SUMMARY

September 5, 2019

2019COA137

No. 15CA1517, People v. Ojeda — Constitutional Law —

Fourteenth Amendment — Equal Protection; Juries —

Peremptory Challenges — Batson Challenges

A division of the court of appeals considers whether a trial 

court erred in denying a defendant his Batson v. Kentucky, 476 U.S. 

79 (1986), challenge when a prosecutor removed a Hispanic juror 

from the prospective jury. 

The majority agrees that the trial judge cannot supply its own 

reasons to justify a juror’s removal and that reversal is appropriate,

albeit for different reasons. Judge Fox’s opinion discusses various 

approaches employed in examining race-based and race-neutral 

reasons for a Batson challenge and concludes that if a peremptory 

strike was motivated in substantial part by discriminatory intent, 

then the defendant has met his burden of showing purposeful

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
discrimination as articulated in the third Batson step. Judge 

Harris’ special concurrence concludes that reversal is required 

because the prosecution failed to state a race-neutral reason for the 

juror strike, as required by the second Batson step. Accordingly, 

the majority reverses the judgment and remands for a new trial. 

The dissent concludes that the case should be remanded to 

the trial court for it to conduct the three-step Batson analysis and

make the required factual findings as the trial court’s prior Batson

analysis failed to make sufficient factual findings about whether (1) 

Ojeda made a prima facie showing that the peremptory strike was 

based on race; (2) the prosecutor provided a race-neutral 

explanation; and (3) Ojeda established purposeful discrimination. 
COLORADO COURT OF APPEALS 2019COA137

Court of Appeals No. 15CA1517

City and County of Denver District Court No. 13CR4235

Honorable Kenneth M. Laff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ray Ojeda,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE FOX

Harris, J., specially concurs

Hawthorne, J., dissents

Announced September 5, 2019

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elizabeth Griffin, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant Ray Ojeda appeals the judgment of conviction 

entered on jury verdicts finding him guilty of various charges. He

contends that the trial court erred in denying his Batson v. 

Kentucky, 476 U.S. 79 (1986), challenge when the prosecutor

removed a Hispanic prospective juror from the venire. Based on the 

record before us, we agree that the court’s denial of Ojeda’s Batson

challenge was erroneous. Accordingly, we reverse the judgment of 

conviction and remand for a new trial. Given this disposition, we 

need not address Ojeda’s remaining challenges. 

I. Applicable Facts

¶ 2 In 2015, after a six-day trial, a jury found Ojeda guilty of first 

degree murder, second degree kidnapping, and first degree sexual 

assault for events that occurred in 1997. Ojeda’s trial team 

advanced a mistaken identity defense and strenuously challenged 

the prosecution’s reliance on old evidence.

¶ 3 During jury selection, the prosecutor first attempted to excuse 

Juror R.P., a Hispanic male seated in the seventh jury position, for 

cause based on (1) “the content of his questionnaire”; (2) “remarks 

that he made in open court”; and (3) “his demeanor.” She explained 
2

that Juror R.P. expressed a “bias” against the criminal justice 

system and “visibly showed hesitation” when asked whether he 

could be fair. Defense counsel objected, noting that the prosecutor 

was mischaracterizing Juror R.P.’s answers, and highlighted Juror 

R.P.’s disclosure that he could be objective. Defense counsel added 

that Juror R.P. was one of the few Hispanic males on the venire. 

¶ 4 The court then asked the prosecutor to make a further record 

concerning the for-cause challenge to prospective Juror R.P. and 

the prosecutor stated,

With regard to what he put on his [juror] 

questionnaire, I found it to be significant . . . 

he has devoted his career to . . . quality of 

healthcare for individuals. And that, in my 

mind, very much dovetailed with [being] . . . a 

man of very great conviction . . . . He gave our 

system the lowest rating of anyone who has 

been asked to offer a score. I believe his score 

was 4. And when I asked him about the 

linkage between his low confidence in the 

system and whether or not he could be fair, he 

visibly showed hesitation. . . . [And,] when you 

look at that in-court behavior against what is 

clearly his commitment to his job, in terms of 

serving people of color and what he talked 

about in terms of the defendant being a person 

of color — he is himself a person of color — I 

thought that the totality of the record indicated 

that he has a distinctive leaning, that he 
3

himself said he would have trouble in listening 

to the evidence.

¶ 5 Defense counsel immediately responded that the prosecutor 

had “mischaracterized” Juror R.P.’s answers and noted that Juror 

R.P. had expressly stated that he could set aside his experiences 

and “be objective” and that he 

clearly indicated he would follow the rules 

given to him by the Court. He’s also one of the 

few Hispanic men on this entire jury panel, 

and under Batson, I don’t know that it’s 

appropriate to exclude him because he’s 

Hispanic and may have something in common 

with the defendant in his heritage. 

¶ 6 The court denied the prosecutor’s for-cause challenge, finding 

that nothing in Juror R.P.’s feelings or life experiences indicated he 

would not follow the court’s rules or reach a verdict based on the 

evidence. The court also noted that Juror R.P. is “certainly entitled 

to believe that people of color are not well-served in our criminal 

justice or medical system. There’s nothing in his answers that 

those feelings of his life experience will affect his judgment in the 

case, that he won’t follow the rules set forth by the Court. There’s a 

completely inadequate record to challenge him in this case.” The 

prosecutor then requested that the court repeat its ruling “with 
4

regard to the Batson issue,” and the court clarified that it “didn’t 

really reach [that] issue.” Instead, the court expressed that it 

“didn’t think it was a founded challenge, regardless of [Juror R.P.’s] 

personal ethnicity. I just thought that he had attitudes that he was 

certainly entitled to have, and that there was not anywhere near a 

sufficient record that they would affect his ability to be a fair juror.” 

The prosecutor did not question Juror R.P. again before later using

a peremptory challenge to excuse Juror R.P.

¶ 7 The prosecutor later used her fifth peremptory challenge to 

excuse Juror R.P. Defense counsel asserted a Batson challenge 

because he was “obviously concerned about excusing Hispanic 

males from the jury.” In response, the prosecutor first incorporated 

her previous record on Juror R.P. (from the earlier for-cause 

challenge), then offered the following explanation:

To be utterly disclosing, we are pursuing a 

strategy of trying to select jurors who are 

establishmentarian, let’s say, who are in favor 

of the system that we have. And that’s one of 

the reasons I used a rate-the-system type of 

device during my voir dire.

[Juror R.P.] gave our system the lowest rating 

possible — rather, the lowest rating that 
5

anyone had given, which was a number 4, 

which is a matter of some concern.

[T]he jury is going to hear that there were 

errors on the part of the police department in 

terms of not having been able to locate the 

rape kit in this case within the property 

bureau for a period of years. I anticipate some 

very vigorous cross-examination of . . . a 

forensic serologist, in particular, and I 

anticipate that the defense is going to be very 

strongly attacking the Denver Police 

Department, the Denver Police Crime Lab, and 

that it will really build on the statements that 

have already been made during jury selection 

that critique the system as a whole as a way to 

build reasonable doubt in to secure a not 

guilty verdict.

And so what [Juror R.P.’s] concerns were 

about the system — and he said, I have a bias 

against the system. And so the concerns that 

we have do not relate in any way to the color of 

the skin or his national origin, but rather to 

his stated reservations in that regard when we 

know what the evidence will be and when we 

are now getting some pretty strong clues about 

what the defense will be. 

¶ 8 The prosecutor continued by noting the racial composition of 

the jury box and of the group of prospective jurors recently struck 

by the defense. She then added:

Your Honor, if I could wrap up with two other 

thoughts that are very strongly informing our 

desire to exercise a strike as to [Juror R.P.]. 

He’s a polished, educated, and, I believe, 
6

persuasive individual. And because of his 

presentation in that regard, the concern that 

we have is that the critique of the criminal 

justice system that he has talked about, he 

could be very, very strongly persuasive in the 

jury room. That’s race neutral. We see him as 

a person who could very much persuade 

others of the reservations that he has. And 

given what we anticipate by way of the 

evidence, that is the basis for attempting to 

eliminate him.

[And] I anticipate the defense is going to make 

a very strong charge against the validity and 

reliability of the DNA results. . . . And the fact 

that the defendant is a Latino male, if the jury 

is persuaded that there is not a DNA 

connection between . . . the forensic evidence 

in this case and this defendant, it seems to me 

that the comments that [Juror R.P.] made 

about having concerns about racial profiling 

will really come into play in the sense that I 

think that he may then steer the jury towards 

a race-based reason why Mr. Ojeda, you know, 

was charged in the case, and that is because 

[Juror R.P.] had talked about racial profiling in 

conjunction with his other considerations. 

Since I think that’s where the defense is going 

— you know, we have to forecast at this stage 

of the game, and those are all of the raceneutral reasons why we believe that a strike is 

constitutional and not racially motivated as to 

[Juror R.P.].

¶ 9 Defense counsel responded that “[w]ith respect to [Juror R.P.], 

I think [the prosecutor] made my argument for me. She’s 

concerned about a race-based argument being made by [Juror R.P.] 
7

because he’s Hispanic.” In explaining why the peremptory 

challenge was based on race-neutral factors, the court stated:

The Court will deny the challenge for cause as 

to [Juror R.P.], but there are abundant 

race-neutral reasons for a peremptory to be 

exercised. First of all, he too is a victim of a 

sex assault, as is his wife, and he struck the 

Court as remarkably unconcerned about those 

events in his own lifetime. His first thought 

when there was a discussion of the time [it 

has] taken to bring this case was that the 

victim had delayed disclosure. He does have 

an anti-law enforcement bend, so the Court 

finds there’s a sufficient racially neutral basis 

for the challenge.

