The Colorado Supreme Court announced it will decide whether a person’s belief that racial bias exists in policing is an acceptable reason to remove them from a jury, or whether doing so violates the longstanding prohibition against race discrimination in jury selection.

At least three of the court’s seven members must consent to hear a case on appeal.

The justices also agreed to review two other appeals — each involving a divided ruling from the state’s second-highest court — about procedural hurdles for plaintiffs looking to sue. Specifically, the Supreme Court will examine how much time children who are injured in car accidents have to file a civil claim, and whether a desire to avoid the logistical headache of multiple trials is sufficient grounds for appellate judges to decide a case.

Race, policing and jury selection

Nearly four decades ago, the U.S. Supreme Court held in Batson v. Kentucky that purposeful racial discrimination in jury selection is unconstitutional. Now, defendants may make a “Batson challenge” if they believe prosecutors are attempting to remove, or strike, people of color from jury pools due to their race.

Although “peremptory strikes” during jury selection do not typically require an explanation, a Batson challenge forces the prosecution to give a non-racial reason for removing a particular juror. Whether an explanation is rooted in race, however, is often a disputed issue.

An Arapahoe County jury convicted Raeaje Resshaud Johnson of multiple domestic-violence related offenses. During jury selection, the prosecutor attempted to strike Juror M, the only Black person. On her questionnaire, Juror M indicated she had a bad experience with police, indicating there were “Many cases where cops are disrespectful due to certain racial identities.” She also conceded she would “wonder” about the context of Johnson’s domestic violence case, even after hearing the evidence.

When Johnson raised a Batson challenge, the prosecutor provided two “race-neutral” reasons for striking Juror M. First, Juror M “talked about how people of different races were treated differently in her experience with law enforcement.” Second, Juror M indicated she would wonder about the defendant’s domestic violence history.

The defense argued the prosecution’s first reason stemmed from Juror M’s race.

“It’s clear based on her questionnaire that she’s experienced racism in the past,” said Johnson’s attorney. “I believe she’s experiencing racism as a juror by taking her off this panel for Mr. Johnson, who is an African-American male.”

District Court Judge Ben L. Leutwyler denied the Batson challenge, saying the prosecution’s reasons were race-neutral.

In October, a three-judge panel for the Court of Appeals reversed Johnson’s convictions based on the prosecutor’s actions. The panel reached two main conclusions.

First, “a Black juror’s personal experience with law enforcement that is race based is not, on its face, a race-neutral explanation and, instead, constitutes a race-based explanation,” wrote Judge Rebecca R. Freyre. Consequently, it was a constitutional violation to strike Juror M for her negative experience with law enforcement because it had some connection to her race.

Second, the panel adopted a new method for evaluating Batson challenges. If a prosecutor gives both a racebased reason and a race-neutral reason for striking a juror — as Johnson’s prosecutor did — the trial judge must nevertheless grant the challenge because the unconstitutional reason “taints the entire jury selection process.”

Then-Judge Michael H. Berger dissented. Although he agreed with the “tainted” approach and also believed Leutwyler’s analysis of the Batson challenge was wrong or insufficient at times, Berger worried that jurors will now become “immune” to dismissal once they state their view that police treat people differently based on race.

The prosecution appealed to the state Supreme Court, blasting the ruling for taking away discretion from trial judges to evaluate race-neutral explanations.

“Striking a potential juror because they have had negative experiences with police,” wrote First Assistant Attorney General John T. Lee, “is not racebased discrimination because people of any race can have negative experiences with police that bias them against law enforcement witnesses and, logically, the prosecution.”

The Supreme Court will review the Court of Appeals’ conclusions.

The case is People v. Johnson.

Personal injury cases involving children

In November 2015, Mark Kinslow hit 16-year-old Daniala Mohammadi with his vehicle while she was crossing the street in Aurora. Mohammadi filed a lawsuit against Kinslow on Dec. 30, 2019, more than four years after the collision.

Kinslow sought to dismiss the lawsuit on the grounds that Mohammadi filed it outside of the window outlined in state law. An Arapahoe County judge agreed with him and tossed the suit.

Last year, a panel of the Court of Appeals decided, 2-1, to reinstate the

lawsuit. The ruling hinged on the legal significance of Mohammadi turning 18 on Jan. 1, 2017.

Colorado law gives people three years to file a civil claim after they are injured in a motor vehicle accident. For Mohammadi, her statute of limitations would have expired in November 2018. However, if the injured party is under 18, as Mohammadi was, the law allows them to file suit within that statute of limitations or within two years after turning 18, whichever is later.

Under that interpretation, Mohammadi had until January 2019, two years after turning 18, to sue Kinslow.

The Court of Appeals’ majority acknowledged such a reading of the law made sense. On the other hand, the Colorado Supreme Court has indicated in the past that the statute of limitations is “tolled,” or paused, when someone is under 18. Given that directive, Mohammadi’s clock actually started on Jan. 1, 2017.

“Consequently, as she argued, Mohammadi had until January 1, 2020 — three years from her eighteenth birthday — to file her action,” wrote Judge David H. Yun.

Judge Craig R. Welling disagreed, arguing the Supreme Court’s prior cases did not address this exact situation.

The Supreme Court accepted Kinslow’s appeal and will clarify the timeline injured children have to sue.

The case is Kinslow v. Mohammadi.

Final or not final?

Daniel Wolf, Michael J. Brenneman and Jeffrey B. Selby were involved in the development of a Four Seasons Hotel and residential tower in Denver. Eventually, Brenneman and Selby suspected Wolf of misappropriating funds and made accusations to Denver prosecutors and a grand jury that Wolf claimed were false. The men also made statements to Westword that Wolf “steals from us.” A jury acquitted Wolf.

Wolf then sued Brenneman and Selby for their role in his prosecution. In August 2020, then-District Court Judge Michael J. Vallejos dismissed most of Wolf ’s claims, finding the defendants were immune for their participation in the legal process. Vallejos allowed Wolf ’s defamation claim over the Westword comments to proceed.

Vallejos clarified that his order was “final,” meaning the Court of Appeals could review whether he properly dismissed large parts of the case. He reasoned that it made sense for all of Wolf ’s claims to be tried together, so the Court of Appeals should decide whether to reinstate any of the dismissed allegations before a trial begins.

By 2-1, the appellate panel threw out the appeal. Relying on one of its own prior decisions Allison v. Engel, the majority pointed out that trial judges can only certify rulings as final when there is “no just reason to delay an appeal.” Avoiding a headache from having one trial on the defamation claim, and possibly another trial if the dismissed claims get reinstated, is not a “just reason,” the majority concluded.

Berger, who was one of the judges who decided the Allison case, disagreed. He expressed regret that the Allison decision was so inflexible and believed the panel should have decided the appeal to avoid the specter of multiple trials.

Turning to the Supreme Court, both Wolf and the defendants unusually agreed on the main issue: that the Court of Appeals should have issued an opinion deciding their case. The Supreme Court will now review that question.

The case is Wolf v. Brenneman et al.