Date: 07-31-2015

Case Style: The People of the State of Colorado, v. Derrick Demetrus Wilson.

Case Number: 12SC1027

Judge: JUSTICE BOATRIGHT

Court: Supreme Court of the State of Colorado

Plaintiff's Attorney: Cynthia H. Coffman, Joseph G. Michaels

Defendant's Attorney: Carolyn A. Blanchard

Description: In August 2008, the Denver Police Department linked Wilson to a five-year-old
cold case by matching his DNA to evidence recovered from the victim. As a result, the
People charged Wilson with sexual assault, unlawful sexual contact, second-degree
kidnapping, and three habitual offender counts. Wilson pleaded not guilty. When jury
selection began, the court asked prospective jurors about their ability to serve on a jury,
whether they knew any of the witnesses, and whether they could follow the court’s
instructions. The prosecutor then questioned prospective jurors about their impressions
of DNA evidence, whether a victim’s inability to identify her assailant would give them
pause, and other matters related to the prospective jurors’ attitudes toward Wilson’s
case.
¶4 Some members of the venire expressed misgivings about the reliability of DNA
evidence; others were suspicious that the victim of a crime could not identify the
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perpetrator. Mr. E., a black man against whom the prosecutor exercised the challenged
peremptory strike, had the following conversation with the prosecutor:
The prosecutor: Mr. E., . . . [d]o you have confidence in scientific evidence?
Mr. E.: Yes, I do.
The prosecutor: And would it cause you any pause that the witness may not be able to identify her attacker?
Mr. E.: That would.
The prosecutor: Okay. Let’s talk about that a little bit. Do you think there are crimes that are committed when nobody is around?
Mr. E.: Yes.
The prosecutor: Okay. And let’s say, for example somebody broke into your house, you weren’t there, so you became the victim of a burglary. But you weren’t there, so you don’t know who it was.
Mr. E.: Okay.
The prosecutor: If that person left a fingerprint or some DNA evidence behind, would you be comfortable in prosecuting that case?
Mr. E.: I think I would in that case, yes.
The prosecutor: Let’s assume that in this case, the surprise—it’s dark, and people don’t get a good enough look at the attacker to make a positive identification. Does that . . . in and of itself make you think that we can’t prove these charges?
Mr. E.: Not in and of itself, no.
The prosecutor: Okay. If we can prove to you beyond a reasonable doubt identification via scientific evidence, not through eyewitness testimony, and you, of course, have to weigh the value of our evidence, but if we can do that, would you be comfortable in returning a verdict of guilty?
Mr. E.: I believe so.
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¶5 After briefly questioning the next prospective juror, the prosecutor also asked
Mr. N. about his confidence in DNA. Mr. N. initially stated that “there is a margin of
error with DNA that is not beyond reasonable.” But when the prosecutor asked if he
could approach the process “with an open mind” and “be convinced that DNA is
valuable evidence,” Mr. N. replied that he “could be convinced if the margin of error is
small enough.”
¶6 After both sides finished questioning the jury, the prosecutor used her first
peremptory strike to excuse Mr. E. Wilson’s defense counsel immediately requested a
bench conference, where he challenged the strike under Batson and argued that the
prosecutor struck Mr. E. because of his race. The prosecutor responded by explaining
her belief that Mr. E. might be unwilling to find Wilson guilty based on DNA evidence
alone:
The biggest concern was that [Mr. E.] was very uncomfortable with the lack of eyewitness identification. That he was not sure about the science of DNA, and if the victim could not identify someone . . . the DNA in and of itself is not enough. I think I’ve already said this, but it was his discomfort with the DNA evidence and his concern about the ability to return a guilty verdict if, in fact, the victim could not do an eyewitness identification in the case.
The defense countered that Mr. E. had indicated “the exact opposite”: that he was
“comfortable” with DNA evidence and the lack of eyewitness identification. The court
accepted the prosecutor’s justification and denied Wilson’s Batson challenge, stating:
[I]n terms of the DNA, he kind of waffled back and forth. But what I heard specifically on the ID issue is that there was a general question where all the jurors said, Yeah, cases get decided every day, burglary for example, and [the prosecutor] used this with a different juror particularly; I can’t remember this juror.
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He hesitated for an extended period, and when responding to the question about the ID and the inability of the complaining witness to make an ID of the suspect here, he indicated some concern or question about it.
The Court is satisfied that the prosecution has stated an appropriate basis to excuse Mr. [E.] on that basis.
The prosecutor did not use any more peremptory challenges. Wilson, meanwhile
exercised all six peremptory challenges to which he was statutorily entitled. See
§§ 16-10-104, -105, C.R.S. (2014). Each time Wilson used a peremptory challenge, the
prosecutor accepted the jury panel. Through this process, twelve jurors and one
alternate juror were selected. The record does not indicate the racial makeup of the
jury.
¶7 Over the course of the five-day trial, the defense challenged the prosecutor’s
theory that Wilson was the attacker. Although a prosecution expert testified that there
was a less than one-in-fifteen-trillion chance that the DNA found on the victim
belonged to someone unrelated to Wilson, Wilson disputed the accuracy of these
results. He also questioned witnesses about the victim’s inability to identify her
assailant. She could describe the man who attacked her only by his race, clothing, and
car, and she had initially identified another man as her assailant, later telling police that
a third man, whom she saw in a photographic lineup, had features similar to her
assailant’s. The jury nevertheless found Wilson guilty of sexual assault, unlawful
sexual contact, and second-degree kidnapping. At a later hearing, the court designated
Wilson a sexually violent predator, convicted him of three habitual offender counts in
addition to the three substantive counts, and sentenced him to consecutive prison terms
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of ninety-six-years-to-life for sexual assault and ninety-six years for second-degree
kidnapping, to run concurrently with a sentence of twenty-four-years-to-life for
unlawful sexual contact.
¶8 On appeal, the court of appeals reviewed for clear error the trial court’s
determination that Wilson failed to prove racial discrimination in the prosecutor’s
peremptory strike of Mr. E. Wilson, ¶ 5. The court of appeals noted that the record
refuted both of the prosecutor’s stated reasons for the strike, observing that Mr. E. had
stated during voir dire that he was confident in DNA evidence and willing to return a
guilty verdict in the absence of eyewitness identification. Id. at ¶¶ 16–17. According to
the court, this inconsistency “necessarily establishe[d] that those explanations were
pretextual and were actually based on Mr. E.’s race.”1 Id. at ¶ 18. The court held that
the strike violated the Equal Protection Clause as interpreted in Batson and then
decided, as a matter of first impression in Colorado, that such an error is structural. Id.
at ¶ 28. As a result, the court reversed the judgment of conviction and remanded
Wilson’s case for a new trial. Id. at ¶ 52.
¶9 We granted the People’s petition for certiorari to consider the appropriate
resolution of a Batson objection where the prosecutor’s stated explanation for the
1 The court of appeals footnoted its conclusion that a Batson violation occurred with a codicil stating, “[W]e do not also conclude that the prosecutor acted out of racial animus. Rather, we only determine that the prosecutor’s race-neutral explanations for challenging Mr. E. were not supported by the record.” Id. at ¶ 28 n.2. We defer to the trial court’s conclusion that the prosecutor did not strike Mr. E. because of the color of his skin and therefore do not consider whether racial animus inheres in every racially motivated decision.