¶ 10 Immediately following the court’s ruling, the prosecutor 

supplemented her record by noting that her notes reflected that 

when Juror R.P. heard the age of the case, he thought something 

might have gone wrong, which also caused her “particular concern.” 

II. Law and Review Standard

¶ 11 The Equal Protection Clause of the Fourteenth Amendment 

forbids a challenge to a potential juror based solely on race. 

Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M, 

¶ 10 n.4. When a party raises a Batson challenge, the trial court 

engages in a three-step analysis to assess the claim of racial 

discrimination. Wilson, ¶ 10. First, the opponent of the peremptory 
8

strike must allege a prima facie case showing that the striking party 

struck the prospective juror on the basis of race. Id. Second, the 

burden shifts to the striking party to provide a race-neutral 

explanation for excusing the prospective juror. Id. The opponent is 

then given the opportunity to rebut the striking party’s explanation. 

Id.

¶ 12 At step three, the trial court must assess the striking party’s 

actual subjective intent and the plausibility of its nondiscriminatory 

explanations to determine whether the opponent has sufficiently 

established purposeful discrimination. Id.; see also Miller-El v. 

Dretke, 545 U.S. 231, 252 (2005). If the opponent’s “stated reason 

does not hold up, its pretextual significance does not fade because a 

trial judge . . . can imagine a reason that might not have been 

shown up as false.” Miller-El, 545 U.S. at 252.

¶ 13 Significantly, it is improper for a trial court to “sua sponte 

offer[] its own plausible reasons behind the peremptory strike[] at 

issue[.]” Valdez v. People, 966 P.2d 587, 592 n.11 (Colo. 1998); see 

also Miller-El, 545 U.S. at 252 (“The Court of Appeals’s and the 

dissent’s substitution of a reason for eliminating [the juror] does 
9

nothing to satisfy the prosecutors’ burden of stating a racially 

neutral explanation for their own actions.”); People v. Rodriguez, 

2015 CO 55, ¶ 15 n.5 (concluding that the trial court never 

evaluated the validity of the prosecutor’s justification because it 

based its ruling on a different race-neutral explanation than the one 

offered by the prosecution).

¶ 14 We review steps one and two of a Batson challenge de novo. 

Rodriguez, ¶ 13. But, the trial court’s conclusion at step three is 

“an issue of fact to which an appellate court should defer, reviewing 

only for clear error.” Id. We will “set aside a trial court’s factual 

findings only when they are so clearly erroneous as to find no 

support in the record.” People v. Beauvais, 2017 CO 34, ¶ 22. If 

the record shows that the trial court failed to adequately conduct a 

Batson analysis, the appropriate procedure is to remand the case 

for more detailed findings by the trial court. Rodriguez, ¶ 21.

III. Analysis

¶ 15 In addressing the Batson challenge at issue, the trial court did 

not, as it should have, explicitly evaluate the prosecutor’s proffered 

reasons for striking Juror R.P. See Beauvais, ¶ 9; see also Batson, 
10

476 U.S. at 98 (requiring the prosecutor to “articulate a neutral 

explanation related to the particular case to be tried”); Purkett v. 

Elem, 514 U.S. 765, 770 (1995) (Stevens, J., dissenting) (recognizing 

that the prosecutor’s explanation must relate to the case at issue). 

Instead, the court sua sponte offered two race-neutral reasons to 

justify striking Juror R.P.: (1) that Juror R.P. and his wife were not 

only sexual assault victims themselves, but that Juror R.P. seemed 

“remarkably unconcerned” about those life experiences; and (2) that 

Juror R.P. surmised the age of the case might be attributed to the 

victim’s delayed disclosure. Although the prosecutor later agreed 

with the second reason the court offered, the prosecutor did not 

initially offer either reason as a basis for her peremptory strike. 

¶ 16 Before more closely examining the prosecutor’s reasons for the 

strike, it is useful to look to those jurisdictions that have 

encountered race-based and race-neutral reasons supporting a 

Batson challenge. 

A. Multiple Justifications for a Peremptory Strike

¶ 17 Jurisdictions examining race-based and race-neutral reasons 

supporting a Batson challenge have generally considered three 
11

approaches to the issue: (1) the per se approach; (2) a mixed-motive

approach; and (3) the substantial motivating factor approach. 

Neither the United States Supreme Court nor Colorado’s Supreme 

Court has adopted a governing approach. See Snyder v. Louisiana, 

552 U.S. 472, 485 (2008) (not deciding whether mixed-motive 

analysis applies in a Batson context); Rodriguez, ¶ 15 n.5 (while the 

trial court had based its ruling on a different race-neutral 

explanation than the one the prosecution offered, the Colorado 

Supreme Court did not elaborate on how it would evaluate 

peremptory challenges where multiple reasons — race-based and 

race-neutral — are offered). I provide a brief overview of the three 

approaches.

¶ 18 The per se approach provides that a “a racially discriminatory 

peremptory challenge in violation of Batson cannot be saved 

because the proponent of the strike puts forth a non-discriminatory 

reason.” State v. Shuler, 545 S.E.2d 805, 811 (S.C. 2001); see also 

State v. King, 572 N.W.2d 530, 535 (Wis. Ct. App. 1997) (“[W]here 

the challenged party admits reliance on a prohibited discriminatory 

characteristic . . . a response that other factors were also used is 
12

[in]sufficient rebuttal under the second prong of Batson.”). Thus, 

under the per se approach, an improper juror challenge cannot be 

saved.

¶ 19 Under the mixed-motive approach, “[o]nce the claimant has 

proven improper motivation, dual motivation analysis is available to 

the person accused of discrimination to [challenge the issue] by 

showing that the same action would have been taken in the absence 

of the improper motivation that the claimant has proven.” Howard 

v. Senkowski, 986 F.2d 24, 27 (2d Cir. 1993); see also Gattis v. 

Snyder, 278 F.3d 222, 232-35 (3d Cir. 2002); Wallace v. Morrison,

87 F.3d 1271, 1274-75 (11th Cir. 1996); United States v. Darden, 70 

F.3d 1507, 1531-32 (8th Cir. 1995); Jones v. Plaster, 57 F.3d 417, 

420-22 (4th Cir. 1995). Stated differently, 

after the defendant makes a prima facie 

showing of discrimination, the state may raise 

the affirmative defense that the strike would 

have been exercised on the basis of the 

[]neutral reasons and in the absence of the 

discriminatory motive. If the state makes such 

a showing, the peremptory challenge survives 

constitutional scrutiny. 
13

Gattis, 278 F.3d at 233. Thus, a challenge under the mixed-motive 

approach may be saved if the state’s race-neutral reason is 

persuasive.

¶ 20 Under the substantial motivating factor approach, the proper 

inquiry is “whether the prosecutor was ‘motivated in substantial 

part by discriminatory intent.’” Cook v. LaMarque, 593 F.3d 810, 

814-15 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 1212). “To 

determine whether race was a substantial motivating factor — that 

is, whether the defendant has shown ‘purposeful discrimination’ at 

Batson’s third step — the trier of fact must evaluate ‘the 

persuasiveness of the justification[s]’ offered by the prosecutor.” Id.

Unlike the mixed-motive approach, this approach does not allow the 

prosecutor to argue that he would have challenged the juror even 

absent the discriminatory basis. See Kesser v. Cambra, 465 F.3d 

351, 376 (9th Cir. 2006) (Berzon, J., concurring). 

¶ 21 The per se approach is the most faithful to the principles 

outlined in Batson, but the mixed-motive approach is, arguably, 

consistent with United States Supreme Court equal protection 

precedent in non-Batson contexts. See, e.g., Mt. Healthy City Sch.
14

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (noting that the 

district court should have determined whether the board of 

education could show by a preponderance of evidence that it would 

have reached the same decision not to rehire a teacher who engaged 

in constitutionally protected speech in the absence of the teacher’s 

protected conduct); see also Village of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 271 (1977) (plaintiffs failed to carry 

their burden of showing that a discriminatory purpose was a 

substantial motivating factor in an agency’s decision to deny a 

rezoning application). But see Lisa M. Cox, Note, The “Tainted 

Decision-Making Approach”: A Solution for the Mixed Messages 

Batson Gets from Employment Discrimination, 56 Case W. Res. L.

Rev. 769, 782-89 (2006) (describing the civil law origin of 

mixed-motive analysis and arguing it should not be extended in the 

Batson context). The United States Supreme Court does not appear 

poised to adopt the per se standard in Batson cases. The Supreme 

Court mentioned — without adopting — the substantial motivation 

standard in Snyder in 2008, 552 U.S. at 485, and more recently, in 
15

Tharpe v. Sellers, 583 U.S. __, 138 S. Ct. 545 (2018), it indicated 

skepticism about a per se rule. 

¶ 22 In Tharpe, a black defendant moved to reopen his federal 

habeas corpus proceeding regarding his claim that the Georgia jury 

that convicted him of murdering his sister-in-law included a white 

juror who was biased against him and had voted for the death 

penalty because he was black. Id. at __, 138 S. Ct. at 546-47. In 

returning the matter to the court of appeals, the majority thought it 

debatable whether the defendant had shown prejudice even after 

producing an affidavit from the white juror that expressed racist 

opinions about blacks. Id. at __, 138 S. Ct. at 546-49. The Court 

did not hold that the affidavit alone (demonstrating racial animus)

required a per se finding that supported defendant’s petition, much 

less an automatic reversal of his death sentence. Id. The white 

juror later recanted the contents of his first affidavit. Id. It is 

unclear how much this recantation factored into the Court’s 

observation regarding the defendant’s showing of prejudice. But, it 

appears from Tharpe that a judgment of conviction need not be 

automatically, and always, set aside whenever discriminatory 
16

animus is shown even though the evidence also shows that such 

animus may not have been the determinative factor ultimately 

leading to the conviction. 

