidence, and be governed by it; but the

law will not trust him.” Id. (emphasis added). The trust

the trial court placed in Juror K to fairly judge Mr.

Clark despite his immutable racial bias was misplaced.

Colorado law compels trial courts to sustain challenges for cause on the mere appearance or assumption

of certain biases—including employment with a

public law enforcement agency or public defender’s

office, or relationship to a party. Colo. R. Crim. P.

24(b)(II),(XII); Colo. Rev. Stat. § 16-10-103(1)(b),(j).

Jurors who have explicitly stated they are affirmatively

racially biased—unapologetically and irreversibly so, no

less—presents a far greater danger to Batson’s promise

than presumed biases resulting from employment or

personal friendships. It is irrational to assume these

jurors can be rehabilitated to set this bias aside.

Put differently, a court should never be “satisfied”

that a racially biased juror “will render an impartial

verdict based solely upon the evidence and the instructions of the court,” see Colo. R. Crim. P. 24(b)(X),

because a solidified racial bias can never be set aside.

Trial judges should not attempt to “rehabilitate” prospective jurors with expressed racial animus with

questions designed to elicit a response that the juror

promises to be fair and impartial, when all of the facts

and circumstances demonstrate the contrary. Trial

judges “must resist the temptation to ‘rehabilitate’

prospective jurors simply by asking the ‘magic question,’” i.e., “can you set aside your preconceptions and

decide this case solely on the evidence and the law.”

O’Dell v. Miller, 565 S.E.2d 407, 412, 412 n.1 (W. Va.

2002). This is because “[n]ot so remarkably, jurors

confronted with this question from the bench almost

13

inevitably say ‘yes,’” Walls v. Kim, 549 S.E.2d 797, 799

(Ga. 2001). “Two major concerns arise in the rehabilitation of a juror who has already admitted to a prejudice against one of the parties.” Christopher A.

Cosper, Rehabilitation of the Juror Rehabilitation

Doctrine, 37 GA. L. REV. 1471, 1497 (2003).

First, the juror “recants his prejudice for a reason

other than the true ability to judge the case fairly.” Id.

Often, this can happen because potential jurors

simply do not want to upset the judge. See id. at 1498.

This pressure is amplified when a judge pressures a

juror by interrupting an attorney’s voir dire, in open

court, to try and rehabilitate them. See id. “The juror’s

ultimate response may be viewed as an effective

rehabilitation when actually the juror was merely

intimidated by the circumstances.” Id.; see Neal Bush,

The Case for Expansive Voir Dire, 2 LAW & PSYCHOL.

REV. 9, 17 (1976) (noting that potential jurors view

judges as authority figures and usually offer responses

to please the judge, instead of focusing on

truthfulness). Other times, a juror may change his

position to avoid a negative perception from the

strangers in the courtroom.

“Second, even if the juror honestly believes he can

decide the case from the evidence, the effects of bias

may still play a part in his decision making.” Cosper,

37 GA. L. REV. at 1497. A juror’s racist beliefs are the

lens through which the juror will view the evidence

presented and will inhibit their ability to be fair and

impartial. See Burr, 25 F. Cas. at 50 (a biased juror will

“listen with more favor to that testimony which

confirms, than to that which would change his

opinion; it is not to be expected that he will weigh evidence or argument as fairly as a man whose judgment

14

is not made up in the case”). Those beliefs will

permeate into the deliberation process. A juror bold

enough to openly admit his racial prejudices at the

beginning of a trial, in front of a room full of strangers

and to attorneys he has never met, will have no

reservations with expressing them to his fellow jury

members in the privacy of the deliberation room.

“Impartiality is not a technical conception. It is a

state of mind.” United States v. Wood, 299 U.S. 123,

145 (1936). It is a “preposterous conclusion that the

human capacity for rational reflection is but a light

switch that can be flipped on or off, and a trial court

may thereby procure a juror who mere minutes

before expressed unacceptable bias and partiality, is

suddenly objective and neutral[.]” Mattaranz v. State,

133 So. 3d 473, 488 (Fla. 2013) (internal alterations and

citations omitted).

It is therefore impossible to rehabilitate a juror

with explicitly expressed racial animus. A recent

research study underscores this concern. See Salerno

et al., 45 LAW & HUM. BEHAV. at 336. When study

participants acting as prospective jurors were asked

by a judge (via a short video) if they could set aside

their biases, nearly all said they would. Id. at 339, 351.

After judicial rehabilitation, many of them reported that

they believed that their biases had “no impact at all”

or a “tiny impact” on their judgments. Id. at 351.

