Colorado’s second-highest court Thursday found no intentional racial discrimination at play when El Paso County prosecutors removed the only Black man from a Black defendant’s jury, after misrepresenting what he actually said during jury selection.

Michael Ellis is serving a prison sentence of more than 200 years after a jury convicted him in 2019 for a string of robberies and kidnapping. On appeal, Ellis argued the prosecution violated the longstanding constitutional prohibition on race-based exclusions of jurors.

The government had dismissed the only Black man in the jury pool, identified as Juror S, using a peremptory strike, which typically does not require a reason. After the defense challenged the strike, the prosecutor justified the move by claiming Juror S “said in his personal life sometimes, I think, the police lied to him or didn’t tell the truth. That’s the entirety of it. It has nothing to do with race.”

In reality, Juror S did not say the police lied to him. Instead, another juror had made those comments. But a three-judge panel of the Court of Appeals waved aside the notion that an “innocent” mistake amounted to a constitutional violation.

“Ellis does not explain why the prosecutor’s misattribution to Juror S of this single statement,” wrote Judge Elizabeth Harris, “demonstrates purposeful discrimination rather than ‘ innocent transposition.’”

The U.S. Supreme Court’s 1986 decision in Batson v. Kentucky recognized that purposefully excluding people from juries because of their race is unconstitutional. Now, defendants may raise a “Batson challenge” when the prosecution attempts to strike a juror of color. The challenge proceeds in three steps.

First, the judge determines if there is a plausible case that intentional racial discrimination is occurring. Second, the prosecutor must supply a “race-neutral” reason for striking the juror. Finally, the trial judge decides whether the race-neutral explanation is credible.

Critics of Batson challenges have cited the inherent difficulty in proving a juror’s race, and not the offered justification, is the real motivation for a strike.

During jury selection, Juror S revealed he had a relative in law enforcement and he wrote on his questionnaire that he had “good and bad experiences” with police. Juror S also disclosed he had diabetes and needed to use the bathroom frequently, but the trial judge assured him the court could accommodate his needs.

At voir dire, which is the portion of jury selection when the parties ask questions of jurors, Juror S indicated he was comfortable with judging the credibility of witnesses.

“When I think about it, if most of your evidence is going to be witnesses only,” Juror S elaborated, “then that’s not enough for me. I need evidence. Because somebody can accuse you of something and people can go with it, just to say, ‘Yeah.’ And I’m not for that because I’ve been on the other side of being accused.”

The prosecution used a peremptory strike to remove Juror S, but the defense raised a Batson challenge. The unnamed prosecutor then listed their race-neutral reasons for dismissing Juror S: He had “the health issue.” He “needs more than one witness.” He “had that law enforcement contact.” And there were “some trust issues with the police.”

Ellis’ attorney disputed whether the prosecutor’s recollection was accurate, but argued Juror S could be a fair juror and noted he was “the only African American gentleman in the entire room.”

“Judge, it has nothing to do with his race,” the prosecutor responded. “It has everything to do with the fact that he said in his personal life sometimes, I think, the police lied to him or didn’t tell the truth. That’s the entirety of it.”

Another juror was actually the one who mentioned police lying to them. But the prosecutor added that Juror S had written about having good and bad experiences with police, calling it “the basis of what we’re asking to excuse him for.”

Then-district Court Judge Jann Dubois agreed the prosecution had presented a race-neutral reason and allowed for Juror S’ dismissal.

On appeal, Ellis contended the prosecutor’s “sole and entire reason” for removing Juror S was his alleged bias against law enforcement.

“But he mischaracterized Juror S’ statements,” wrote attorney Cynthia Harvey.

The Colorado Attorney General’s Office admitted Juror S “did not say those exact words,” but believed it was still possible that Juror S had a bias against law enforcement based on his comment that he was “on the other side of being accused.”

“It is reasonable to assume that those who accused him were law enforcement officers,” wrote attorney Daniel Edwards.

The appeals panel indicated it could not automatically assume the prosecutor’s “mistaken recollection” of Juror S’ comments amounted to racial bias in disguise. Even with the error, the prosecutor had other reasons for removing Juror S.

“Contrary to Ellis’ assertion, the prosecutor did not rely solely on the misattributed statement about distrust of the police,” Harris wrote. Despite the assertion that Juror S’ alleged distrust of police was “the entirety of it,” the panel believed the prosecutor was speaking more broadly about reasons for striking Juror S.

Next week, the Colorado Supreme Court will hold a public hearing about whether to adopt a new rule addressing racial bias in jury selection. The proposal would make it more difficult for prosecutors to excuse people of color for reasons that, while not explicitly racial, have historically correlated with race.