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challenged peremptory strike is inconsistent with the record.2 We begin our analysis
with an overview of the three-step Batson test, which is meant to uncover
unconstitutional discrimination in the exercise of peremptory challenges. See Batson,
476 U.S. at 96–98. Next, we focus on the final and dispositive step of the Batson
analysis, where the trial court must determine whether the challenger has established
purposeful discrimination. See id. at 98. Then, turning to the facts of the instant case,
we conclude that the trial court did not err when it accepted the prosecutor’s
race-neutral explanation for peremptorily striking Mr. E. and denied Wilson’s Batson
challenge.3 We therefore reverse the decision of the court of appeals.
II. Batson Prohibits Purposeful Racial Discrimination
¶10 In Batson, the U.S. Supreme Court recognized that “the Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on account of their race or on
the assumption that black jurors as a group will be unable impartially to consider the
2 Specifically, we granted certiorari to consider the following three issues: 1. Whether the court of appeals erred in applying Batson v. Kentucky, 476 U.S. 79 (1986), by concluding that because a prosecutor’s race-neutral explanations for challenging a prospective juror were inconsistent with the record, the record necessarily established that those explanations were pretextual. 2. Whether the court of appeals failed to give deference to the trial court’s two independent reasons for determining that the trial prosecutor did not exercise a peremptory challenge on impermissible grounds. 3. Whether Batson violations are subject to harmless error analysis or constitute structural error. 3 As a result of our conclusion that no Batson violation occurred, we do not address whether such a violation constitutes structural error.
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State’s case against a black defendant.” 476 U.S. at 89. To implement this directive, the
Court laid out a three-step analysis intended to uncover racial discrimination in the
exercise of peremptory challenges by the prosecutor in a criminal case.4 Id. at 96–98. If
the defendant can make out a prima facie case that the prosecutor struck a prospective
juror on the basis of race, then, at the second step, the burden of production shifts to the
prosecutor to proffer a race-neutral reason for excusing the prospective juror. Id. at
96–97. After the defendant has a chance to rebut the prosecutor’s explanation, the trial
court determines, at the third step, whether the defendant has established purposeful
discrimination by the prosecutor. Id. at 98.
¶11 Wilson contends that the trial court committed clear error in its step-three
ruling because both the trial court and the prosecutor mischaracterized Mr. E.’s voir
dire, raising an inference that the prosecutor struck Mr. E. because of his race. Wilson
urges us to adopt and apply the court of appeals’ rule that, where the record refutes the
prosecutor’s asserted race-neutral reasons for striking a prospective juror, the
discrepancy “suggest[s] pretext sufficient for finding discriminatory purpose.” See
Wilson, ¶ 15. In some cases, however, a discrepancy between the prosecutor’s
justification and the record of voir dire can reflect a mistaken recollection rather than
purposeful discrimination. E.g., Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1547 (10th 4 The Supreme Court has since extended Batson to apply to situations where the challenger does not share the same race as the subject of the strike, Powers v. Ohio, 499 U.S. 400, 406 (1991); where the challenger is a civil litigant, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991), or a criminal defendant, Georgia v. McCollum, 505 U.S. 42, 59 (1992); and where the challenger alleges gender discrimination, J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 129 (1994).
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Cir. 1997), abrogated on other grounds by Kimel v. Fla. Bd. of Regents, 528 U.S. 62
(2000). Therefore, after we describe the standard of review, we begin our analysis with
an overview of the quantum of proof required to establish purposeful discrimination at
the third step of the Batson analysis. Next, we examine the trial court’s ruling in the
instant case and determine that, under the deferential standard of review required at
Batson’s third step, the trial court did not clearly err by accepting the prosecutor’s
race-neutral reason for excusing Mr. E. from the jury panel.
A. Standard of Review
¶12 The standard of review “depends upon which step of the Batson analysis is
before us.” Valdez v. People, 966 P.2d 587, 590 (Colo. 1998). The trial court in this case
heard the prosecutor’s race-neutral explanation and ruled on the ultimate issue of
purposeful discrimination. The question of whether Wilson established a prima facie
case at step one is therefore moot. People v. Cerrone, 854 P.2d 178, 186 n.13 (Colo. 1993)
(citing Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion)). Nor is step
two before us, because Wilson concedes that the prosecutor offered a race-neutral
explanation. We therefore focus on the third and final step of the Batson analysis:
whether the opponent of the peremptory challenge proved purposeful discrimination.
Batson, 476 U.S. at 98.
¶13 Describing step three, the Batson Court analogized to the standard of proof for
sex discrimination under Title VII. See id. at 98 n.21 (citing Anderson v. City of
Bessemer City, 470 U.S. 564, 575–76 (1985)). The Court stated that a trial court’s
step-three finding as to the existence of discrimination is due “great deference,” as it
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“turn[s] on evaluation of credibility.” Id. The inquiry at step three requires the trial
court to decide whether to believe counsel’s race-neutral explanation for a peremptory
challenge. Hernandez, 500 U.S. at 365. “[T]he best evidence often will be the demeanor
of the attorney who exercises the challenge,” evaluation of which lies “‘peculiarly
within a trial judge’s province.’” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 428
(1985)). We therefore review the trial court’s factual determination at step three only for
clear error. Snyder v. Louisiana, 552 U.S. 472, 477 (2008); accord Valdez, 966 P.2d at 590.
B. Errors in Recollection at Batson’s Third Step
¶14 At step three, “the critical question” becomes “the persuasiveness of the
prosecutor’s justification for h[er] peremptory strike.” Miller-El v. Cockrell (Miller-El I),
537 U.S. 322, 338–39 (2003). The trial court must gauge the prosecutor’s credibility by
evaluating her demeanor, how reasonable or improbable her explanations are, and
whether her “proffered rationale has some basis in accepted trial strategy.” Id. at 339.
If the prosecutor’s asserted race-neutral reasons do not hold up, and “the racially
discriminatory hypothesis” better fits the evidence, then the trial court must uphold the
Batson challenge. See Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 265–66 (2005)
(concluding, based on historical patterns of practice and the disparate treatment of
black and white veniremembers during jury selection, that the prosecutor struck black
potential jurors because of their race). Though the trial court must evaluate all relevant
facts, “the ultimate burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995).
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¶15 It is true that a prosecutor’s mischaracterization of a prospective juror’s voir dire
testimony may indicate an ulterior, racial motive. See, e.g., Miller-El II, 545 U.S. at 244
(concluding that counsel misrepresented a veniremember’s inability to vote for death to
disguise “an ulterior reason for keeping [him] off the jury”). Yet dissonance between a
prosecutor’s race-neutral explanation and the transcript of voir dire does not prove that
the prosecutor lied to conceal racial discrimination. See, e.g., Ford v. State, 1 S.W.3d
691, 694 (Tex. Crim. App. 1999) (holding that proof that an explanation was incorrect is
insufficient to satisfy a Batson challenger’s burden of persuasion). Most courts find
other indications of racial motivation before concluding that race-neutral explanations
belied by the record are pretextual. See, e.g., Johnson v. Vasquez, 3 F.3d 1327, 1330 (9th
Cir. 1993).
¶16 For example, in Johnson, the Ninth Circuit observed that the prosecutor initially
justified his strike of a minority veniremember by pointing to defense counsel’s strike of
another minority veniremember, suggesting that race factored into the prosecutor’s
decision-making. Id. at 1330. The prosecutor also gave four, facially race-neutral
reasons for his strike. Id. Only after the court noted that the prosecutor’s initial
explanation raised “a strong indication” of racial bias did it compare the record to the
prosecutor’s other stated reasons. Id. at 1329, 1330. Then, concluding that the record
either undermined or did not support each of the prosecutor’s four race-neutral
reasons, the court held that those reasons were pretext for racial discrimination. Id. at
1330; see also Flowers v. State, 947 So. 2d 910, 923–26 (Miss. 2007) (holding that the trial
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court erred in denying the defendant’s Batson challenge where the prosecutor’s main
reason for striking a black veniremember applied with equal force to a white
veniremember whom the prosecutor accepted and the record refuted another of the
prosecutor’s reasons for striking the black veniremember).