B. Discussion and Application of the “Substantial Motivating 

Factor” Approach

¶ 23 Recognizing the inherent risk in predicting what the Supreme 

Court may do, in my view, the substantial motivating factor 

standard offers the most flexibility and is the one Colorado should 

adopt. Of course, most of the above-referenced cases pre-date the 

Supreme Court’s 2008 Snyder decision and the 2018 Tharpe

decision. Thus, the reasoning of the pre-Snyder and pre-Tharpe

opinions is not as helpful as is the Idaho Court of Appeal’s 2014 

decision in State v. Ornelas, 330 P.3d 1085 (Idaho Ct. App. 2014), 

which I find persuasive. 

¶ 24 Ornelas read Snyder as setting “a guideline that a peremptory 

strike violates the Equal Protection Clause when the strike is 

‘motivated in substantial part by discriminatory intent.’” Id. at 

1094 (quoting Synder, 552 U.S. at 485). In Ornelas, the 

government did not challenge that Ornelas made a prima facie 

showing under Batson. Id. The court thus proceeded to determine 
17

if the prosecutor supplied a gender-neutral reason to strike Juror 

24, a female. Id. The prosecutor, admitting he wanted a woman on 

the panel, also offered that he struck Juror 24 because she was 

young, lacked life experience, and had a child near the victim’s age. 

Id. at 1091. The appellate court accepted the last three reasons as 

gender-neutral. Id. Adopting the Ninth Circuit’s approach in Cook, 

593 F.3d at 814-15, the Ornelas court inquired whether the strike 

was “motivated in substantial part by discriminatory intent.” 

Ornelas, 330 P.3d at 1093 (quoting Cook, 593 F.3d at 814-15). The 

Ornelas court noted that Juror 24’s gender could have substantially 

motivated the decision to strike her, but ultimately opted to remand 

for the trial court to supplement the record. Id. at 1097.

¶ 25 Ornelas held that when analyzing a Batson challenge where 

permissible and impermissible reasons are provided, the court

should determine if the peremptory strike was motivated in 

substantial part by discriminatory intent. See id. at 1094. If the 

peremptory strike was motivated in substantial part by 

discriminatory intent, the challenger meets his burden of showing 
18

purposeful discrimination, as articulated in the third Batson step. 

Id.

¶ 26 Here, although the prosecutor claimed concern with Juror 

R.P.’s views about the criminal justice system, Juror R.P.’s views 

were inextricably linked to being a Hispanic male who had 

experienced racial profiling, as he disclosed in his questionnaire. 

See State v. McRae, 494 N.W.2d 252, 257 (Minn. 1993) (concluding 

that the prosecutor failed to articulate a race-neutral basis 

supported by the record for excluding a black prospective juror who 

expressed doubt about a system that disproportionately affects 

black men); People v. Mallory, 993 N.Y.S.2d 609, 612 (N.Y. App. Div. 

2014) (holding that the People failed to offer a race-neutral reason 

for a peremptory strike where the prosecutor explicitly referenced 

race in explaining his reasons for challenging one of the prospective 

jurors and where the prospective juror responded by stating “that 

‘[s]ometimes’ police officers unfairly target minorities”). But cf. 

Ananaba v. State, 755 S.E.2d 225, 227 (Ga. Ct. App. 2014)

(concluding that the use of peremptory challenges on three AfricanAmerican venire members because of their prior bad experiences 
19

with law enforcement officers was a race-neutral reason). Where 

the clear focus of the prosecutor in striking Juror R.P. was Juror 

R.P.’s perception that the criminal justice system disproportionately 

affects people of color and those with mental disabilities, it is 

impossible not to conclude that the strike at issue was substantially 

motivated by Juror R.P.’s race. See Batson, 476 U.S. at 106 

(Marshall, J., concurring) (noting that “‘seat-of-the-pants instincts’ 

may often be just another term for racial prejudice”).

¶ 27 The trial court aptly recognized that Juror R.P. was “entitled to 

believe that people of color are not well-served in our criminal 

justice” system, noting that his answers did nothing to indicate that 

“those feelings of his life experience will affect his judgments in the 

case, that he won’t follow the rules . . . There’s no indication he 

couldn’t follow my instructions and reach a verdict based on the 

evidence.” The trial court heard nothing from Juror R.P. to suggest 

that having experienced racial profiling himself would affect his 

ability to decide a case with no allegations of profiling based on the 

evidence presented. The prosecution’s concern that R.P. and 

defendant are “person[s] of color” would somehow lead R.P. to have 
20

“trouble listening to the evidence” is precisely what Batson warned 

against: 

[T]he prosecutor may not rebut the defendant’s 

prima facie case of discrimination by stating 

merely that he challenged jurors of defendant’s 

race on the assumption — or his intuitive 

judgment — that they would be partial to the 

defendant because of their shared race.

Batson, 476 U.S. at 97. And, as discussed below, the reasons the 

prosecutor articulated on the record are not the sort of race-neutral 

explanations the Supreme Court contemplated in Batson and later 

cases. 

¶ 28 Attributing “a distinctive leaning” to Juror R.P., as this 

prosecutor did, because of his life experiences perpetuates the racebased stereotypes Batson eschewed. To the extent the prosecutor 

suggested that Juror R.P. “would have trouble in listening to the 

evidence,” the record soundly refutes that claim. See People v. 

Collins, 187 P.3d 1178, 1183 (Colo. App. 2008) (reversing where 

“[a]t least three of the race-neutral reasons articulated by the 

prosecutor are affirmatively refuted by the record[]”). Juror R.P.

repeatedly reiterated that he would listen to all the evidence and 

follow the court’s instructions. The trial court recognized as much 
21

in denying the prosecutor’s for-cause challenge. See Foster v. 

Chatman, 578 U.S. __, __, 136 S. Ct. 1737, 1749 (2016) (The 

Supreme Court’s “independent examination of the record” revealed 

that “much of the reasoning provided by [the prosecution had] no 

grounding in fact.”). 

¶ 29 The prosecutor adopted the second reason the trial court 

supplied in allowing Juror R.P. to be struck related to his response 

to the delay issue.1 Although the court and the prosecution 

remembered only one reason Juror R.P. offered in speculating why 

 ———————————————————————

1 The trial court’s first supplied reason to strike Juror R.P. — his 

lack of concern over his prior experience with sexual assault — is 

irrelevant, see People v. Rodriguez, 2015 CO 55, ¶ 15 n.5, where the 

prosecutor did not adopt it. As to Juror R.P.’s experience with 

sexual assault, the prosecutor was well aware of that experience 

from R.P.’s juror questionnaire and did not rely upon it in seeking 

to excuse him. Moreover, Juror K.P. was deemed to be a suitable 

juror even though his questionnaire disclosed that his daughter 

was the victim of “incest, sexual assault, or inappropriate sexual 

behavior.” The prosecutor never explained why Juror K.P.’s 

background was deemed acceptable but Juror R.P.’s would not be. 

See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (If the proffered 

reason for striking a black panelist applies equally to “an otherwisesimilar nonblack who is permitted to serve, that is evidence tending 

to prove purposeful discrimination.”). Notably, the record discloses 

that both parties had earlier accepted Juror R.P.’s and Juror K.P.’s 

similar assurances that their prior experiences with sexual assault 

would not affect their judgment in this case. 
22

a 1997 crime would not be tried until 2015, the record discloses 

that Juror R.P. offered several logical reasons — and never 

indicated he would not accept other explanations — for the delayed 

proceedings presented during trial. The operative questioning is as 

follows:

[PROSECUTOR to R.P.]: Did you hear the year 

in which this case took place?

[JUROR R.P.]: I believe it was ’96.

[PROSECUTOR]: And when you heard that it 

was a case from some years ago, did you have 

any response in your gut to think oh, a 

number of years have passed, and here we are 

prosecuting the case? 

[JUROR R.P.]: Yes.

[PROSECUTOR]: Did you have any feelings 

that were associated with that?

[JUROR R.P.]: Yeah. Why so long, and what 

has happened? Maybe the person didn’t 

disclose for some reasons, the victim? Or 

maybe there was a mistrial before, or you 

know, something went awfully wrong for so 

many years to have gone by. 

[PROSECUTOR]: Is there anybody else here —

I saw some heads nodding. Is there anybody 

else here who when the judge said that it was 

a case from 1997, that that pinged somewhere 

in your mind, that it at least registered? Pretty 

much everyone. Is there anyone here . . . 
23

[who] said you shouldn’t be prosecuting 

somebody from ’97? How can that person 

defend themselves from a case that’s so old? 

Several other potential jurors expressed concerns about the age of 

the case, but those jurors were not struck.

¶ 30 That the prosecutor later tried to characterize her objections to 

Juror R.P.’s service as objections to his anti-establishment bent is 

of no moment and smacks of pretext. See, e.g., United States v. 

Bishop, 959 F.2d 820, 826 (9th Cir. 1992) (concluding that the 

reason offered — that the juror lived in a high crime area plagued 

by uneasy police relations — was really a proxy for race), overruled

on other grounds, United States v. Nevils, 598 F.3d 1158, 1167 (9th 

Cir. 2010); Rector v. State, 444 S.E.2d 862, 864-65 (Ga. Ct. App. 

1994) (the prosecutor suggested that he struck a black,

gold-toothed prospective juror because the gold tooth suggested to 

him that the juror was thumbing her nose at society; the court 

rejected the excuse, noting that the gold tooth had “nothing to do 

with [her] ability to perform as a juror”); McCormick v. State, 803 

N.E.2d 1108, 1111 (Ind. 2004) (concluding that the reason provided

— that the juror would find it difficult “passing judgment on a 
24

member of one[’]s own in the community” — was not facially 

race-neutral).