“[T]he rehabilitation procedure seems to have given

mock jurors a false sense of security that their judgments would no longer be biased by their preexisting

attitudes. Judicial rehabilitation might have increased

mock jurors’ ‘bias blindspot.’” Id. (citing Emily Pronin,

Daniel Y. Lin & Lee Ross, The Bias Blind Spot:

Perceptions of Bias in Self Versus Others, 28

15

PERSONALITY AND SOC. PSYCH. BULL., 369, 370).

Notably, the topic of the Salerno study covered only

common biases in civil cases and did not deal with

racial biases. Id. at 342-43. Given racial biases are

among the most pernicious in society, it makes sense

that racial biases would be even more difficult, if not

impossible, for a judge to rehabilitate.

2. Moreover, under the Colorado Constitution, a

trial court judge must reside in the county in which the

judge serves. Colo. Const. Art. 6, § 10. This requirement

inherently increases the risk that, particularly in

more racially homogenous counties such as Gilpin, the

judge is likely to be a part of the racial majority in that

county and may be less inclined to view racial bias as

a particular issue or worse, share in racially biased

views. See Thomas Ward Frampton, For Cause:

Rethinking Racial Exclusion and the American Jury,

118 MICH. L. REV. 785, 832 (2020) (describing research

studies on judicial rehabilitation and describing how

judges’ rulings on challenges for cause might be

“skewed” by judges’ own “class, race, sex, and status

biases”).

III. Forcing a Defendant to Use a Peremptory

Challenge Merely to Secure an Impartial

Jury Threatens the Democratic Principles on

Which America’s Judicial System Is Built.

1. Criminal trial by jury is a bulwark of American

democracy. James Forman, Jr., Juries and Race in the

Nineteenth Century, 113 YALE L.J. 895, 909 (2004). A

criminal defendant’s right to be tried by an unbiased

jury is a “barrier to the tyranny of popular magistrates

in a popular government.” THE FEDERALIST NO. 83, at

451 (Alexander Hamilton).

16

America’s trust in the jury system can be traced

back to the nation’s origin. See Albert W. Alschuler &

Andrew G. Deiss, A Brief History of Criminal Jury in

the United States, 61 U. CHI. L. REV. 867, 871 (1994).

With the Sixth Amendment’s guarantee of community

participation in determining criminal culpability, “[f]ear

of unchecked power, so typical of our State and Federal

Governments in other respects, found expression.”

Duncan v. State of Louisiana, 391 U.S. 145, 156 (1968).

The jury’s role as a sentinel of freedom only crystalized

in the centuries that followed.

In the antebellum era, the right to jury trial was

significant to abolitionists seeking to check the power

of the federal government over enslaved persons.

Forman, 113 YALE L.J. at 909. Abolitionists believed

that “jurors would understand that the law of God

opposed slavery, even if the federal government did

not.” Id.

The jury is at the center of our democracy, “a

tangible implementation of the principle that the law

comes from the people.” Peña-Rodriguez v. Colorado,

580 U.S. 206, 210 (2017). It is a venerable and evolving

institution that this Court has a responsibility to protect.

But for a jury to operate as the safeguard it was

intended to be, it must be unbiased. Batson, 476 U.S.

at 86. Particularly important is the absence of racial

bias, which “implicates unique historical, constitutional,

and institutional concerns.” Peña-Rodriguez, 580 U.S.

at 224. It is “a familiar and recurring evil that, if left

unaddressed, would risk systemic injury to the administration of justice.” Id. (emphasis added).

17

“[A] defendant has the right to an impartial jury

that can view him without racial animus, which so

long has distorted our system of criminal justice.”

McCollum, 505 U.S. at 58. A defendant therefore has

a right to explore the potential racial bias of their jury.

See Ham v. South Carolina, 409 U.S. 524, 527 (1973).

True, peremptory challenges provide an important

mechanism to act on any racial bias uncovered during

that exploration. McCollum, 505 U.S. at 59. A defendant could form an impression as to the racial bias of a

prospective juror bereft of specifics. But a defendant

should not need to exercise a peremptory challenge if

a juror’s racial bias is explicit and unapologetic, plain

for the court to see. Cf. Peña-Rodriguez, 580 U.S. at

225. These circumstances instead implicate a trial

court’s for-cause dismissal. Rosales-Lopez v. United

States, 451 U.S. 182, 193 (1981).

Racial bias in the judicial system threatens the

integrity of this institution. Racial bias is a unique

threat, distinguishable from other types of bias both in

its severity and institutionalized history. Respectfully,

the trial court’s open acceptance of the fact of immutable racial bias in rejecting Mr. Clark’s for-cause

challenge is necessarily prejudicial and reversible without more. Amici ask that this Court clarify and confirm

that the law does not permit otherwise.