¶17 Standing alone, however, proffered reasons that are contradicted by the record
do not imply pretext but can instead reflect mistaken recollection. In Hurd, the Tenth
Circuit explained that a shortcut linking a mistaken reason to a pretextual reason
conflates the second and third steps of the Batson analysis. 109 F.3d at 1547. To pass
muster at step two, the strike proponent’s explanation need not be “persuasive, or even
plausible,” as long as it is race-neutral. Purkett, 514 U.S. at 768. But at step three, the
challenger must “convince the [trial] court that the reason proffered for the strike was
unworthy of belief and that the strike was racially motivated.” Hurd, 109 F.3d at 1548.
In Hurd, counsel justified his strike of the only black veniremember by stating that the
man previously found for a railroad employee in a civil case. Id. at 1546–47. As
opposing counsel and the trial court immediately pointed out, however, the
veniremember had stated that he served on a civil jury that reached a verdict, but he
never said that the jury had rendered a verdict for the plaintiff. Id. at 1547. The trial
court, having observed the attorney’s demeanor “at length,” determined that, despite
the attorney’s error in recollection, “he had truthfully represented his belief . . . and had
not struck the [prospective] juror because of the color of his skin.” Hurd v. Pittsburg
State Univ., 892 F. Supp. 245, 248 (D. Kan. 1995). The Tenth Circuit deferred to the trial
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court’s finding that counsel for the university made an honest mistake and held that the
plaintiff had not proved facts sufficient to establish purposeful discrimination. Hurd,
109 F.3d at 1548.
¶18 The court of appeals’ contrary view in this case, which labels as pretext any
justification unsupported by the record, elevates an appellate court’s review of a cold
record above the trial court’s firsthand observation of the proceedings and the attitude
of the participants. Only the trial court can assess non-verbal cues, such as hesitation,
voice inflection, and facial expressions, that are not recorded on a transcript. The court
of appeals’ method also creates a presumption that arrogates the trial court’s step-three
duty to distinguish between sham excuses that violate the Equal Protection Clause and
bona fide, race-neutral explanations for a peremptory strike. See Hernandez, 500 U.S. at
365; Batson, 476 U.S. at 98 n.21. Such a regime is at odds with the U.S. Supreme Court’s
Batson jurisprudence, which acknowledges the “pivotal role” of the trial court in
evaluating the credibility and demeanor of both the prosecutor and the prospective
juror. Snyder, 552 U.S. at 477; see also Valdez, 966 P.2d at 599 (Kourlis, J., dissenting)
(“Discrimination is as sly as it is insidious. It lives in inference, tone, and gesture as
much as in action.”). The Batson analysis exists to expose and prevent racial
discrimination in jury selection, “not to test [a] prosecutor’s memory.” People v. Jones,
247 P.3d 82, 99 (Cal. 2011). When an appellate court presumes racial motivation any
time a prosecutor misremembers a prospective juror’s voir dire testimony, it discounts
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the possibility that the error was a result of an innocent transposition—and that race did
not motivate the strike.
C. The Prosecutor Did Not Base Her Peremptory Strike on the Prospective Juror’s Race
¶19 The prosecutor in this case explained that she excused Mr. E. for two facially
race-neutral reasons: (1) his “discomfort” with DNA evidence and (2) his inability to
return a guilty verdict without eyewitness identification. In rebuttal, the defense
argued that Mr. E.’s responses indicated that he was both comfortable with DNA and
“would have no problem with the alleged victim not being able to identify” her
attacker. After listening to the prosecutor’s explanation and Wilson’s rebuttal, the trial
court noted its own impression of Mr. E. The court observed that Mr. E. “waffled back
and forth” in response to the prosecutor’s questions about DNA evidence and
“hesitated for an extended period” before answering questions about the lack of
eyewitness identification. Although the trial court never uttered the magic words “no
purposeful discrimination,” it concluded that the prosecutor had articulated “an
appropriate basis to excuse [Mr. E.].” The court therefore denied Wilson’s Batson
challenge.
¶20 The court of appeals disagreed and held that the trial court erred by denying
Wilson’s Batson challenge because the prosecutor’s account of Mr. E.’s responses
conflicted with the transcript of voir dire. Wilson, ¶¶ 16–17. While the court of appeals
correctly noted the variance, it failed to credit the trial court’s finding that Mr. E.
“hesitated for an extended period” because it concluded that the record refuted the
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court’s other finding: that Mr. E. “waffled back and forth” with respect to his confidence
in DNA evidence. Id. at ¶ 19. The court of appeals decided that the incongruity
between the transcript of Mr. E’s responses and the prosecutor’s account of voir dire
indicated a discriminatory purpose behind the prosecutor’s peremptory strike of Mr. E.
Id. at ¶ 18.
¶21 The record of voir dire does not, however, carry the weight that the court of
appeals assigned to it. Asked about the persuasiveness of DNA evidence and the
absence of eyewitnesses to a crime, Mr. E.’s answers arguably indicated skepticism: He
gave appropriate responses, but used qualifiers like, “in that case,” “[n]ot in and of
itself,” and, “I believe so.” Furthermore, he answered affirmatively when the
prosecutor asked him if a witness’s inability to identify her attacker would “cause [him]
any pause.” The prosecutor interpreted these responses as indications that Mr. E. was
“uncomfortable” with DNA evidence and might not be willing to return a guilty verdict
if the victim could not identify her attacker. Her intuition that Mr. E. might not be a
suitable juror in a case based extensively on DNA evidence, where the victim could not
identify the defendant, was both reasonable and grounded in trial strategy. See
Miller-El I, 537 U.S. at 339 (“Credibility can be measured by . . . how reasonable, or how
improbable, the explanations are[] and by whether the proffered rationale has some
basis in accepted trial strategy.”); cf. Batson, 476 U.S. at 97 (emphasizing that “the
prosecutor’s explanation need not rise to the level justifying exercise of a challenge for
cause”).
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¶22 Wilson nevertheless claims that the prosecutor’s reasons for excusing Mr. E.
better fit other prospective jurors, like Mr. N., who was leery of the “margin of error
with DNA.” At the time of the Batson challenge, Wilson argued only that, contrary to
the prosecutor’s explanation, Mr. E. was comfortable with DNA evidence and the lack
of eyewitness identification. No further record was made. Wilson never claimed that
the prosecutor treated similarly situated veniremembers differently based on their race,
and we decline to resolve such a claim raised for the first time before this court. Valdez,
966 P.2d at 594; see also Snyder, 552 U.S. at 483 (“[A] retrospective comparison of jurors
based on a cold appellate record may be very misleading when alleged similarities were
not raised at trial.”). At most, the record suggests that the prosecutor may have
misremembered Mr. E.’s voir dire.
¶23 The prosecutor’s possible erroneous recollection does not, however, evince the
purposeful discrimination that Batson prohibits. See 476 U.S. at 98. The prosecutor
may have made a mistake, but that is insufficient to prove that race motivated her
decision to strike Mr. E. Cf. Hurd, 109 F.3d at 1548. Having observed the prosecutor’s
demeanor firsthand, the trial court concluded that she stated “an appropriate basis” for
excusing Mr. E. The court thus implicitly found that the prosecutor was credible and
that her race-neutral explanation for excusing Mr. E. was sincere. See Miller-El I, 537
U.S. at 338–39. These findings deserve deference because “[t]he trial judge is the
judicial officer who watches and listens as voir dire unfolds, and who can discern the
presence or absence of discriminatory intent.” Valdez, 966 P.2d at 599 (Kourlis, J.,
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dissenting). Although the prosecutor’s justification may appear discordant with the
record, the trial court in this case did not commit clear error by believing her
race-neutral explanation and denying Wilson’s Batson challenge.