¶ 31 The court briefly mentioned Juror R.P.’s alleged “anti-law 

enforcement bend.” While the record is unclear regarding whether 

the court found that reason, standing alone, sufficient, remanding 

this case to the trial court to make additional findings of fact and 

conclusions of law, see Rodriguez, ¶ 19, is not useful here where 

the record discloses that the non-neutral reasons the prosecutor

offered lacked record support (or were contradicted by the record)

and where the trial court itself earlier acknowledged that Juror R.P. 

was “entitled to believe people of color are not well-served in our 

criminal or medical system” and that nothing in his answers or his 

life experience indicated that it would “affect his judgement in this 

case.”

¶ 32 As to the other race-neutral reasons the prosecutor provided 

for striking Juror R.P., other non-Hispanic prospective jurors

expressed views similar to the views of, or had similar attributes as, 

Juror R.P., see Miller-El, 545 U.S. at 241:
25

• First, regarding the prosecutor’s objection that Juror R.P. was 

“polished, educated,” and persuasive, nine of the jurors who 

served had at least a bachelor’s degree and a few had graduate 

educations. With regards to his specific education, Juror C.B., 

like Juror R.P., revealed that she worked in the health field as 

a nurse. See Reynoso v. Hall, 395 F. App’x 344, 349 (9th Cir. 

2010) (reversing where the record clearly refuted prosecutor’s 

proffered reason of lack of education for striking a prospective 

juror where five white jurors had similar education levels).

• Second, the prosecutor’s asserted concern with Juror R.P. 

having strong opinions is curious because she asked other 

prospective jurors if they would be strong enough to assert 

themselves, revealing a concern that those jurors might be 

weak and unduly influenced. See Reed v. Quarterman, 555 

F.3d 364, 379-80 (5th Cir. 2009) (prosecution’s surmises 

about stricken juror were found to be pretextual where other 

white jurors had also expressed nearly identical concerns but 

were not struck or questioned further); Hardcastle v. Horn, 

521 F. Supp. 2d 388, 405-08 (E.D. Pa. 2007) (rejecting 
26

proffered race-neutral reasons for striking nonwhite potential 

jurors — young, single, unemployed, and unmarried — where 

three other Caucasian women fit a similar description but 

were not struck); Killebrew v. State, 925 N.E.2d 399, 402-03

(Ind. Ct. App. 2010) (refusing to credit the prosecutor’s excuse 

that the juror struck was too “emphatic” and finding that there 

was no meaningful distinction between how the struck juror 

and other white panelists described the applicable burden).

Juror R.P. occupied the seventh seat of the initial jury pool. 

Of the first thirteen jurors seated — before any were struck — three 

were Hispanic (occupying seats four, seven, and nine), and the 

record reflects that eight Hispanic surnamed people were excused 

from jury service before the first and only Hispanic was seated. 

That one Hispanic juror ultimately served in no way cures a Batson

violation; even one improper strike violates the Equal Protection 

Clause. Lancaster v. Adams, 324 F.3d 423, 434 (6th Cir. 2003) 

(subsequent selection of an African-American for the jury did not 

cure the prosecutor’s Batson violation); Fernandez v. Roe, 286 F.3d 

1073, 1079 (9th Cir. 2002) (concluding that the prosecutor 
27

disproportionately struck Hispanics from the jury box even though 

one Hispanic juror ultimately sat on the jury). 

¶ 33 Purposeful discrimination in jury selection harms litigants and 

the individual jurors who are wrongfully excluded and diminishes 

the public’s confidence in the fairness of judicial proceedings. 

Batson, 476 U.S. at 87; see Georgia v. McCollum, 505 U.S. 42, 49

(1992). “The need for public confidence in our judicial process and 

the integrity of the criminal justice system is ‘essential for 

preserving community peace.’” People v. Cerrone, 854 P.2d 178, 

196 (Colo. 1993) (Scott, J., dissenting) (quoting McCollum, 505 U.S. 

at 49). It is therefore “of paramount importance that the 

community believes we guarantee even-handed entry into our 

criminal justice system by way of the jury panel.” Id. (Scott, J., 

dissenting). That is precisely why “[t]he ‘Constitution forbids 

striking even a single prospective juror for a discriminatory 

purpose.’” Foster, 578 U.S. at __, 136 S. Ct. at 1747 (quoting 

Snyder, 552 U.S. at 478); see also Powers v. Ohio, 499 U.S. 400, 

411 (1991) (“[R]acial discrimination in the selection of jurors ‘casts 

doubt on the integrity of the judicial process’ and places the 
28

fairness of a criminal proceeding in doubt.” (quoting Rose v. 

Mitchell, 443 U.S. 545, 556 (1979))).

¶ 34 Not only did the trial court improperly supply independent 

reasons to strike Juror R.P., which it was not supposed to do, 

Valdez, 966 P.2d at 592 n.11 (a trial court may not interject its own 

nondiscriminatory reasons, even if supported by the record), but it 

also failed to recognize that the record refutes most of the 

prosecutor’s proffered excuses. Thus, the record clearly discloses

that the trial court erred in denying the Batson challenge at issue 

here.

IV. Conclusion

¶ 35 The judgment of conviction is reversed, and the case is 

remanded for a new trial.

JUDGE HARRIS specially concurs. 

JUDGE HAWTHORNE dissents.
29

JUDGE HARRIS, specially concurring. 

¶ 36 Defendant Ray Ojeda was convicted, on strong evidence, of a 

horrific series of crimes. Regardless, he had a “right to be tried by a 

jury whose members are selected pursuant to nondiscriminatory 

criteria.” Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). Because I 

conclude that this right was violated, I agree with Judge Fox that 

the judgment must be reversed. 

¶ 37 But I write separately because, unlike Judge Fox, I do not 

believe that the prosecution satisfied even its minimal burden at 

step two of the Batson analysis to state a race-neutral reason for 

striking Juror R.P. Like the district court, I can conceive of 

race-neutral reasons to strike the juror. But by her own admission, 

the prosecutor struck Juror R.P. based on her concern that as a 

“polished” “person of color” with both a commitment to “serving 

people of color” and a relatively low opinion of the criminal justice 

system, he would likely persuade other jurors that the police had 

racially profiled Ojeda who, the prosecutor reminded the court, is 

also “a person of color.” In my view, a discriminatory intent is 

“inherent” in the prosecutor’s explanation, and therefore it does not 
30

qualify as race-neutral. Hernandez v. New York, 500 U.S. 352, 360 

(1991).

I. Applicable Facts

¶ 38 Ojeda was charged with kidnapping, sexually assaulting, and 

shooting a fifteen-year-old girl in 1997. The victim reported the 

crime immediately, but she could not identify the perpetrator and 

the case went cold. Years later, the police retested evidence from 

the victim’s rape kit; DNA from the vaginal swab matched Ojeda.

¶ 39 At the trial in 2015, prospective jurors completed a 

questionnaire that asked, among other things, whether they, a 

friend, or a relative had been the victim of a sexual assault; whether 

they had friends or relatives in law enforcement; and whether they 

or a family member had ever had a particularly good or bad 

experience with a police officer.

¶ 40 Juror R.P. disclosed that he and his ex-wife had been victims 

of sexual misconduct or assault, that he had a friend in law 

enforcement, and that he or a family member had been “racially 

profil[ed].” Because he answered the first question affirmatively, 

Juror R.P., like at least a dozen other jurors, was questioned 
31

individually by counsel. He explained that the “inappropriate 

sexual behavior” he had encountered, as well as his ex-wife’s 

separate experience, occurred in the mid-1980s, before they were 

married. Neither defense counsel nor the prosecutor expressed any 

concern about Juror R.P.’s answers.

¶ 41 Later, during group voir dire, the prosecutor asked eight of the 

prospective jurors to rate the criminal justice system on a scale of 

one to ten. Two jurors rated the system a nine or ten, but of the 

other six jurors, two rated it a four, three gave it a five or six, and 

one rated it a six or seven. Juror R.P. gave the system a score of 

four. He acknowledged that he had “a little bit of a bias on the 

system itself,” explaining that he had “worked with communities of 

color,” and he “[did] know that the criminal justice system is 

disproportionately filled with people of color and folks with mental 

disabilities.” He admitted that, while he would try not to let his 

views affect him as a juror, his feelings about the system might 

color the way he “hear[d] and weigh[ed] the evidence in the case.” 

¶ 42 The prosecutor also asked Juror R.P. whether he had a 

“response in [his] gut” to the delay in bringing the case to trial. 
32

Juror R.P. said that the delay raised questions: “Maybe the person 

didn’t disclose for some reason, the victim? Or maybe there was a 

mistrial before, or you know, something went awfully wrong for so 

many years to have gone by.”

¶ 43 The prosecutor challenged Juror R.P. for cause. She said that 

her challenge was based on the content of Juror R.P.’s 

questionnaire, the remarks he made during general voir dire, and 

his demeanor.

¶ 44 As for the questionnaire, she observed that Juror R.P. worked 

in a field “ha[ving] to do with a quality of healthcare for individuals.” 

Next, she turned to Juror R.P.’s voir dire comments, focusing on his 

“bias against the system.” She construed his comment as an 

admission that his bias would “impact his ability to listen to both 

sides” and said that he “visibly showed hesitation” about his ability 

to be fair. She then summed up her concerns:

And I believe that when you look at that 

in-court behavior against what is clearly his 

commitment to his job, in terms of serving 

people of color and what he talked about in 

terms of the defendant being a person of color 

— he is himself a person of color — I thought 

that the totality of the record indicated that he 

has a distinctive leaning, that he himself said 
33

he would have trouble listening to the 

evidence. 

 

¶ 45 Defense counsel objected to the prosecutor’s challenge on 

various grounds. Then he noted that Juror R.P. was “one of the few 

Hispanic men on this entire jury panel.” He argued that, under 

Batson, the prosecutor could not “exclude him just because he’s 

Hispanic and may have something in common with the defendant 

in his heritage.” The prosecutor did not dispute defense counsel’s 

characterization of the basis of her challenge.

