Arapahoe County Juries Racially Biased But Harmless?

The Colorado Supreme Court held today in a pair of cases out of Arapahoe County, Colorado, that the jury selection system in that county had a statistically significant racial bias that must be eliminated immediately, although it also held that these biases were not a basis for overturning convictions arising from that jury pool.

As previously noted in this blog, Aurora, Colorado, much of which is in Arapahoe County, is one of the most racially diverse cites in the state, while the rest of Arapahoe County has a smaller non-Hispanic white population on a percentage basis.

Given these demographics, any process with disproportionately removes Aurora residents from the jury pool leads to statistically significant reductions in minority populations in Arapahoe County jury pools.

Arapahoe County had such a practice. Someone in Aurora who is called for jury duty in municipal court is removed from the county and district court jury pools. But people in unincorporated Arapahoe County can't be called to appear for jury duty in municipal court, and so they are less likely to be disqualified from county and district court jury pools.

Because this systematic practice resulted in a statistically significant underrepresentation of African-American and Hispanics on jury panels in Arapahoe County, we disapprove of it and direct that it be stopped immediately. As the evidence presented by the expert showed, the likelihood that the underrepresentation of African-Americans on jury panels in Arapahoe County occurred by chance was 0.008%, or eight out of every 100,000 times, and that the likelihood that the underrepresentation of Hispanics on jury panels in Arapahoe County occurred by chance was 0.120%, or 120 out of every 100,000 times.

However, upon review of the other statistical evidence presented by Washington, we conclude that the underrepresentation of African-Americans and Hispanics as measured by statistical significance was minimal. As measured by absolute impact, the practice of giving double credit to prospective jurors for service in Aurora municipal court resulted in a decrease of less than one African-American and one Hispanic in every three 90- to 100-person jury panels in Arapahoe County. As measured by absolute disparity and comparative disparity, the underrepresentation of African-Americans and Hispanics here was slight when compared with other cases in which the underrepresentation violated a defendant’s constitutional right to a jury selected from a fair cross-section of the community.

Therefore, although we disapprove of the practice of giving double credit to prospective jurors for service in Aurora municipal court, our review of all the statistical evidence presented by Washington leads us to conclude that the underrepresentation of African-Americans and Hispanics on jury panels in Arapahoe County at the time of the defendants’ trials was not unfair or unreasonable, and thus did not violate the Sixth Amendment’s fair cross-section guarantee. We therefore affirm the judgments of the court of appeals.

Washington and Sayles also argue that the evidence of statistical significance in this case is sufficient to establish a violation of their statutory rights under the Colorado Uniform Jury Selection and Service Act, §§ 13-71-101 to -145, C.R.S. (2007). However, because neither Washington nor Sayles raised this argument at trial, on appeal to the court of appeals, or in their petitions for certiorari review, we reject their statutory claims as untimely.

Notably, Sir Mario Owens was recently sentenced to death by an all white Arapahoe County jury. While the Colorado Supreme Court decision in this case may deny him state court review of this issue, the fact that the Colorado Supreme Court ruled that there was a statistically significant disparity at the time his jury was selected, provides a possible issue in federal court review of his case.