2. Public trust in the judiciary is unraveling:

“[M]any . . . believe that the nation’s courts favor the

wealthy and politically connected, that judges are

motivated by political and personal biases, and that

they are influenced by campaign fundraising.” Kathleen

Hall Jamieson & Michael Hennessy, Public

Understanding of and Support for the Courts: Survey

Results, 95 GEO. L.J. 899, 899 (2007); see Hon. Bruce

18

M. Selye, The Confidence Game: Public Perceptions of

the Judiciary, 30 NEW ENG. L. REV. 909, 911 (1996);

Shawn Patterson Jr. et al., The Withering of Public

Confidence in the Courts, 108 JUDICATURE 23, 27

(2024); Matthew Levendusky et al., Has the Supreme

Court Become Just Another Political Branch? Public

Perceptions of Court Legitimacy and Approval in a

Post-Dobbs World, 10 SCI. ADVANCES 1, 10 (2024). This

is more so now than perhaps ever before within

modern memory. Creating a system in which the

gatekeepers are alleviated from responsibility to protect constitutional rights deepens and furthers this

crisis.

3. Jury verdicts are not immune from this crisis

in perception: racial bias in the administration of

criminal justice presents a singular challenge to

preserving it. Such bias systemically undermines

public confidence in jury verdicts. See Peña-Rodriguez,

350 P.3d at 224. As Frampton states, “we know from

decades of scholarship that unrepresentative juries

‘threaten the public’s faith in the . . . legal system and

its outcomes.’” Frampton, 118 MICH. L. REV. at 834

(quoting Leslie Ellis & Shari Seidman Diamond, Race,

Diversity, and Jury Composition: Battering and Bolstering Legitimacy, 78 CHI. KENT L. REV. 1033, 1038

(2003)).

In Batson, this Court attempted to combat this.

476 U.S. at 99. Batson remains a bastion against public

mistrust, assuring that a jury reaches its verdict “with

impartiality, without prejudice, and in good faith.”

Ralph Gregory Elliot, Public Trust Is A Fragile Bond,

77 CONN. B.J. 41, 43 (2003); cf. Peña-Rodriguez, 350

P.3d at 294 (arguing that prohibiting defendants from

introducing specific evidence of racial bias affecting

19

their verdict detrimentally impacts public confidence

in Colorado’s jury trial system).

Batson’s promise is illusory if the system fails to

ensure that defendants of color may vindicate it. And,

in Colorado, such defendants are already more likely

to be referred to the state for potential criminal

charges than their white counterparts. These defendants are also more likely to be convicted by an all-white

jury. Forman, 113 YALE L.J. at 909; Peter A. Joy, Race

Matters in Jury Selection, 109 NW. U. L. REV. ONLINE

180, 182 (2015). Studies have shown that the presence

of even “one African-American . . . in the jury pool”

eliminates this injustice. Id. at 182. It logically follows

that one racially biased juror can equally impact the

verdict to the detriment of defendants of color.

It is offensive to basic principles of fairness and

justice to adopt a system that forces a defendant to use

a peremptory challenge to remove a juror who proclaims—in open court—both his racial bias and that it

cannot be changed. Frampton describes how this

effectively “invit[es] defense lawyers . . . to intentionally infect the jury with a biased juror” rather than

using a peremptory challenge, so the defendant might

then make a Sixth Amendment challenge on appeal.

Frampton, 118 MICH. L. REV. at 819 (quoting William

T. Pizzi & Morris B. Hoffman, Jury Selection Errors

on Appeal, 38 AM. CRIM. L. REV. 1391, 1398 (2001)).

Encouraging this immense inefficiency and waste in

judicial resources, as well as the outward perception

that no one will act to remove a racially biased juror

despite their known presence, is a meaningless substitute for Batson’s promise. The message this sends

about racism in the judicial system, its perpetuation,

20

and who owns the responsibility to protect against it,

is untenable.

IV. Colorado’s History of Racial Bias Demonstrates the Importance of This Issue.

Colorado is still recovering from a history of racial

biases. This makes the need for this Court’s exercise

of its supervisory power more compelling.

1. Colorado’s early political leadership recognized the right of every citizen to sit on a jury,

regardless of race. Cong. Globe, 42d Cong., 2d Sess.

157 (1867) (speech from President Andrew Johnson

explaining he would grant Colorado statehood, in part,

because the governor had vetoed bill prohibiting Black

persons from sitting on juries). Coloradans have long

understood the important role an unbiased jury plays

in protecting their freedom. See Duane A. Smith, THE

B IRTH OF COLORADO 124-25 (1989) (discussing

Coloradans’ demand for a grand jury process to obtain

indictment).