III. Conclusion
¶24 Accordingly, we reverse the judgment of the court of appeals and remand to
that court for consideration of the remaining issues on appeal. We hold that a
prosecutor’s error in recollection does not compel a finding of purposeful
discrimination in contravention of the Equal Protection Clause as interpreted in Batson.
Rather, the third step of the Batson analysis requires the trial court to assess the
credibility of the proponent of a peremptory strike and determine whether to believe
her race-neutral explanation. Unless the opponent of the strike can prove purposeful
discrimination, the trial court should deny the Batson challenge. On appeal, a
reviewing court should defer to the trial court’s credibility determination and reverse
only for clear error.
JUSTICE MÁRQUEZ concurs in part and dissents in part.
JUSTICE MÁRQUEZ, concurring in part and dissenting in part.
¶25 I agree with the majority that a prosecutor’s inaccurate recollection of a potential
juror’s voir dire response is insufficient, standing alone, to prove that the prosecutor’s
peremptory strike of that juror was racially motivated. See maj. op. ¶¶ 2, 24. I also
agree with the majority that the court of appeals erred by concluding that the record’s
refutation of the prosecutor’s proffered race-neutral reason for the strike necessarily
established a Batson violation. See id. at ¶ 18. I write separately, however, because the
record before us does not demonstrate that the trial court actually conducted step three
of the Batson analysis. When a trial court conducts an inadequate Batson analysis, “the
appropriate procedure is to remand the case for more detailed findings by the trial
court.” Craig v. Carlson, 161 P.3d 648, 654 (Colo. 2007); see also People v. Rodriguez,
2015 CO 55, ¶ 22, __ P.3d __. Unlike the majority, I would remand this case for a Batson
hearing and more particular findings. I therefore respectfully concur in part and
dissent in part.
¶26 I begin with a brief overview of the facts of this case before explaining why I
believe that the record before us warrants a remand for a Batson hearing.
¶27 During voir dire, the prosecutor asked prospective jurors a series of questions to
elicit whether they could return a guilty verdict based on a DNA match if the alleged
rape victim could not identify her attacker. When the prosecutor reached Mr. E., who is
black, she asked him, “Do you have confidence in scientific evidence?” Mr. E.
responded, “Yes, I do.” He admitted that the lack of eyewitness identification might
2
give him pause, but when the prosecutor asked him whether he could find the
defendant guilty if the People proved their case using scientific evidence, Mr. E. replied,
“I believe so.”
¶28 The prosecutor used only one peremptory strike, which she exercised against
Mr. E. Defense counsel immediately raised a Batson challenge. The prosecutor
explained that she struck Mr. E. because of his “discomfort with the DNA evidence and
his concern about the ability to return a verdict of guilty if, in fact, the victim could not
do an eyewitness identification.” Defense counsel pointed out that Mr. E. in fact “said
the exact opposite” about DNA evidence. The trial court nevertheless excused Mr. E.
¶29 To use a peremptory strike to remove a potential juror solely because of that
juror’s race violates the Equal Protection Clause of the Fourteenth Amendment. Batson
v. Kentucky, 476 U.S. 79, 89 (1986). Batson’s three-step analysis is designed to uncover
whether a peremptory strike reflected “purposeful discrimination.”1 Id. at 96–98. If the
record of voir dire is clear, an appellate court can review whether a trial court correctly 1 “Purposeful discrimination” in this context does not require racial animus, i.e., ill will or animosity toward a racial minority, see Black’s Law Dictionary 107 (10th ed. 2014). However, a strike is “racially motivated” where it is based on the juror’s race—for example, striking a black veniremember in the hopes of increasing the likelihood of a favorable verdict. See Batson, 476 U.S. at 89 (“Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” (internal quotation marks omitted)); United States v. Brown, 817 F.2d 674, 676 (10th Cir. 1987) (finding an Equal Protection violation where the government exercised peremptory challenges against black veniremembers because the prosecutor “simply presumed from his previous experience” that black jurors would be influenced by a black defense counsel to acquit the defendant).
3
performed a Batson analysis. See, e.g., Snyder v. Louisiana, 552 U.S. 472 (2008). But
where the record does not present a clear picture, a reviewing court must be cautious
when affirming or reversing the trial court, given that “a cold appellate record may be
very misleading.” Id. at 483.
¶30 The trial court’s ruling on Wilson’s Batson challenge was cursory. The court
stated that, “in terms of the DNA, [Mr. E.] kind of waffled back and forth.” The court
also observed that Mr. E. “hesitated for an extended period” and “indicated some
concern or question” about the lack of witness identification. The court then summarily
concluded that it was “satisfied that the prosecution [] stated an appropriate basis to
excuse” Mr. E.
¶31 The majority correctly concludes that our focus here must be on the third step of
the Batson analysis: the trial court’s determination of the credibility of the proffered
race-neutral explanation for the strike, and its finding whether the opponent has
established purposeful discrimination. Maj. op. ¶ 12; see also Miller-El v. Cockrell, 537
U.S. 332, 339 (2003); Batson, 476 U.S. at 98 & n.21. The record before us, however, does
not establish that the trial court conducted this third step. The majority, in my view,
draws unsupported inferences from an ambiguous record. I believe that this ambiguity
warrants a remand.
¶32 First, the trial court’s credibility evaluation is suspect. “[A] trial court’s
step-three finding as to the existence of discrimination is due ‘great deference’”
4
precisely because it “turn[s] on evaluation of credibility.”2 Maj. op. ¶ 13 (quoting
Batson, 476 U.S. at 98 n.21); see also Miller-El, 537 U.S. at 338–39. “[T]he challenger
must ‘convince the [trial] court that the reason proffered for the strike was unworthy of
belief . . . .’” Maj. op. ¶ 17 (quoting Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1548
(10th Cir. 1997)).
¶33 Here, the court did not, and indeed could not, evaluate the prosecutor’s
credibility because it had the same inaccurate recollection as the prosecutor regarding
Mr. E.’s comfort with DNA evidence. The trial court thus could not tell if the
prosecutor’s proffered reason “was unworthy of belief” because the court itself did not
correctly recall Mr. E.’s statements. When defense counsel tried to point out that
Mr. E.’s answers indicated the “exact opposite” of the prosecutor’s recollection, the
court cut off discussion and made its ruling. Defense counsel was given no opportunity
to establish that the stated basis was, in fact, refuted by Mr. E.’s actual statements.
Although the court’s observation that Mr. E. hesitated before answering questions is
precisely the type of finding that trial courts should make when considering a
proponent’s reason for striking a juror, the court’s confusion about Mr. E.’s actual
statements calls into question the accuracy of the trial court’s memory of voir dire.
2 The majority ascribes to the trial court a “pivotal role” in evaluating “the credibility and demeanor of both the prosecutor and the prospective juror.” Maj. op. ¶ 18 (emphasis added) (citing Snyder, 552 U.S. at 477). While Snyder supports the proposition that a trial court must evaluate the challenged juror’s demeanor to determine whether the juror demonstrated the proffered basis for the strike, it is the credibility of the proponent of the strike—not the veniremember—that is at issue at Batson’s step three. See Snyder, 552 U.S. at 477; see also Miller-El, 537 U.S. at 338–39.