¶ 46 The district court denied the prosecutor’s for-cause challenge, 

finding that “there’s a completely inadequate record to challenge 

him in this case.” The court clarified, however, that it had not 

made any findings under Batson. 

¶ 47 When it came time to exercise peremptory strikes, the 

prosecutor used her last strike to excuse Juror R.P. Defense 

counsel raised a Batson objection. Without awaiting a ruling from 

the court on whether Ojeda had made out a prima facie case of 

discrimination, the prosecutor proceeded to articulate her rationale 

for striking Juror R.P.
34

¶ 48 First, she expressly incorporated her comments related to her 

earlier for-cause challenge. Then, she expanded on those 

comments, emphasizing the same underlying theme. She told the 

court that Juror R.P. would be a bad juror in light of the 

weaknesses in the prosecution’s case. She explained that the jury 

would hear that the police had misplaced the victim’s rape kit and 

she anticipated vigorous cross-examination concerning the DNA 

evidence recovered from the kit years later. Juror R.P.’s 

reservations about the system might make him more skeptical of 

the prosecution’s evidence, she said. The problem was that 

because the “defendant is a Latino male,” and Juror R.P. had 

discussed his own concerns about being racially profiled, Juror R.P.

(a “polished, educated,” and “persuasive individual”) might then 

“steer the jury towards a race-based reason why” Ojeda was 

“charged in the case.” The prosecutor also noted that the jury still 

included a man of Middle Eastern descent, a “gentleman who is 

literally, not metaphorically, but literally of African-American 

descent,” another black man, and a Hispanic man. 
35

¶ 49 Defense counsel disputed that the prosecutor’s reasons were 

race-neutral: “With respect to [Juror R.P.], I think [the prosecutor] 

made my argument for me. She’s concerned about a race-based 

argument being made by [Juror R.P.] because he’s Hispanic.”

¶ 50 The district court, though, found “abundant race-neutral 

reasons for a peremptory to be exercised,” even if they were not the 

reasons given by the prosecutor. Juror R.P. and his ex-wife were 

both victims of sexual assault, the court said, and Juror R.P.

“struck the Court as remarkably unconcerned about those events in 

his own lifetime.” As well, Juror R.P.’s “first thought” when the 

prosecutor asked about the delay in bringing the case to trial “was 

that the victim had delayed disclosure.” And then there was Juror 

R.P.’s “anti-law enforcement ben[t],” which the court did not explain 

further. According to the court, these reasons provided “a sufficient 

racially neutral basis for the challenge.” 

¶ 51 Defense counsel did not challenge any of the court’s reasons 

as pretextual, presumably because he had already challenged the 

prosecutor’s separate reasons as race-based. Consequently, the 

court’s finding of a race-neutral basis for the strike constituted its 
36

final ruling on Ojeda’s Batson objection. Following the court’s 

ruling, the prosecutor added that she, too, had “taken a note” about 

Juror R.P.’s comments concerning the delay and that they were “of 

particular concern.”

¶ 52 The jury convicted Ojeda as charged, and the court sentenced 

him to 144 years in prison.

II. Law and Review Standard

¶ 53 The Equal Protection Clause of the Fourteenth Amendment 

forbids striking a prospective juror for a discriminatory purpose. 

Snyder v. Louisiana, 552 U.S. 472, 478 (2008). “Discriminatory 

purpose” means that the decision-maker selected a particular 

course of action “at least in part ‘because of,’ not merely ‘in spite of,’ 

its adverse effects upon an identifiable group.” Hernandez v. New 

York, 500 U.S. 352, 360 (1991) (quoting Pers. Adm’r v. Feeney, 442 

U.S. 256, 279 (1979)).

¶ 54 The Supreme Court has outlined a three-step process for 

determining when a peremptory strike is discriminatory: 

[O]nce the opponent of a peremptory challenge 

has made out a prima facie case of racial

discrimination (step one), the burden of 

production shifts to the proponent of the strike 
37

to come forward with a race-neutral 

explanation (step two). If a race-neutral 

explanation is tendered, the trial court must 

then decide (step three) whether the opponent 

of the strike has proved purposeful racial 

discrimination. 

Purkett v. Elem, 514 U.S. 765, 767 (1995).

¶ 55 At the second step of the analysis, the issue is the facial 

validity of the prosecutor’s explanation. Valdez v. People, 966 P.2d 

587, 590 (Colo. 1998). Thus, the second step of the process does 

not demand an explanation that is persuasive or even plausible. 

Hernandez, 500 U.S. at 360. The reason need only be race neutral. 

A race-neutral reason is “an explanation based on something other 

than the race of the juror.” Id.; see also People v. Mendoza, 876 

P.2d 98, 101 (Colo. App. 1994) (at step two of Batson analysis, 

prosecutor must offer an explanation for the strike “based on 

something other than race”). If a discriminatory purpose is 

“inherent in the prosecutor’s explanation,” the reason offered 

cannot be deemed race neutral. Hernandez, 500 U.S. at 360. 

¶ 56 While “[c]ircumstantial evidence of invidious intent may 

include proof of disproportionate impact,” Batson, 476 U.S. at 93, 

the required showing under Batson requires more than a 
38

demonstration that the prosecutor’s proffered reason has a racially 

disproportionate impact or “is related to the issue of race,” Akins v. 

Easterling, 648 F.3d 380, 388 (6th Cir. 2011). Still, the prosecutor 

“may not rebut the defendant’s prima facie case of discrimination 

by stating merely that [s]he challenged jurors of the defendant’s 

race on the assumption — or [her] intuitive judgment — that they 

would be partial to the defendant because of their shared race.” 

Batson, 476 U.S. at 97.

¶ 57 In evaluating the race neutrality of the prosecutor’s 

explanation, a court must determine whether, assuming the 

proffered reason for the peremptory challenge is true, the challenge 

is based on something other than race or whether it is race-based 

and therefore violates the Equal Protection Clause as a matter of 

law. Hernandez, 500 U.S. at 359. Accordingly, we apply a de novo 

standard when reviewing the second step of the Batson analysis. 

Valdez, 966 P.2d at 590.

III. Analysis

A.
39

¶ 58 Ojeda argues that the district court clearly erred at step three 

of the Batson analysis. And Judge Fox persuasively credits his view 

of the record. But in my view, the district court did not conduct a 

step three analysis, nor could it have under the circumstances. 

¶ 59 The trial court’s task at step three is to determine whether the 

objecting party proved that the striking party exercised peremptory 

challenges with a discriminatory purpose. People v. Beauvais, 2017 

CO 34, ¶ 23. The crux of the task is discerning whether the 

race-neutral reason for the strike is merely a pretext for a 

race-based decision. See People v. Rodriguez, 2015 CO 55, ¶ 12. 

To make that determination, the court considers the striking party’s 

demeanor, the plausibility of the explanation, and whether the 

proffered rationale has some basis in accepted trial strategy. 

Beauvais, ¶ 23. 

¶ 60 So, in the typical third step case, the prosecutor has explained 

the strike by asserting, for example, that the juror has a mustache 

and a beard, see Purkett, 514 U.S. at 769, or that the juror would 

be preoccupied with other obligations, see Snyder, 552 U.S. at 478. 

Then it is up to the defendant to show by a preponderance of the 
40

evidence that these are not the true reasons for the strike and, 

instead, the “‘discriminatory hypothesis’ better fits the evidence.” 

People v. Wilson, 2015 CO 54M, ¶ 14.

¶ 61 But here, the prosecutor did not claim that she had struck 

Juror R.P. because he had glasses or was reading a magazine 

during voir dire; she claimed she struck Juror R.P. because, as a 

person of color who had some concerns about the criminal justice 

system, he was likely to rally the jury around a theory of the case —

racial profiling — that might seem plausible because of some 

purported weaknesses in the prosecution’s case and because the 

defendant, too, was Hispanic. And defense counsel did not argue 

that the proffered reason for the strike was false and merely a 

pretext for discrimination; he accepted the reason as true and 

argued that it was expressly based on the juror’s race. In response, 

the trial court did not determine that the prosecutor’s reason was 

race neutral and then consider the question of pretext; rather, it 

offered three race-neutral reasons of its own that might have 

justified the prosecutor’s strike and then overruled Ojeda’s Batson

objection.
41

¶ 62 Therefore, like Judge Fox, I see no reason to remand to the 

trial court for a hearing at which the court would determine 

whether the prosecutor’s explanation for the strike was pretextual. 

In my view, that procedure is unnecessary not because the 

prosecutor’s reason was clearly pretextual but because it was 

clearly race-based — that is, a discriminatory purpose was 

“inherent in the prosecutor’s explanation.” Hernandez, 500 U.S. at 

360. 

B.

¶ 63 As an initial matter, all three members of the division agree 

that the trial court cannot supply its own race-neutral reasons for 

the prosecutor’s strike. See Valdez, 966 P.2d at 592 n.11. That 

constitutes error because, under Batson, the question is not an 

objective one — could a race-neutral reason be divined from the 

record? — but a subjective one — did the prosecutor strike the 

juror based on race? See Miller-El v. Dretke, 545 U.S. 231, 252 

(2005) (The focus is on the striking party’s “stated reason,” 

regardless of whether “a trial judge, or an appeals court, can 

imagine a reason that might” withstand scrutiny.). 
42

¶ 64 Relying on Beauvais, the People contend that the court’s 

reliance on its own race-neutral reasons for the strike does not 

amount to a finding that the prosecutor’s stated reasons were 

race-based. They say that in finding “abundant” race-neutral 

grounds for striking Juror R.P., the court “implicitly credited” the 

prosecutor’s proffered grounds. I am not persuaded.