Colorado continues to demonstrate this long-established commitment. Colorado was ahead of the curve

in protecting the right for individuals with criminal

convictions to sit on juries. Anna Roberts, Casual

Ostracism: Jury Exclusion on the Basis of Criminal

Convictions, 98 MINN. L. REV. 592, 595-99 (2013)

(noting Colorado and Maine as the only two out of

forty-eight surveyed states without policies excluding

jurors based on criminal convictions). This reform

positively impacted jurors who are persons of color.

Alexis Hoag, An Unbroken Thread: African American

Exclusion from Jury Service, Past and Present, 81 LA.

L. REV. 55, 73 (2020).

21

And last year, Colorado lawmakers introduced

legislation listing presumptively invalid reasons for

peremptory challenges linked to a juror’s race. Col.

Senate Bill 22-128 (2022). An introduction of this legislation illustrates Colorado lawmakers’ and constituents’

desire to address racial bias in courtrooms despite the

legislation’s current interruption.

2. Yet, robust enforcement of Batson is still needed

to ensure its promise is realized. Colorado—like every

other state—has struggled with the intersection of race,

criminal justice, and juries. Persons of color in Colorado

have long protested that they “were punished more

severely [by the criminal justice system] than Anglo

offenders.” Eugene H. Berwanger, RISE OF THE

CENTENNIAL STATE 113 (2007). The disparity was

particularly stark during the antebellum period, when

people of color accused of crimes were “tried” by ad hoc

“People’s Courts”—which meted out sentences via

gallows—rather than the nascent criminal courts established by the territory’s legislature. Id. at 103; Irving

W. Stanton, SIXTY YEARS IN COLORADO 160 (1922).

By the 1920s, Colorado boasted one of the largest

Klan organizations in the United States. Richard

Delgado & Jean Stefancic, Home-Grown Racism:

Colorado’s Historic Embrace—And Denial—of Equal

Opportunity in Higher Education, 70 U. COLO. L. REV.

703, 726-35 (1999) (discussing historical reputation

of Colorado and describing historical exclusion of

minority members); see Brian Willie et al., Rocky Mtn.

PBS, Chilling interactive map shows 1920s Denver

was rife with KKK members (Apr. 28, 2021). The Klan

had a direct effect on defendants of color’s right to

impartial juries. Its supporters attacked the institution,

tampering with juries to “clean up” Colorado by incar-

22

cerating and forcibly removing people of color. Delgado,

supra at 726-35; see Geoffrey Hunt, The Civil War in

Colorado, COLORADO ENCYCLOPEDIA (October 26, 2022)

(recognizing several Colorado towns as “‘Sundown

towns’—places where Black people were not welcome

and would be run out of town at sundown”).

This period “left a lasting legacy” in certain areas

of Colorado, where racial animus hardened. Delgado,

supra at 773. In the decades that followed, Colorado

courts continued to find a pattern of systematic exclusion of persons of color from Colorado’s jury rolls. Id.

at 772, n.463.

3. In 2017, Colorado’s complicated relationship

with race and jury rolls was on display in PeñaRodriguez. A jury found Peña-Rodriguez guilty of

sexually assaulting two teenage girls. Peña-Rodriguez,

580 U.S. at 211. Affidavits offered by two jurors postverdict revealed that Peña-Rodriguez’s race and ethnicity—Latino/Hispanic—was explicitly considered and

weighed heavily in the jury’s calculus. Id. at 212.

Jurors also called Peña-Rodriguez’s credibility into

question based on his immigration status. Id. at 213.

The Colorado Supreme Court affirmed PeñaRodriguez’s conviction over a vigorous dissent raising

many of the same points above. Peña-Rodriguez, 350

P.3d at 294 (Márquez, J., dissenting). This Court

reversed, holding that, faced with a “clear statement

that indicates [a juror] relied on racial stereotypes or

animus to convict a criminal defendant,” the Sixth

Amendment requires consideration of that evidence

and “any resulting denial of the jury trial guarantee.”

Peña-Rodriguez, 580 U.S. at 225.

23

Peña-Rodriguez and this case demonstrate that

Colorado still needs robust enforcement by this Court

of the right to an impartial jury. As it presently stands,

Clark sanctions that a juror’s racial animus is a

defendant’s, rather than an institutional, problem. This

undercuts the promises of Colorado’s early political

leadership and sullies the trust of Colorado’s contemporary citizens.

CONCLUSION

Amici respectfully urge this Court to grant Mr.

Clark’s petition for a writ of certiorari.

Respectfully submitted,

Kendra N. Beckwith

Counsel of Record

Kenneth F. Rossman, IV

WOMBLE BOND DICKINSON (US) LLP

1601 19th Street, Suite 1000

Denver, CO 80202

(303) 623-9000

kendra.beckwith@wbd-us.com

Counsel for Amici Curiae

February 20, 2025