5
¶34 Second, the court did not actually find that the prosecutor did not remove Mr. E.
based on his race. As the majority points out, “the trial court never uttered the magic
words ‘no purposeful discrimination,’” maj. op. ¶ 19; instead, the court merely
concluded that the prosecutor “stated an appropriate basis” for the strike. But a
proponent’s “appropriate basis” (i.e., race-neutral reason) is a Batson step-two finding.
Nothing in the record confirms that the trial court reached step three, considered the
prosecutor’s credibility, and actually found that there was no purposeful
discrimination.
¶35 That the trial court did not complete step three of the analysis would be reason
enough, in my view, to remand for a proper Batson hearing. However, my conclusion
that this case warrants further scrutiny is bolstered by the fact that another
veniremember, who voiced real skepticism about DNA evidence, was in fact empaneled
with the prosecution’s assent. During voir dire, Mr. M. initially stated that he believed
DNA evidence works. The prosecutor asked him whether he could return a guilty
verdict based on DNA evidence, and he responded, “I think I can.” However, under
defense counsel’s questioning, Mr. M. elaborated that he believed that the DNA in
Wilson’s case was suspect because it was from 2003, more than six years before the trial:
¶36 But from 2003, there is a problem, you know. DNA did not work that well
because if you have DNA now, why should you go back 2003 [sic] until today to see if
he’s guilty? You know. So I think maybe that there was a problem with the DNA.
6
¶37 The majority acknowledges that where a proponent’s race-neutral reason for
striking a member of a racial minority applies “with equal force” to another,
unchallenged veniremember, it raises the question of racial bias. Maj. op. ¶ 16 (citing
Flowers v. State, 947 So. 2d 910, 923–26 (Miss. 2007)). I recognize that it can be a tricky
endeavor to conduct a comparative juror analysis on a cold appellate record to resolve
whether the prosecutor treated similarly situated veniremembers differently based on
their race. Maj. op. ¶ 22. But see Snyder, 552 U.S. at 483–85 (conducting a retrospective
comparison of potential jurors and concluding that the prosecution’s proffered
race-neutral explanation gave rise to an inference of discriminatory intent where
similarities between the jurors were explored at trial). Yet this is precisely why this case
warrants a remand. Did the prosecutor treat a similarly situated juror differently than
Mr. E.? Was the prosecutor’s proffered race-neutral reason pretextual, or did the trial
court find that the prosecutor was credible? Most importantly, did the trial court
actually find that there was no purposeful discrimination? Absent a remand for a
Batson hearing, we cannot know.
¶38 After accepting the trial court’s perfunctory conclusion that the prosecutor
articulated “an appropriate basis” to strike Mr. E., the majority concludes that, “[a]t
most, the record suggests that the prosecutor may have misremembered Mr. E.’s voir
dire.” Maj. op. ¶ 22. I disagree. The record suggests that the prosecutor removed
Mr. E. on a basis that applied with equal, if not greater, force to another juror whom the
prosecution allowed to remain on the jury. Perhaps the discrepancy between the
7
prosecutor’s recollection and Mr. E.’s actual voir dire responses reflects no more than
mistaken recollection. But on this record, we simply cannot tell. That the prosecution
chose not to strike another juror who actually did express uncertainty about DNA
evidence calls into question the validity of the prosecutor’s explanation for striking
Mr. E. Importantly, the record before us does not conclusively show that the trial court
actually completed step three of the Batson analysis. Indeed, the trial court could not
have completed this step, given that it accepted the prosecutor’s mischaracterization of
Mr. E.’s statements.
¶39 Because “the proper remedy for an inadequate inquiry into a Batson challenge at
the time of jury selection is to remand the case to the trial court with directions to
conduct the three-part Batson analysis and make the required factual findings,”
Rodriguez, ¶ 22, I would remand this case. Therefore I respectfully concur in part and
dissent in part.

The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
2015 CO 54M
Supreme Court Case No. 12SC1027 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA788
Petitioner: The People of the State of Colorado, v. Respondent: Derrick Demetrus Wilson.
Judgment Reversed en banc June 29, 2015
Modified Opinion. Marked revisions shown (pages 3 and 17)
July 20, 2015
Attorneys for Petitioner: Cynthia H. Coffman, Attorney General Joseph G. Michaels, Assistant Attorney General Denver, Colorado
Attorney for Respondent: Carolyn A. Blanchard Crested Butte, Colorado
JUSTICE BOATRIGHT delivered the Opinion of the Court. JUSTICE MÁRQUEZ concurs in part and dissents in part.
2
¶40 This case concerns the appropriate resolution of a Batson challenge. The
petitioner, Derrick Demetrus Wilson, objected to the prosecutor’s use of a peremptory
strike to excuse a black veniremember and argued that the strike violated the Equal
Protection Clause of the Fourteenth Amendment as interpreted in Batson v. Kentucky,
476 U.S. 79 (1986). The trial court then allowed the prosecutor to articulate a
race-neutral reason for the strike. She explained that the prospective juror appeared
uncomfortable with DNA evidence and the lack of eyewitness identification. Defense
counsel responded that the prospective juror’s responses indicated “the exact opposite,”
but the trial court accepted the prosecutor’s explanation and denied Wilson’s Batson
challenge. The jury later found Wilson guilty of sexual assault, second-degree
kidnapping, and unlawful sexual contact. Wilson appealed, and the court of appeals
held that the trial court clearly erred in denying his Batson challenge. People v. Wilson,
2012 COA 163M, ¶ 3, ___ P.3d ___, as modified on denial of reh’g (Nov. 29, 2012). The
court of appeals noted that the record refuted the prosecutor’s characterization of the
prospective juror’s voir dire and concluded that this inconsistency “necessarily
establishe[d]” a Batson violation. Id. at ¶ 18.
¶41 We granted the People’s petition for certiorari to review the court of appeals’
determination of clear error, and we now reverse. We hold that a prosecutor’s error in
recollection does not compel a finding of purposeful discrimination in contravention of
the Equal Protection Clause as interpreted in Batson. Rather, the Batson analysis
requires the trial court to assess the credibility of the proponent of a peremptory strike
and determine whether to believe her race-neutral explanation. Unless the opponent of
3
the strike can prove purposeful discrimination, the trial court should deny the Batson
challenge. On appeal, a reviewing court should defer to the trial court’s credibility
determination and reverse only for clear error. Because the trial court in this case did
not clearly err by denying Wilson’s Batson challenge, we reverse the judgment of the
court of appeals and remand the case to that court with instructions to return it to the
trial court for further proceedings consistent with this opinionfor consideration of the
remaining issues on appeal.
I. Facts and Proceedings Below
¶42 In August 2008, the Denver Police Department linked Wilson to a five-year-old
cold case by matching his DNA to evidence recovered from the victim. As a result, the
People charged Wilson with sexual assault, unlawful sexual contact, second-degree
kidnapping, and three habitual offender counts. Wilson pleaded not guilty. When jury
selection began, the court asked prospective jurors about their ability to serve on a jury,
whether they knew any of the witnesses, and whether they could follow the court’s
instructions. The prosecutor then questioned prospective jurors about their impressions
of DNA evidence, whether a victim’s inability to identify her assailant would give them
pause, and other matters related to the prospective jurors’ attitudes toward Wilson’s
case.
¶43 Some members of the venire expressed misgivings about the reliability of DNA
evidence; others were suspicious that the victim of a crime could not identify the
perpetrator. Mr. E., a black man against whom the prosecutor exercised the challenged
peremptory strike, had the following conversation with the prosecutor:
4
The prosecutor: Mr. E., . . . [d]o you have confidence in scientific evidence?
