The Denver-based federal appeals court concluded on Monday that a prosecutor who dismissed all the Hispanic members of a jury pool did not violate the longstanding prohibition against intentional racial discrimination in jury selection.

A three-judge panel for the U.S. Court of Appeals for the 10th Circuit declined to grant a new trial for Jack V. Smalley, who a jury convicted of bank fraud in early 2020. Even though the prosecutor removed, or struck, every Hispanic person during jury selection, the panel found there was insufficient information to conclude the government treated the Hispanic jurors differently from the non-Hispanic jurors for racial reasons.

If Smalley had cast doubt on the prosecution’s explanations in greater detail at the time of trial, “the district court would have had an opportunity to tease out whether the government decided to strike the Hispanic jurors because of these or other distinctions rather than invidious discrimination,” wrote Senior Judge Stephanie K. Seymour in a Nov. 7 order. “By raising them for the first time on appeal, he essentially asks us to presume the latter.”

The U.S. Supreme Court recognized that purposeful race-based discrimination in jury selection is unconstitutional in its 1986 decision of Batson v. Kentucky. In that case, prosecutors dismissed the Black members of a jury pool, leaving an all-white jury to convict the Black defendant. A majority of the Supreme Court found such a practice undermined the public’s confidence in the fairness of the justice system.

As a result, defendants may now raise a “Batson challenge” during jury selection. When a prosecutor seeks to remove a juror of color using a peremptory strike — which typically does not require a reason for the dismissal — the defendant’s Batson challenge triggers a multi-step process. The prosecutor needs to provide any “race-neutral” reason for the strike, after which the trial judge weighs the credibility of the explanation.

The judge then determines whether intentional racial discrimination is likely taking place.

Federal authorities accused Smalley of submitting false information about his income to obtain a mortgage for a nearly-$1 million home in Colorado Springs. At trial, there were 31 members of Smalley’s jury pool, to be narrowed down to 12 jurors and one alternate. U.S. District Court Judge Daniel D. Domenico, who presided over the trial, permitted the prosecution to use six peremptory strikes.

After voir dire, which is the part of jury selection where the parties ask questions of potential jurors, Assistant U.S. Attorney Jeremy Sibert used three of his six peremptory challenges to remove the only Hispanic members of the jury pool. Smalley responded with a Batson challenge for each.

First, Sibert sought to dismiss one man, Juror #15, based on a brief exchange in voir dire. Smalley’s lawyer asked if any juror agreed that the federal government “has too much power,” prompting one person, Juror #30, to agree that the bureaucracy had “grown too much.”

“I agree,” Juror #15 responded.

The defense followed up with another person, Juror #6, who elaborated that the government “is a necessary evil. There needs to be checks and balances. Do I agree with everything? No. Do I disagree with other things? Yes.”

Despite the conversation involving multiple jurors, Sibert sought to only dismiss Juror #15 based on his two-word response to Juror #30’s statement about the bureaucracy.

“I work for the bureaucracy. I felt that could be held against us for being over-vindictive on a prosecution matter,” Sibert said. Juror #6 ultimately served on Smalley’s jury and Juror #30 was the alternate.

Sibert also intended to excuse Juror #7, who “looked young” and was currently unemployed and living at home. Sibert elaborated that Juror #7 “doesn’t have any life experiences” and doubted he would “offer much or has the experience to be on a white-collar mortgage fraud case.” At the same time, Sibert did not attempt to excuse a similar, non-Hispanic juror who was a female college student studying history.

Finally, Sibert sought to strike Juror #1, arguing his demeanor showed a lack of interest in the case.

Domenico denied the Batson challenge, believing the prosecution had provided “legitimate bona fide reasons for those strikes.”

On appeal, Smalley contended the prosecution’s dismissal of the Hispanic jurors was actually rooted in race, particularly with those who had said similar things or had similar backgrounds as the non-Hispanic jurors.

“Not only did the prosecutor exclude all Hispanics in the jury, he used half of his challenges against them,” argued public defender Howard A. Pincus. “The statistical likelihood that this is just happenstance is quite small.”

Judge Harris L Hartz observed during oral arguments that the trial judge’s interpretation of Sibert’s race-neutral justification was important.

“As long as it’s sincere, it’s not a violation of Batson,” Hartz said. “Here, the district court hears these reasons — might have been impressed that the prosecutor came up with these reasons very promptly, which might suggest that it’s sincere because the prosecutor didn’t have to say, ‘Gee, how do I explain my racist strike?'”

Judge Nancy L. Moritz was less comfortable with the prosecutor’s actions. She focused largely on Juror #15, who merely said he agreed with another juror’s observations about the bureaucracy, and Juror #7, whose life experiences appeared to be comparable to those of the non-Hispanic college student.

“Three Hispanic jurors. They compose 10% of the (jury pool). Prosecutor uses 50% of his objections on these three Hispanic jurors,” Moritz said. “That’s good, strong statistical evidence.”

Perhaps, responded Elizabeth S. Ford Milani for the government. But Smalley’s attorney had not made those arguments directly to the trial judge.

“I do think that this court really has underscored the import of bringing these arguments to the district court at the time of the Batson challenge,” she said.

The panel ultimately declined to overturn Smalley’s conviction, faulting him for failing to argue racial discrimination in greater detail during the trial in a way that could have cast doubt on the prosecution’s race-neutral reasoning.

Meanwhile, racial discrimination in jury selection has recently become a focus of Colorado’s state courts. After legislation seeking to crack down on implicit racial bias faltered earlier this year, the state Supreme Court received a proposal that would deter the use of certain justifications for striking jurors of color that, while not explicitly racial, historically correlated with race.

The rule change would also alter the standard for evaluating racial bias in jury strikes, and place additional guardrails around demeanor-based reasons for excusing a juror.

The Supreme Court has opened a public comment period on the rule change and will hold a hearing early next year.

The case is United States v. Smalley.