¶ 65 In response to the Batson objection, the prosecutor launched 

into a long explanation, reiterating and expanding on her proffered 

reason for raising the earlier for-cause challenge to Juror R.P. 

(Indeed, the reasons were so closely tied that the court prefaced its 

Batson ruling by stating that it would “deny the challenge for 

cause.”) The trial court did not accept the prosecutor’s reasons, 

albeit without making specific credibility findings, as the trial court 

did in Beauvais.

2 Instead, the court disregarded the prosecutor’s 

 ———————————————————————

2 In People v. Beauvais, 2017 CO 34, the defendant raised a Batson

objection after the prosecutor exercised all of his peremptory strikes 

against female jurors. Id. at ¶ 6. The trial court considered all of 

the prosecutor’s proffered reasons and determined that while the 

reasons were “not strong,” the defendant had not carried her 

burden to show purposeful discrimination. Id. at ¶ 12. On appeal, 

a majority of a division of this court remanded, concluding that, in 

the absence of specific credibility findings, it could neither 
43

reasons and determined that, even setting aside the proffered 

justification, there were three race-neutral reasons for striking the 

juror, none of which were actually mentioned by the prosecutor. 

Thus, I read the trial court’s oral ruling as a finding, and a fairly 

explicit one, that the prosecutor’s explanation was not race neutral 

and that other reasons were necessary to support the strike.

¶ 66 The parties and my colleagues interpret the court’s third 

reason, that Juror R.P. had an “anti-law enforcement ben[t],” not as 

a new reason imagined by the trial court, but simply as another 

way of characterizing the prosecutor’s “anti-establishment” reason. 

That distinction is not critical, though. Whether the court accepted 

the prosecutor’s reason as race-neutral (and added two additional 

reasons) or disregarded her reason as race-based, the de novo 

 ———————————————————————

adequately review the prosecutor’s reasons nor infer that the trial 

court had credited the demeanor-based reasons. Id. at ¶ 16. The 

supreme court reversed. It held that specific credibility findings are 

unnecessary to affirm a step three ruling, whether the proffered 

reasons are demeanor-based or non-demeanor-based. Instead, it 

instructed, an appellate court conducting a clear error review 

should defer to a trial court’s ultimate Batson ruling “so long as the 

record reflects that the trial court weighed all of the pertinent 

circumstances and supports the court’s conclusion” regarding 

purposeful discrimination. Id. at ¶ 32.
44

inquiry at this second step is the same — accepting what the 

prosecutor said as true, was her proffered reason race-neutral or 

race-based?

¶ 67 In answering that question, I do not accept that the prosecutor 

offered multiple independent reasons for the strike. She did not 

say, for instance, that Juror R.P. had a mustache, lacked a science 

background, was nervous during voir dire, and expressed 

anti-establishment views. Those are separate reasons for striking a 

juror. Rather, the prosecutor’s long explanation, including her 

single demeanor-based reference (Juror R.P.’s “hesitation” about the 

effect of his views of the system on his evaluation of the evidence) 

related exclusively to Juror R.P.’s “distinctive leaning” and boiled 

down to a simple proposition: As a “person of color” who had 

concerns about the criminal justice system, Juror R.P. was likely to 

“steer the jury toward a race-based reason why Mr. Ojeda,” who 

was himself “a person of color,” was “charged in the case.”

¶ 68 That a juror holds “anti-establishment” or “anti-law 

enforcement” views can be a race-neutral reason for a strike. See

People v. Friend, 2014 COA 123M, ¶ 17 (holding that striking a 
45

prospective juror because she had a bad experience with law 

enforcement was a sufficiently race-neutral justification), aff’d in 

part and rev’d in part on other grounds, 2018 CO 90. And here, if 

the prosecutor had said only that the strike was based on Juror 

R.P.’s observation about the disproportionate incarceration rates of 

people of color and people with mental health disorders, I would 

agree that the reason was race neutral. People of all races have 

observed this state of affairs and expressed concern about it. 

¶ 69 But the prosecutor went further. She explicitly tied Juror 

R.P.’s race to his views on the justice system. It was not just that 

Juror R.P. had concerns about the system; it was also that he was a 

person of color, like the defendant, and the combination of those 

facts made it more likely that he would find a “race-based” reason 

for the prosecution and then try to persuade the other jurors to 

adopt his view. 

¶ 70 Contrary to the People’s assertion, Juror R.P. did not attribute 

his views of the criminal justice system to his race. He attributed 

his knowledge of the system to his work with “communities of 

color.” Only the prosecutor articulated a connection between Juror 
46

R.P.’s status as “a person of color” and his so-called 

“anti-establishment” views. Thus, I am not convinced by the 

People’s argument that “expressly biased jurors would be insulated 

from peremptory challenges whenever they pointed to their own 

race as a reason for a worldview that favored one party or the 

other.” In those cases, I agree with the People that the juror’s 

biased worldview, regardless of his or her race, would provide a 

race-neutral reason for a peremptory strike. But if the prosecutor, 

not the juror, attributes the juror’s worldview to his or her race, or 

links the juror’s race and worldview to the defendant’s race, then 

the prosecutor’s proffered “worldview” reason is unlikely to be race

neutral. See, e.g., United States v. Bishop, 959 F.2d 820, 822-26 

(9th Cir. 1992) (prosecutor’s reason for striking black juror —

because she lived in Compton and therefore likely believed that the 

police “pick on black people” — was not a race-neutral reason 

where the juror had not expressed any view of the police); see also 

Batson, 476 U.S. at 104 (Marshall, J., concurring) (The exclusion of 

black jurors cannot be justified by “a belief that blacks are less 
47

likely than whites to consider fairly or sympathetically the State’s 

case against a black defendant.”). 

¶ 71 So, is a “discriminatory purpose” “inherent” in the 

prosecution’s explanation? A “discriminatory purpose” exists when 

the decision-maker selects a particular course of action “at least in 

part” because of its adverse effect on an identifiable group. A 

purpose is “inherent” in an explanation if it is “essential” or 

“intrinsic” to the explanation. See Webster’s Third New 

International Dictionary 1163 (2002). In my view, that the 

prosecutor struck Juror R.P. at least in part because of his race is 

intrinsic to her explanation. Thus, I conclude that the prosecutor 

did not meet her burden at step two of the Batson analysis to 

proffer a race-neutral reason for striking the juror. 

C.

¶ 72 Discriminatory purpose is not the same as discriminatory 

animus. A defendant need not show that the race-based strike was 

motivated by the lawyer’s prejudice or animus. And here, I do not 

think the record supports any inference that the prosecutor 
48

harbored ill will or prejudice toward Juror R.P. or any other person 

of color. 

¶ 73 Batson’s rule prevents either party from striking jurors “on 

account of their race.” 476 U.S. at 89. The notion that jurors of a 

particular race or gender will be partial to one side or the other 

merely “on account of” their race or gender is generally based on 

“crude, inaccurate” stereotypes. 476 U.S. at 104 (Marshall, J., 

concurring). Sometimes, the use of those stereotypes in jury 

selection will demonstrate the worst kind of invidious bigotry. See 

Neal v. Delaware, 103 U.S. 370, 393-94 (1880). But more often, a 

lawyer’s reliance on stereotypes to ferret out sympathetic jurors 

“reflect[s] a professional effort to fulfill the lawyer’s obligation to 

help his or her client.” Dretke, 545 U.S. at 271 (Breyer, J., 

concurring). 

¶ 74 In a child abuse case, for example, a female prosecutor may 

rely on the stereotype of women as more nurturing to strike male 

jurors from the jury. But if the accused is a new mother, the 

prosecutor may think it best to strike women, who might 

sympathize with a young mother’s plight. A black prosecutor may 
49

assume that black male jurors are likely to have had bad 

experiences with police officers and strike them from the jury in any 

case that turns on a police officer’s testimony. See id. at 270-71 

(referencing professional materials that promote jury selection 

based in part on race, nationality, and gender). The first prosecutor 

is not a sexist and the second is not a racist. 

¶ 75 “Nevertheless, the outcome in terms of jury selection is the 

same as it would be were the motive less benign.” Id. at 271. And 

so, Batson must be strictly enforced to ensure that any race-based 

strike is prohibited. But equating a discriminatory purpose for 

exercising a strike with discriminatory animus on the part of the 

striking party undermines the goals of Batson.

¶ 76 If a showing of racial animas is necessary, certain lawyers may 

enjoy a sort of immunity from Batson objections. The female 

prosecutor who strikes women jurors is unlikely to be challenged as 

a sexist, and the black prosecutor who strikes black male jurors is 

unlikely to be confronted as a racist. But more importantly, 

enforcement is already hampered by the implication that a lawyer’s 

use of a race- or gender-based strike reveals bigotry or immorality. 
50

I suspect that trial judges hesitate to sustain Batson challenges, 

when they otherwise might and should, because such a ruling is 

seen as tantamount to calling the prosecutor a racist. Perpetuation 

of that misconception allows more, not fewer, race-based strikes to 

go unchecked.

IV. Conclusion

¶ 77 In this case, I conclude that the prosecutor’s reason for 

striking Juror R.P. was based in part on his race. I do not conclude 

that it was based in any part on racial animus of the prosecutor. 

Nonetheless, because the result is the same, I agree with Judge Fox 

that Ojeda’s conviction must be reversed, and the case remanded 

for a new trial. 
51

JUDGE HAWTHORNE, dissenting.

¶ 78 Because I disagree on procedural grounds with how the 

majority and concurrence decide this case given the record before 

us, I respectfully dissent.

¶ 79 In People v. Rodriguez, 2015 CO 55, ¶ 1, the Colorado 

Supreme Court specifically “consider[ed] how both trial and 

appellate courts should determine whether a party has used a 

peremptory challenge to purposefully discriminate against a 

prospective juror on account of [his or] her race.” This is precisely 

the challenge Ojeda brings, so I believe that Rodriguez controls.

