A Jefferson County judge correctly found no racial discrimination was behind prosecutors’ dismissal of two apparently Hispanic jurors, the state’s second-highest court ruled on Thursday, even though some of the prosecution’s reasons did not match with reality and the judge seemed largely concerned about the “long day” when justifying the women’s removal.

Under longstanding U.S. Supreme Court precedent, intentional racial discrimination in jury selection is unconstitutional. If a prosecutor tries to remove a juror of color, the defendant may raise a “Batson challenge,” named after the Supreme Court decision Batson v. Kentucky. Such a challenge forces the prosecutor to justify the removal, or strike, with a “race-neutral” reason.

Abel Candy Gallegos argued that in his 2020 murder trial, prosecutors struck one Hispanic juror and another juror who appeared Hispanic without a credible race-neutral reason. He alleged the prosecution had misrepresented the women’s answers to questions, which suggested an attempt to conceal racial discrimination.

A three-judge panel for the Court of Appeals rejected those arguments, instead choosing to label the prosecution’s conduct as an “innocent” mistake.

“That is, the record shows it was plausible that the prosecutor might have had difficulty keeping the jurors’ backgrounds straight,” wrote Judge Anthony J. Navarro in the panel’s April 20 opinion.

Gallegos stood trial for the 2018 murder of Cymone Duran. He was tried alongside fellow gang members Alonso Quintana and Rene Francisco Rosales. A jury convicted them and all three men received effective life sentences.

During jury selection, prosecutors Michael Freeman and Tim McCormack attempted to dismiss Juror 101, a Hispanic woman, and Juror 132, who appeared Hispanic with dark hair and “olive skin.”

Juror 101 had just begun a job as a nanny, although she had no issue with taking time off work for the trial. Quintana’s attorney asked District Court Judge Philip J. McNulty to question her, as Quintana thought he recognized her. McNulty declined, noting Juror 101 had not indicated she was familiar with anyone when he inquired of all the jurors earlier.

Juror 132 worked at a children’s center at Red Rocks Community College and she had no work conflicts that would prevent her from serving. She said her workplace has assistants who can substitute “for long periods of time.” She had no concerns about being gone from work and she was “pretty confident” she could handle the grisly details of the case.

The prosecutors moved to strike both women and the defense raised a Baston challenge. For its race-neutral reasoning, the prosecution claimed Juror 101 “really didn’t answer any questions” and that she and Quintana “may have known each other” — an allegation the judge previously declined to explore.

As for Juror 132, “I don’t remember much about her,” one of the prosecutors said, but “she indicated she was concerned about her job” and “concerned about the children.”

Gallegos’ attorney correctly observed that Juror 132 had never said that. Quintana’s lawyer added it was not established that Juror 101 knew any of the defendants.

McNulty, who had opted against exploring whether Juror 101 knew Quintana, now said it was “a very good reason for a challenge” and agreed to dismiss her. For Juror 132, the judge conceded the prosecution’s race-neutral reason was “lacking.”

“She didn’t seem to indicate any more problems,” McNulty said, “but in all fairness, we have been going since 8:00 a.m. It’s 6:09. There were a lot of teachers on the jury.”

Based on that, he concluded, “the Court will accept the race-neutral explanation.”

Gallegos argued to the Court of Appeals that each of the prosecution’s purported race-neutral reasons was faulty and possibly masked racial discrimination. Juror 101 had not shown she would be an unfit juror, he noted, and the prosecutor’s recollection of Juror 132 was wrong.

As for the judge’s implication that he allowed Juror 132’s dismissal because it had been a long day, “Certainly, there is no authority that excuses discriminatory challenges because of trial fatigue,” wrote public defender Karen Mahlman Gerash.

The appellate panel ruled that the removal of Juror 101 was “supported by the record” through the uninvestigated allegation that Quintana might have recognized her. For Juror 132, the panel acknowledged a prosecutor’s mischaracterization of a juror’s statements can suggest an ulterior motive.

But even though the prosecutor misrepresented what Juror 132 said, his reason was “nonetheless sincere.”

It had been “a long day, there were many jurors with a similar background to Juror 132, and the parties had limited time to question her,” Navarro explained. “The record supports the court’s implicit finding that the prosecutor’s explanation was due to a mistaken recollection rather than an attempt to conceal racial discrimination.”

The case is People v. Gallegos.