Mr. E.: Yes, I do.
The prosecutor: And would it cause you any pause that the witness may not be able to identify her attacker?
Mr. E.: That would.
The prosecutor: Okay. Let’s talk about that a little bit. Do you think there are crimes that are committed when nobody is around?
Mr. E.: Yes.
The prosecutor: Okay. And let’s say, for example somebody broke into your house, you weren’t there, so you became the victim of a burglary. But you weren’t there, so you don’t know who it was.
Mr. E.: Okay.
The prosecutor: If that person left a fingerprint or some DNA evidence behind, would you be comfortable in prosecuting that case?
Mr. E.: I think I would in that case, yes.
The prosecutor: Let’s assume that in this case, the surprise—it’s dark, and people don’t get a good enough look at the attacker to make a positive identification. Does that . . . in and of itself make you think that we can’t prove these charges?
Mr. E.: Not in and of itself, no.
The prosecutor: Okay. If we can prove to you beyond a reasonable doubt identification via scientific evidence, not through eyewitness testimony, and you, of course, have to weigh the value of our evidence, but if we can do that, would you be comfortable in returning a verdict of guilty?
Mr. E.: I believe so.
¶44 After briefly questioning the next prospective juror, the prosecutor also asked
Mr. N. about his confidence in DNA. Mr. N. initially stated that “there is a margin of
error with DNA that is not beyond reasonable.” But when the prosecutor asked if he
5
could approach the process “with an open mind” and “be convinced that DNA is
valuable evidence,” Mr. N. replied that he “could be convinced if the margin of error is
small enough.”
¶45 After both sides finished questioning the jury, the prosecutor used her first
peremptory strike to excuse Mr. E. Wilson’s defense counsel immediately requested a
bench conference, where he challenged the strike under Batson and argued that the
prosecutor struck Mr. E. because of his race. The prosecutor responded by explaining
her belief that Mr. E. might be unwilling to find Wilson guilty based on DNA evidence
alone:
The biggest concern was that [Mr. E.] was very uncomfortable with the lack of eyewitness identification. That he was not sure about the science of DNA, and if the victim could not identify someone . . . the DNA in and of itself is not enough. I think I’ve already said this, but it was his discomfort with the DNA evidence and his concern about the ability to return a guilty verdict if, in fact, the victim could not do an eyewitness identification in the case.
The defense countered that Mr. E. had indicated “the exact opposite”: that he was
“comfortable” with DNA evidence and the lack of eyewitness identification. The court
accepted the prosecutor’s justification and denied Wilson’s Batson challenge, stating:
[I]n terms of the DNA, he kind of waffled back and forth. But what I heard specifically on the ID issue is that there was a general question where all the jurors said, Yeah, cases get decided every day, burglary for example, and [the prosecutor] used this with a different juror particularly; I can’t remember this juror.
He hesitated for an extended period, and when responding to the question about the ID and the inability of the complaining witness to make an ID of the suspect here, he indicated some concern or question about it.
The Court is satisfied that the prosecution has stated an appropriate basis to excuse Mr. [E.] on that basis.
6
The prosecutor did not use any more peremptory challenges. Wilson, meanwhile
exercised all six peremptory challenges to which he was statutorily entitled. See
§§ 16-10-104, -105, C.R.S. (2014). Each time Wilson used a peremptory challenge, the
prosecutor accepted the jury panel. Through this process, twelve jurors and one
alternate juror were selected. The record does not indicate the racial makeup of the
jury.
¶46 Over the course of the five-day trial, the defense challenged the prosecutor’s
theory that Wilson was the attacker. Although a prosecution expert testified that there
was a less than one-in-fifteen-trillion chance that the DNA found on the victim
belonged to someone unrelated to Wilson, Wilson disputed the accuracy of these
results. He also questioned witnesses about the victim’s inability to identify her
assailant. She could describe the man who attacked her only by his race, clothing, and
car, and she had initially identified another man as her assailant, later telling police that
a third man, whom she saw in a photographic lineup, had features similar to her
assailant’s. The jury nevertheless found Wilson guilty of sexual assault, unlawful
sexual contact, and second-degree kidnapping. At a later hearing, the court designated
Wilson a sexually violent predator, convicted him of three habitual offender counts in
addition to the three substantive counts, and sentenced him to consecutive prison terms
of ninety-six-years-to-life for sexual assault and ninety-six years for second-degree
kidnapping, to run concurrently with a sentence of twenty-four-years-to-life for
unlawful sexual contact.
7
¶47 On appeal, the court of appeals reviewed for clear error the trial court’s
determination that Wilson failed to prove racial discrimination in the prosecutor’s
peremptory strike of Mr. E. Wilson, ¶ 5. The court of appeals noted that the record
refuted both of the prosecutor’s stated reasons for the strike, observing that Mr. E. had
stated during voir dire that he was confident in DNA evidence and willing to return a
guilty verdict in the absence of eyewitness identification. Id. at ¶¶ 16–17. According to
the court, this inconsistency “necessarily establishe[d] that those explanations were
pretextual and were actually based on Mr. E.’s race.”1 Id. at ¶ 18. The court held that
the strike violated the Equal Protection Clause as interpreted in Batson and then
decided, as a matter of first impression in Colorado, that such an error is structural. Id.
at ¶ 28. As a result, the court reversed the judgment of conviction and remanded
Wilson’s case for a new trial. Id. at ¶ 52.
¶48 We granted the People’s petition for certiorari to consider the appropriate
resolution of a Batson objection where the prosecutor’s stated explanation for the
challenged peremptory strike is inconsistent with the record.2 We begin our analysis
1 The court of appeals footnoted its conclusion that a Batson violation occurred with a codicil stating, “[W]e do not also conclude that the prosecutor acted out of racial animus. Rather, we only determine that the prosecutor’s race-neutral explanations for challenging Mr. E. were not supported by the record.” Id. at ¶ 28 n.2. We defer to the trial court’s conclusion that the prosecutor did not strike Mr. E. because of the color of his skin and therefore do not consider whether racial animus inheres in every racially motivated decision. 2 Specifically, we granted certiorari to consider the following three issues: 4. Whether the court of appeals erred in applying Batson v. Kentucky, 476 U.S. 79 (1986), by concluding that because a prosecutor’s race-neutral explanations for challenging a prospective juror were
8
with an overview of the three-step Batson test, which is meant to uncover
unconstitutional discrimination in the exercise of peremptory challenges. See Batson,
476 U.S. at 96–98. Next, we focus on the final and dispositive step of the Batson
analysis, where the trial court must determine whether the challenger has established
purposeful discrimination. See id. at 98. Then, turning to the facts of the instant case,
we conclude that the trial court did not err when it accepted the prosecutor’s
race-neutral explanation for peremptorily striking Mr. E. and denied Wilson’s Batson
challenge.3 We therefore reverse the decision of the court of appeals.
II. Batson Prohibits Purposeful Racial Discrimination
¶49 In Batson, the U.S. Supreme Court recognized that “the Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely on account of their race or on
the assumption that black jurors as a group will be unable impartially to consider the
State’s case against a black defendant.” 476 U.S. at 89. To implement this directive, the
Court laid out a three-step analysis intended to uncover racial discrimination in the
inconsistent with the record, the record necessarily established that those explanations were pretextual. 5. Whether the court of appeals failed to give deference to the trial court’s two independent reasons for determining that the trial prosecutor did not exercise a peremptory challenge on impermissible grounds. 6. Whether Batson violations are subject to harmless error analysis or constitute structural error. 3 As a result of our conclusion that no Batson violation occurred, we do not address whether such a violation constitutes structural error.