¶ 80 Unlike the majority and concurrence, however, I disagree that 

the cold record is sufficient as is for us to decide the merits of 

Ojeda’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986). 

And that’s because the trial court’s Batson analysis was inadequate 

in that it failed to make sufficient factual findings about (1) whether 

Ojeda “ma[d]e a prima facie showing that the peremptory strike was 

based on [Juror R.P.’s] race”; (2) whether the prosecutor provided a 

race-neutral explanation; or (3) whether, ultimately, Ojeda 

established purposeful discrimination. See Rodriguez, ¶¶ 10-12. 

Under these circumstances, Rodriguez requires us to remand the 
52

case to the trial court with directions that it conduct the three-step 

Batson analysis and make the required factual findings. See id. at 

¶ 2 (“[T]he proper remedy for an inadequate inquiry into a Batson 

challenge at the time of jury selection is to remand the case to the 

trial court with directions to conduct the three-part Batson analysis 

and make the required factual findings.”).

¶ 81 So, I disagree with the majority and concurrence’s 

agreed-upon remedy. I would follow supreme court precedent — as 

we must — and remand the case.

I. Relevant Facts

¶ 82 The prosecutor first challenged Juror R.P. for cause on three 

grounds: (1) “the content of his questionnaire”; (2) “his remarks that 

he made in open court”; and (3) “his demeanor.” She explained that 

Juror R.P. had expressed a “bias” against the system and “visibly 

showed hesitation” when asked whether he could be fair. 

Expanding further on these reasons, the prosecutor explained that,

With regard to what he put on his 

questionnaire, I found it to be significant. I 

can’t recall the exact language, but he has 

devoted his career to — it’s not listed on the 

questionnaire, but he had explained to us in 

chambers that it has to do with a quality of 

healthcare for individuals.
53

And that, in my mind, very much dovetailed 

with his — he’s not a forceful speaker in the 

sense that he raises his voice, but he is a man 

of very great conviction. And what he talked 

about is that he had — he used the word 

“bias” against the system. He gave our system 

the lowest rating of anyone who has been 

asked to offer a score. I believe his score was 

4.

And when I asked him about the linkage 

between his low confidence in the system and 

whether or not he could be fair, he visibly 

showed hesitation. He did not speak as readily 

or in the same way that he previously had. He 

said it would impact his ability to listen to both 

sides.

And I believe that when you look at that 

in-court behavior against what is clearly his 

commitment to his job, in terms of serving 

people of color and what he talked about in 

terms of the defendant being a person of color 

— he is himself a person of color — I thought 

that the totality of the record indicated that he 

has a distinctive leaning, that he himself said 

he would have trouble in listening to the 

evidence.

¶ 83 Defense counsel responded that the prosecutor was 

mischaracterizing Juror R.P.’s answers and that Juror R.P. had 

indicated he could be objective. Defense counsel added that Juror 

R.P. was also one of the few Hispanic males on the prospective jury 

and that counsel didn’t “know that it’s appropriate to exclude him 
54

just because he’s Hispanic and may have something in common 

with the defendant in his heritage.”

¶ 84 The court denied the for-cause challenge, finding that there 

wasn’t anything in Juror R.P.’s feelings or life experiences indicating 

he wouldn’t follow the court’s rules or reach a verdict based on the 

evidence. The court also noted that “[t]here’s a completely 

inadequate record to challenge him in this case.” The prosecutor 

then requested that the court repeat its ruling “with regard to the 

Batson issue,” and the court clarified that it “didn’t really reach 

[that] issue.” Instead, it “didn’t think it was a founded challenge, 

regardless of [Juror R.P.’s] personal ethnicity. I just thought that 

he had attitudes that he was certainly entitled to have, and that 

there was not anywhere near a sufficient record that they would 

affect his ability to be a fair juror.” Juror R.P. wasn’t questioned 

again before the parties exercised their peremptory challenges.

¶ 85 The prosecutor used her fifth peremptory challenge to excuse 

Juror R.P. Defense counsel asserted a Batson challenge because he 

was “obviously concerned about excusing Hispanic males from the 

jury.” In response, the prosecutor first incorporated her previous 

statements as to Juror R.P., then gave the following explanation:
55

To be utterly disclosing, we are pursuing a 

strategy of trying to select jurors who are 

establishmentarian, let’s say, who are in favor 

of the system that we have. And that’s one of 

the reasons I used a rate-the-system type of 

device during my voir dire.

[Juror R.P.] gave our system the lowest rating 

possible — rather, the lowest rating that 

anyone had given, which was a number 4, 

which is a matter of some concern.

What we anticipate by way of evidence, Judge, 

that is influencing this race-neutral strike is 

that the jury is going to hear that there were 

errors on the part of the police department in 

terms of not having been able to locate the 

rape kit in this case within the property 

bureau for a period of years. I anticipate some 

very vigorous cross-examination of one of the 

DNA — not a DNA analyst, but a forensic 

serologist, in particular, and I anticipate that 

the defense is going to be very strongly 

attacking the Denver Police Department, the 

Denver Police Crime Lab, and that it will really 

build on the statements that have already been 

made during jury selection that critique the 

system as a whole as a way to build reasonable 

doubt in to secure a not guilty verdict.

And so what [Juror R.P.’s] concerns were 

about the system — and he said, I have a bias 

against the system. And so the concerns that 

we have do not relate in any way to the color of 

the skin or his national origin, but rather to 

his stated reservations in that regard when we 

know what the evidence will be and when we 

are now getting some pretty strong clues about 

what the defense will be.
56

¶ 86 The prosecutor continued by noting the racial composition of 

the jury box and of the group of prospective jurors recently struck 

by the defense. She then added:

Your Honor, if I could wrap up with two other 

thoughts that are very strongly informing our 

desire to exercise a strike as to [Juror R.P.]. 

He’s a polished, educated, and, I believe, 

persuasive individual. And because of his 

presentation in that regard, the concern that 

we have is that the critique of the criminal 

justice system that he has talked about, he 

could be very, very strongly persuasive in the 

jury room. That’s race neutral. We see him as 

a person who could very much persuade 

others of the reservations that he has. And 

given what we anticipate by way of the 

evidence, that is the basis for attempting to 

eliminate him.

The other item, which is a slightly different 

concept, is that I anticipate the defense is 

going to make a very strong charge against the 

validity and reliability of the DNA results. And 

I believe that they are going to say that it was 

some unnamed individual who did this 

violence against [the victim]. And the fact that 

the defendant is a Latino male, if the jury is 

persuaded that there is not a DNA connection 

between the defendant — or excuse me, 

between the forensic evidence in this case and 

this defendant, it seems to me that the 

comments that [Juror R.P.] made about having 

concerns about racial profiling will really come 

into play in the sense that I think that he may 

then steer the jury towards a race-based 

reason why Mr. Ojeda, you know, was charged 
57

in the case, and that is because he talked 

about that — [Juror R.P.] had talked about 

racial profiling in conjunction with his other 

considerations. Since I think that’s where the 

defense is going — you know, we have to 

forecast at this stage of the game, and those 

are all of the race-neutral reasons why we 

believe that a strike is constitutional and not 

racially motivated as to [Juror R.P.].

¶ 87 Defense counsel responded that “[w]ith respect to [Juror R.P.], 

I think [the prosecutor] made my argument for me. She’s 

concerned about a race-based argument being made by [Juror R.P.] 

because he’s Hispanic.” The court then made its ruling:

The Court will deny the challenge for cause as 

to [Juror R.P.], but there are abundant 

race-neutral reasons for a peremptory to be 

exercised. First of all, he too is a victim of a 

sex assault, as is his wife, and he struck the 

Court as remarkably unconcerned about those 

events in his own lifetime. His first thought 

when there was a discussion of the time it’s 

taken to bring this case was that the victim 

had delayed disclosure. He does have an 

anti-law enforcement bend, so the Court finds 

there’s a sufficient racially neutral basis for the 

challenge.

¶ 88 Immediately following the court’s ruling, the prosecutor 

supplemented her record by noting that she had in her notes that 

when Juror R.P. heard the age of the case, he thought something 

might have gone wrong, which also caused her “particular concern.”
58

II. The Batson Analysis

¶ 89 Following Rodriguez, I believe that “[t]he proper remedy in this 

case depends upon whether the trial court completed the Batson 

analysis but made a clearly erroneous ruling as to the existence of 

racial discrimination, or whether the court conducted an inadequate 

Batson analysis.” Rodriguez, ¶ 7 (emphasis added). Said another 

way, the threshold question is: Did the trial court make sufficient 

factual findings to allow us to determine whether Ojeda established 

that the prosecutor struck Juror R.P. because of his race? Id. I 

think the answer to that question is clearly “no.”

¶ 90 The Equal Protection Clause of the Fourteenth Amendment 

forbids a challenge to a potential juror based solely on race. 

Batson, 476 U.S. 79; People v. Wilson, 2015 CO 54M, ¶ 10 n.4. 

When a party raises a Batson challenge, the trial court should 

engage in a three-step analysis to assess the claim of racial 

discrimination and determine whether the defendant has proven 

such claim. Wilson, ¶ 10; Rodriguez, ¶ 9.

¶ 91 Rodriguez lays out Batson’s framework and explains its three 

steps in detail, as do my colleagues, so I won’t repeat it all again. 
59

Instead, I’ll only reiterate what I believe is most relevant to this 

case.

