Members of the Colorado Supreme Court this week struggled with the fate of a Black defendant’s convictions in an overwhelmingly White jurisdiction, after a trial judge refused to dismiss a juror who admitted he “didn’t want diversity.”

Although the justices have previously addressed cases involving people of color who were removed from juries because of their race — which amounts to a constitutional violation — the appeal of Reginald Keith Clark involved the opposite scenario: A person allowed to remain in the jury pool despite making arguably racist statements.

“If you’re Mr. Clark,” said Justice Richard L. Gabriel during oral arguments on Tuesday, “I can conceive of just sitting here saying, ‘I’m not going to get a fair shake. I’m the only Black person in this room. I’ve got a juror who’s already expressed racist comments. The judge said this is OK.’

“Don’t we as a society care that that person should not be in this courtroom, in this jury?” he added.

Senior Assistant Attorney General Patrick A. Withers, in arguing against a new trial for Clark, insisted his office was “not saying this isn’t a problem.” However, he believed the solution was better training for judges.

“Does it fall on deaf ears when there’s no accountability? In other words: When there’s no sanction, who cares?” responded Justice William W. Hood III.

Clark’s case previously fractured the state’s Court of Appeals, where a three-judge panel provided three different views about what problem — if any — arose from the juror’s biased commentary.

A ‘political’ view on diversity

A Gilpin County jury convicted Clark of kidnapping a woman from Denver, driving her to the mountains near Black Hawk and sexually assaulting her. During jury selection, Clark’s attorney raised the fact that Clark was the only Black person in the room. Some jurors acknowledged that from Clark’s perspective, he “might have some reservations” about whether he would receive a fair trial in Gilpin County, which is 92% White.

One member of the jury pool, Juror K, then volunteered his thoughts about the issue of diversity.

“Yes, it’s obvious there’s a Black gentleman over there. This is Gilpin County. I moved to Gilpin County. I didn’t want diversity,” Juror K said. “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. And I can’t change that.”

After the parties spoke with then-District Court Judge Dennis J. Hall, the judge asked Juror K if he could perform his duties based on the evidence. Yes, Juror K responded. Although the defense moved to dismiss Juror K for cause, Hall denied the request.

Juror K expressed “a political view, I think,” Hall elaborated. “That doesn’t really answer the question of whether he can be a fair juror. And a person can certainly have offensive views and still apply the law. Those two things are really separate in my mind.”

The defense later removed Juror K using one of its allotted strikes, and he did not serve on the jury.

On appeal, the question was whether Hall improperly handled the challenge to Juror K and, if so, whether Clark deserved a new trial. In an unusual decision, the Court of Appeals panel issued three separate opinions, one for each judge. 

Judges Terry Fox and Timothy J. Schutz believed Hall should have dismissed Juror K for cause because of his admitted racial bias. Judge John Daniel Dailey believed Hall did not make a mistake and that nothing warranted a reversal of Clark’s convictions. On the latter point, Fox agreed, forming a 2-1 majority to uphold Clark’s convictions.

Only Schutz felt the error was structural in nature — meaning Juror K’s continued presence in the jury pool affected the fundamental fairness of Clark’s trial.

“The decision to permit a racially biased prospective juror to continue on the panel spoke not only to Clark, but also to the greater community,” he argued. “The message sent was that a prospective juror could sit in judgment of a person against whom he had an acknowledged racial bias.”

When would racist comments require reversal?

Multiple outside organizations wrote on behalf of Clark to the Supreme Court: the ACLU, the NAACP and the bar associations representing Black, Hispanic, Asian and South Asian lawyers. They slammed Hall’s characterization of Juror K’s statements as “political,” and argued Hall effectively signaled a person’s racial bias did not disqualify them from jury service.

The justices observed that the defense, the government and the Court of Appeals’ majority all agreed Hall made a mistake by failing to dismiss Juror K. However, some of them struggled to understand the alleged constitutional violation that would trigger a new trial for Clark.

“The disconnect for me here is that this juror did not actually sit in the trial, participated in no way in the decision-making,” said Justice Monica M. Márquez.

Public defender Casey Mark Klekas responded that Clark was forced to use one of his allotted strikes to dismiss the racially biased juror. A White defendant, he pointed out, would not have needed to do so. Moreover, Juror K’s presence called into question the fairness of the proceedings.

“It seems to be premised on the notion that the other people in the courtroom would be savvy enough to pick up on what was happening, right?” said Hood. “Even if they don’t understand the legal details, they get it that this guy said something that seemed to be racist and he’s allowed to stick around?”

“That’s exactly right,” replied Klekas.

Withers, of the attorney general’s office, argued Clark received a fair trial, and a reversal would do nothing to “better educate trial courts on ferreting out racial bias.” He suggested the strongly worded opinion from the Court of Appeals was a sufficient deterrent to other judges.

Gabriel asked whether a “more extreme racist juror” would ever pose a constitutional problem, as long as the defense ultimately removed the juror itself before trial started.

“The problem here is not of one to the defendant’s trial rights,” Withers responded. “It is a social problem and a problem of the jurist in this case — and I’m not impugning him in any way — of the jurist in this case not understanding all of the insidious ways that race manifests itself in how people discuss things.”

The case is Clark v. People.