9
exercise of peremptory challenges by the prosecutor in a criminal case.4 Id. at 96–98. If
the defendant can make out a prima facie case that the prosecutor struck a prospective
juror on the basis of race, then, at the second step, the burden of production shifts to the
prosecutor to proffer a race-neutral reason for excusing the prospective juror. Id. at
96–97. After the defendant has a chance to rebut the prosecutor’s explanation, the trial
court determines, at the third step, whether the defendant has established purposeful
discrimination by the prosecutor. Id. at 98.
¶50 Wilson contends that the trial court committed clear error in its step-three
ruling because both the trial court and the prosecutor mischaracterized Mr. E.’s voir
dire, raising an inference that the prosecutor struck Mr. E. because of his race. Wilson
urges us to adopt and apply the court of appeals’ rule that, where the record refutes the
prosecutor’s asserted race-neutral reasons for striking a prospective juror, the
discrepancy “suggest[s] pretext sufficient for finding discriminatory purpose.” See
Wilson, ¶ 15. In some cases, however, a discrepancy between the prosecutor’s
justification and the record of voir dire can reflect a mistaken recollection rather than
purposeful discrimination. E.g., Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1547 (10th
Cir. 1997), abrogated on other grounds by Kimel v. Fla. Bd. of Regents, 528 U.S. 62
(2000). Therefore, after we describe the standard of review, we begin our analysis with
4 The Supreme Court has since extended Batson to apply to situations where the challenger does not share the same race as the subject of the strike, Powers v. Ohio, 499 U.S. 400, 406 (1991); where the challenger is a civil litigant, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991), or a criminal defendant, Georgia v. McCollum, 505 U.S. 42, 59 (1992); and where the challenger alleges gender discrimination, J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 129 (1994).
10
an overview of the quantum of proof required to establish purposeful discrimination at
the third step of the Batson analysis. Next, we examine the trial court’s ruling in the
instant case and determine that, under the deferential standard of review required at
Batson’s third step, the trial court did not clearly err by accepting the prosecutor’s
race-neutral reason for excusing Mr. E. from the jury panel.
A. Standard of Review
¶51 The standard of review “depends upon which step of the Batson analysis is
before us.” Valdez v. People, 966 P.2d 587, 590 (Colo. 1998). The trial court in this case
heard the prosecutor’s race-neutral explanation and ruled on the ultimate issue of
purposeful discrimination. The question of whether Wilson established a prima facie
case at step one is therefore moot. People v. Cerrone, 854 P.2d 178, 186 n.13 (Colo. 1993)
(citing Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion)). Nor is step
two before us, because Wilson concedes that the prosecutor offered a race-neutral
explanation. We therefore focus on the third and final step of the Batson analysis:
whether the opponent of the peremptory challenge proved purposeful discrimination.
Batson, 476 U.S. at 98.
¶52 Describing step three, the Batson Court analogized to the standard of proof for
sex discrimination under Title VII. See id. at 98 n.21 (citing Anderson v. City of
Bessemer City, 470 U.S. 564, 575–76 (1985)). The Court stated that a trial court’s
step-three finding as to the existence of discrimination is due “great deference,” as it
“turn[s] on evaluation of credibility.” Id. The inquiry at step three requires the trial
court to decide whether to believe counsel’s race-neutral explanation for a peremptory
11
challenge. Hernandez, 500 U.S. at 365. “[T]he best evidence often will be the demeanor
of the attorney who exercises the challenge,” evaluation of which lies “‘peculiarly
within a trial judge’s province.’” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 428
(1985)). We therefore review the trial court’s factual determination at step three only for
clear error. Snyder v. Louisiana, 552 U.S. 472, 477 (2008); accord Valdez, 966 P.2d at 590.
D. Errors in Recollection at Batson’s Third Step
¶53 At step three, “the critical question” becomes “the persuasiveness of the
prosecutor’s justification for h[er] peremptory strike.” Miller-El v. Cockrell (Miller-El I),
537 U.S. 322, 338–39 (2003). The trial court must gauge the prosecutor’s credibility by
evaluating her demeanor, how reasonable or improbable her explanations are, and
whether her “proffered rationale has some basis in accepted trial strategy.” Id. at 339.
If the prosecutor’s asserted race-neutral reasons do not hold up, and “the racially
discriminatory hypothesis” better fits the evidence, then the trial court must uphold the
Batson challenge. See Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 265–66 (2005)
(concluding, based on historical patterns of practice and the disparate treatment of
black and white veniremembers during jury selection, that the prosecutor struck black
potential jurors because of their race). Though the trial court must evaluate all relevant
facts, “the ultimate burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995).
¶54 It is true that a prosecutor’s mischaracterization of a prospective juror’s voir dire
testimony may indicate an ulterior, racial motive. See, e.g., Miller-El II, 545 U.S. at 244
(concluding that counsel misrepresented a veniremember’s inability to vote for death to
12
disguise “an ulterior reason for keeping [him] off the jury”). Yet dissonance between a
prosecutor’s race-neutral explanation and the transcript of voir dire does not prove that
the prosecutor lied to conceal racial discrimination. See, e.g., Ford v. State, 1 S.W.3d
691, 694 (Tex. Crim. App. 1999) (holding that proof that an explanation was incorrect is
insufficient to satisfy a Batson challenger’s burden of persuasion). Most courts find
other indications of racial motivation before concluding that race-neutral explanations
belied by the record are pretextual. See, e.g., Johnson v. Vasquez, 3 F.3d 1327, 1330 (9th
Cir. 1993).
¶55 For example, in Johnson, the Ninth Circuit observed that the prosecutor initially
justified his strike of a minority veniremember by pointing to defense counsel’s strike of
another minority veniremember, suggesting that race factored into the prosecutor’s
decision-making. Id. at 1330. The prosecutor also gave four, facially race-neutral
reasons for his strike. Id. Only after the court noted that the prosecutor’s initial
explanation raised “a strong indication” of racial bias did it compare the record to the
prosecutor’s other stated reasons. Id. at 1329, 1330. Then, concluding that the record
either undermined or did not support each of the prosecutor’s four race-neutral
reasons, the court held that those reasons were pretext for racial discrimination. Id. at
1330; see also Flowers v. State, 947 So. 2d 910, 923–26 (Miss. 2007) (holding that the trial
court erred in denying the defendant’s Batson challenge where the prosecutor’s main
reason for striking a black veniremember applied with equal force to a white
veniremember whom the prosecutor accepted and the record refuted another of the
prosecutor’s reasons for striking the black veniremember).
13
¶56 Standing alone, however, proffered reasons that are contradicted by the record
do not imply pretext but can instead reflect mistaken recollection. In Hurd, the Tenth
Circuit explained that a shortcut linking a mistaken reason to a pretextual reason
conflates the second and third steps of the Batson analysis. 109 F.3d at 1547. To pass
muster at step two, the strike proponent’s explanation need not be “persuasive, or even
plausible,” as long as it is race-neutral. Purkett, 514 U.S. at 768. But at step three, the
challenger must “convince the [trial] court that the reason proffered for the strike was
unworthy of belief and that the strike was racially motivated.” Hurd, 109 F.3d at 1548.