¶ 92 The first step, requiring that “the defendant must make a 

prima facie showing that the peremptory strike was based on the 

prospective juror’s race,” Rodriguez, ¶ 10, isn’t challenged here. Not 

by the People, the majority, or the concurrence. Still, I note that, at 

step one, the burden is on the defendant and the trial court should 

make a record about whether he or she has satisfied that burden 

before proceeding to step two. See Batson, 476 U.S. at 96 (“In 

deciding whether the defendant has made the requisite showing, 

the trial court should consider all relevant circumstances.”);

Rodriguez, ¶ 13.

¶ 93 If the defendant successfully makes a prima facie showing, the 

burden shifts at step two to the striking party — here, the People —

to provide a race-neutral explanation for excusing the prospective 

juror. Rodriguez, ¶ 11. While the prosecutor “must do more than 

deny a discriminatory motive or affirm his [or her] good faith . . . .

[t]o pass muster, the explanation need not be ‘persuasive, or even 

plausible, as long as it does not deny equal protection.” Id. (quoting 

Purkett v. Elem, 514 U.S. 765, 768 (1995)). “Nothing more is 
60

required for the inquiry to proceed to step three.” Id. But again, 

the trial court should make a record stating whether the prosecutor 

has met his or her burden before moving on.

¶ 94 At step three — after the defendant has an opportunity to 

rebut the prosecutor’s race-neutral explanation — the trial court 

“must decide the ultimate question: whether the defendant has 

established purposeful discrimination.” Id. at ¶ 12 (emphasis 

added).

¶ 95 It is at this stage that the trial court must assess the 

prosecutor’s actual subjective intent and the plausibility of her 

nondiscriminatory explanations to determine whether the defendant 

has sufficiently established purposeful discrimination. Miller-El v. 

Dretke, 545 U.S. 231, 252 (2005); see Hernandez v. New York, 500 

U.S. 352, 378 (1991) (“[T]he Court has imposed on the defendant 

the added requirement that he generate evidence of the prosecutor’s 

actual subjective intent to discriminate.”); Rodriguez, ¶ 12 (“It is at 

this stage that ‘implausible or fantastic [step-two] justifications may 

(and probably will) be found to be pretexts for purposeful 

discrimination.’” (quoting Purkett, 514 U.S. at 768)).
61

¶ 96 The trial court’s ruling at step three “should be based on its 

evaluation of the prosecutor’s credibility and the plausibility of his 

[or her] explanation.” Rodriguez, ¶ 12. If the prosecutor’s “stated 

reason does not hold up, its pretextual significance does not fade 

because a trial judge . . . can imagine a reason that might not have 

been shown up as false.” Dretke, 545 U.S. at 252.

III. Standard of Review

¶ 97 “[E]ach step of the trial court’s Batson analysis is subject to a 

separate standard of review.” Rodriguez, ¶ 13 (citing Valdez v. 

People, 966 P.2d 587, 590 (Colo. 1998)).

¶ 98 At step one, “the reviewing court considers de novo whether 

the defendant established a legally sufficient prima facie case —

though it should defer to the trial court’s underlying factual 

findings.” Id. Step two, “the facial validity of the prosecutor’s 

justification” is also reviewed de novo, again with deference given to 

the trial court’s factual findings. Id.

¶ 99 Then, at step three, the trial court’s “determination as to the 

existence of racial discrimination is an issue of fact to which an 

appellate court should defer, reviewing only for clear error.” Id. 

“Since the trial judge’s findings in the context under consideration 
62

here largely will turn on evaluation of credibility, a reviewing court 

ordinarily should give those findings great deference.” Batson, 476 

U.S. at 98 n.21.

IV. The Trial Court’s Findings (Or Lack Thereof)

¶ 100 “To determine whether we can conclude that [the] strike 

violated Batson, we evaluate the adequacy of the trial court’s 

findings.” Rodriguez, ¶ 14.

¶ 101 I begin with Batson’s step one, where Ojeda “must make a 

prima facie showing that the peremptory strike was based on” Juror 

R.P.’s race. Id. at ¶ 10. After the prosecutor moved to peremptorily 

strike Juror R.P., defense counsel immediately challenged the strike 

under Batson. He argued, “I am obviously concerned about 

excusing Hispanic males from the jury.” At that point, the trial 

court should have made — but didn’t — findings about whether 

Ojeda satisfied his step-one burden. Rather, it allowed the 

prosecutor to respond. The prosecutor immediately jumped to 

Batson’s step two, where she articulated her race-neutral rationale 

for the strike. And after she did so, the trial court again should 

have made — but didn’t — findings about whether her explanation 

“pass[ed] muster.” Id. at ¶ 11. Instead, it merely asked defense 
63

counsel if he had “anything further?” Defense counsel promptly 

replied that, as to Juror R.P., “I think [the prosecutor] made my 

argument for me. She’s concerned about a race-based argument 

being made by [Juror R.P.] because he’s Hispanic.” The court then 

launched into its purported step-three ruling.

¶ 102 Although our review at steps one and two is de novo, we’re 

nonetheless required to “defer to the trial court’s underlying factual 

findings” in conducting that review. Id. at ¶ 13. But where there 

aren’t any factual findings because the court’s Batson analysis was 

incomplete, and therefore inadequate, we can’t simply stand in for 

the trial court and make factual findings of our own. Under those 

circumstances, Rodriguez requires us to remand the case to the 

trial court so that it may make the required factual findings. At 

that point, we can properly proceed with our de novo review. See 

id. at ¶¶ 2, 13.

¶ 103 Finally, at step three, our review of the court’s ruling “as to the 

existence of racial discrimination is an issue of fact to which [we] 

should defer, reviewing only for clear error.” Id. at ¶ 13. This is 

because the court’s step-three determination turns largely on “its 

evaluation of the prosecutor’s credibility and the plausibility of his 
64

[or her] explanation.” Id. at ¶ 12; see also Wilson, ¶ 13 (“The 

inquiry at step three requires the trial court to decide whether to 

believe counsel’s race-neutral explanation for a peremptory 

challenge. ‘The best evidence often will be the demeanor of the 

attorney who exercises the challenge,’ evaluation of which lies 

‘peculiarly within a trial judge’s province.’” (quoting Hernandez, 500 

U.S. at 365)) (alterations omitted).

¶ 104 But again, the trial court’s step-three analysis was inadequate. 

Unlike at steps one and two, the court did make some findings at 

step three. It offered — sua sponte — two race-neutral reasons for 

striking Juror R.P.: (1) that R.P. and his wife were not only sexual 

assault victims themselves, but that R.P. seemed “remarkably 

unconcerned” about those life experiences; and (2) that R.P. 

surmised the age of the case might have been because of the 

victim’s delayed disclosure. Although the prosecutor agreed with 

the second reason after the court made its Batson ruling, neither 

reason was initially given as a basis for the prosecutor’s exercise of 

a peremptory challenge. And, it’s improper for a trial court to “sua 

sponte offer[] its own plausible reasons behind the peremptory 

strike[] at issue.” Valdez, 966 P.2d at 592 n.11; see also Dretke, 
65

545 U.S. at 252 (“The Court of Appeals’s and the dissent’s 

substitution of a reason for eliminating [the juror] does nothing to 

satisfy the prosecutors’ burden of stating a racially neutral 

explanation for their own actions.”); Rodriguez, ¶ 15 n.5 (concluding 

that the trial court never evaluated the validity of the prosecutor’s 

justification because it based its ruling on a different race-neutral 

explanation than the one offered by the prosecution).

¶ 105 So, arguably, the only mention the court made to a reason 

stated by the prosecutor was that Juror R.P. had an “anti-law 

enforcement bend.” The court didn’t mention or evaluate the 

prosecutor’s credibility, demeanor, or intent. Nor did it evaluate 

Juror R.P.’s demeanor, given the prosecutor’s demeanor-based 

reasons for the strike, including that he “visibly showed hesitation” 

and didn’t “speak as readily” in response to questions about 

whether he could be fair. And, it didn’t consider the plausibility or 

persuasiveness of the prosecutor’s explanations for the strike. 

Especially at step three, the trial court’s 

firsthand observations are crucial: it “must 

evaluate not only whether the prosecutor’s 

demeanor belies a discriminatory intent, but 

also whether the [prospective] juror’s 

demeanor can credibly be said to have 
66

exhibited the basis for the strike attributed to 

the [prospective] juror by the prosecutor.” 

Rodriguez, ¶ 18 (quoting Snyder v. Louisiana, 552 U.S. 472, 477

(2008)); see also Wilson, ¶ 18 (“Only the trial court can assess 

non-verbal cues, such as hesitation, voice inflection, and facial 

expressions, that are not recorded on a transcript.”).

¶ 106 Absent adequate findings, I don’t think we should stand in the 

trial court’s shoes and, relying on the cold record, say whether the 

prosecutor struck Juror R.P. because of his race. See Rodriguez, 

¶¶ 17-18 (where the trial court didn’t make the necessary findings 

at steps one, two, or three, “it is impossible for a reviewing court to 

tell whether the prosecutor struck [the juror] because of her race”). 

The need for the trial court’s factual findings at each step is made

more apparent by this very opinion where, absent such findings, 

three judges on this court are divided about how to interpret the 

prosecutor’s words.

V. Conclusion

¶ 107 I believe that the proper remedy is for us to remand the case to 

the trial court and allow it to conduct the three-part Batson 
67

analysis and make the required factual findings at each step. The 

Colorado Supreme Court in Rodriguez put it best:

An inadequate analysis by the trial court does 

not equate to a constitutional violation by the 

prosecutor, and it should not call for the same 

remedy. The passage of time may create 

challenges for the trial court on remand, but 

those challenges do not alter the structure of 

the Batson analysis or relieve [the defendant] 

of his burden. The only way to determine 

whether racial discrimination tainted the 

prosecutor’s use of peremptory challenges is 

for the trial court to conduct further 

proceedings as it deems necessary on remand 

and complete the Batson analysis.

Id. at ¶ 20 (citations omitted). For these reasons, I respectfully 

dissent.