In Hurd, counsel justified his strike of the only black veniremember by stating that the
man previously found for a railroad employee in a civil case. Id. at 1546–47. As
opposing counsel and the trial court immediately pointed out, however, the
veniremember had stated that he served on a civil jury that reached a verdict, but he
never said that the jury had rendered a verdict for the plaintiff. Id. at 1547. The trial
court, having observed the attorney’s demeanor “at length,” determined that, despite
the attorney’s error in recollection, “he had truthfully represented his belief . . . and had
not struck the [prospective] juror because of the color of his skin.” Hurd v. Pittsburg
State Univ., 892 F. Supp. 245, 248 (D. Kan. 1995). The Tenth Circuit deferred to the trial
court’s finding that counsel for the university made an honest mistake and held that the
plaintiff had not proved facts sufficient to establish purposeful discrimination. Hurd,
109 F.3d at 1548.
¶57 The court of appeals’ contrary view in this case, which labels as pretext any
justification unsupported by the record, elevates an appellate court’s review of a cold
14
record above the trial court’s firsthand observation of the proceedings and the attitude
of the participants. Only the trial court can assess non-verbal cues, such as hesitation,
voice inflection, and facial expressions, that are not recorded on a transcript. The court
of appeals’ method also creates a presumption that arrogates the trial court’s step-three
duty to distinguish between sham excuses that violate the Equal Protection Clause and
bona fide, race-neutral explanations for a peremptory strike. See Hernandez, 500 U.S. at
365; Batson, 476 U.S. at 98 n.21. Such a regime is at odds with the U.S. Supreme Court’s
Batson jurisprudence, which acknowledges the “pivotal role” of the trial court in
evaluating the credibility and demeanor of both the prosecutor and the prospective
juror. Snyder, 552 U.S. at 477; see also Valdez, 966 P.2d at 599 (Kourlis, J., dissenting)
(“Discrimination is as sly as it is insidious. It lives in inference, tone, and gesture as
much as in action.”). The Batson analysis exists to expose and prevent racial
discrimination in jury selection, “not to test [a] prosecutor’s memory.” People v. Jones,
247 P.3d 82, 99 (Cal. 2011). When an appellate court presumes racial motivation any
time a prosecutor misremembers a prospective juror’s voir dire testimony, it discounts
the possibility that the error was a result of an innocent transposition—and that race did
not motivate the strike.
E. The Prosecutor Did Not Base Her Peremptory Strike on the Prospective Juror’s Race
¶58 The prosecutor in this case explained that she excused Mr. E. for two facially
race-neutral reasons: (1) his “discomfort” with DNA evidence and (2) his inability to
return a guilty verdict without eyewitness identification. In rebuttal, the defense
15
argued that Mr. E.’s responses indicated that he was both comfortable with DNA and
“would have no problem with the alleged victim not being able to identify” her
attacker. After listening to the prosecutor’s explanation and Wilson’s rebuttal, the trial
court noted its own impression of Mr. E. The court observed that Mr. E. “waffled back
and forth” in response to the prosecutor’s questions about DNA evidence and
“hesitated for an extended period” before answering questions about the lack of
eyewitness identification. Although the trial court never uttered the magic words “no
purposeful discrimination,” it concluded that the prosecutor had articulated “an
appropriate basis to excuse [Mr. E.].” The court therefore denied Wilson’s Batson
challenge.
¶59 The court of appeals disagreed and held that the trial court erred by denying
Wilson’s Batson challenge because the prosecutor’s account of Mr. E.’s responses
conflicted with the transcript of voir dire. Wilson, ¶¶ 16–17. While the court of appeals
correctly noted the variance, it failed to credit the trial court’s finding that Mr. E.
“hesitated for an extended period” because it concluded that the record refuted the
court’s other finding: that Mr. E. “waffled back and forth” with respect to his confidence
in DNA evidence. Id. at ¶ 19. The court of appeals decided that the incongruity
between the transcript of Mr. E’s responses and the prosecutor’s account of voir dire
indicated a discriminatory purpose behind the prosecutor’s peremptory strike of Mr. E.
Id. at ¶ 18.
¶60 The record of voir dire does not, however, carry the weight that the court of
appeals assigned to it. Asked about the persuasiveness of DNA evidence and the
16
absence of eyewitnesses to a crime, Mr. E.’s answers arguably indicated skepticism: He
gave appropriate responses, but used qualifiers like, “in that case,” “[n]ot in and of
itself,” and, “I believe so.” Furthermore, he answered affirmatively when the
prosecutor asked him if a witness’s inability to identify her attacker would “cause [him]
any pause.” The prosecutor interpreted these responses as indications that Mr. E. was
“uncomfortable” with DNA evidence and might not be willing to return a guilty verdict
if the victim could not identify her attacker. Her intuition that Mr. E. might not be a
suitable juror in a case based extensively on DNA evidence, where the victim could not
identify the defendant, was both reasonable and grounded in trial strategy. See
Miller-El I, 537 U.S. at 339 (“Credibility can be measured by . . . how reasonable, or how
improbable, the explanations are[] and by whether the proffered rationale has some
basis in accepted trial strategy.”); cf. Batson, 476 U.S. at 97 (emphasizing that “the
prosecutor’s explanation need not rise to the level justifying exercise of a challenge for
cause”).
¶61 Wilson nevertheless claims that the prosecutor’s reasons for excusing Mr. E.
better fit other prospective jurors, like Mr. N., who was leery of the “margin of error
with DNA.” At the time of the Batson challenge, Wilson argued only that, contrary to
the prosecutor’s explanation, Mr. E. was comfortable with DNA evidence and the lack
of eyewitness identification. No further record was made. Wilson never claimed that
the prosecutor treated similarly situated veniremembers differently based on their race,
and we decline to resolve such a claim raised for the first time before this court. Valdez,
966 P.2d at 594; see also Snyder, 552 U.S. at 483 (“[A] retrospective comparison of jurors
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based on a cold appellate record may be very misleading when alleged similarities were
not raised at trial.”). At most, the record suggests that the prosecutor may have
misremembered Mr. E.’s voir dire.
¶62 The prosecutor’s possible erroneous recollection does not, however, evince the
purposeful discrimination that Batson prohibits. See 476 U.S. at 98. The prosecutor
may have made a mistake, but that is insufficient to prove that race motivated her
decision to strike Mr. E. Cf. Hurd, 109 F.3d at 1548. Having observed the prosecutor’s
demeanor firsthand, the trial court concluded that she stated “an appropriate basis” for
excusing Mr. E. The court thus implicitly found that the prosecutor was credible and
that her race-neutral explanation for excusing Mr. E. was sincere. See Miller-El I, 537
U.S. at 338–39. These findings deserve deference because “[t]he trial judge is the
judicial officer who watches and listens as voir dire unfolds, and who can discern the
presence or absence of discriminatory intent.” Valdez, 966 P.2d at 599 (Kourlis, J.,
dissenting). Although the prosecutor’s justification may appear discordant with the
record, the trial court in this case did not commit clear error by believing her
race-neutral explanation and denying Wilson’s Batson challenge.

Outcome: Accordingly, we reverse the judgment of the court of appeals and remand to
that court for consideration of the remaining issues on appealwe reverse the judgment of the court of appeals and remand the case to that court with instructions to return it to the trial court for further proceedings consistent with this opinion. We hold that a prosecutor’s error in recollection does not compel a finding of purposeful
discrimination in contravention of the Equal Protection Clause as interpreted in Batson. Rather, the third step of the Batson analysis requires the trial court to assess the credibility of the proponent of a peremptory strike and determine whether to believe her race-neutral explanation. Unless the opponent of the strike can prove purposeful discrimination, the trial court should deny the Batson challenge. On appeal, a reviewing court should defer to the trial court’s credibility determination and reverse
only for clear error.

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