Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA1234
Attorneys for Petitioner: Philip J. Weiser, Attorney General
Jillian J. Price, Senior Assistant Attorney General Denver,
Attorneys for Respondent: Johnson & Klein, PLLC Gail K.
Johnson Hillary C. Aizenman Boulder, Colorado
JUSTICE BOATRIGHT does not participate.
This case presents a question left unanswered by our holding
in People v. Novotny, 2014 CO 18, 320 P.3d 1194:
What standard of reversal applies where a trial court
erroneously denies a challenge for cause, the defendant
exhausts his peremptory challenges, and the challenged juror
ultimately serves on the jury? More specifically, should
reversal be automatic if the challenged juror should have
been excused because she was impliedly biased as a matter of
law, even if she did not evince actual enmity toward the
It is clear that the erroneous denial of a challenge for
cause amounts to structural error if it results in an
actually biased juror serving on a jury. Consistent with that
principle, we conclude that the erroneous seating of an
impliedly biased juror is also structural error and requires
reversal. In other words, for purposes of a criminal
defendant's constitutional right to an impartial jury, a
juror who is presumed by law to be biased is legally
indistinguishable from an actually biased juror. Here, the
trial court erroneously denied a for-cause challenge to a
juror who was presumed by law to be biased under section
16-10-103(1)(k), C.R.S. (2019) (requiring the court to
sustain a challenge to a potential juror who is "a
compensated employee of a public law enforcement agency or a
public defender's office"). The defendant exhausted
his peremptory challenges, and the impliedly biased juror
served on the defendant's jury. We conclude that such an
error is not amenable to analysis under a harmless error
standard, regardless of the juror's actual bias, and the
defendant's convictions must be reversed. Accordingly, we
affirm the judgment of the court of appeals.
Abdu-Latif Kazembe Abu-Nantambu-El forced his way into the
apartment of an acquaintance, where he fatally stabbed a
visitor and forced the acquaintance to clean up evidence of
the crime. The prosecution subsequently charged
Abu-Nantambu-El with numerous offenses, including first
degree murder (after deliberation), first degree murder
(felony murder), second degree murder, and two counts of
first degree burglary. Abu-Nantambu-El proceeded to trial on
a self-defense theory.
Jury Selection and Trial
During jury selection, Juror J, a financial grant manager for
the State of Colorado, said that she worked for the Colorado
Division of Criminal Justice but described the connection
between her duties and law enforcement as, at most, tenuous:
I am currently employed with the Colorado Division of
Criminal Justice, which is housed in the Department of Public
Safety. I don't feel that the division is law enforcement
even though the state patrol and [Colorado Bureau of
Investigation] are in our department. I see state troopers
down the hall because we're in the same building, but I
couldn't tell you their names. That's the kind of
contact I have with them. We give department, federal,
Department of Justice grants out to drug treatment and
criminal history records, things like that, juvenile justice
crime prevention programs and drug treatment. I don't
have any close relatives or friends in the law enforcement
arena. I don't have any training in law enforcement.
When defense counsel asked about potential bias, Juror J
indicated that she generally was not in contact with law
JUROR J: I don't think it would be a problem because I
don't work directly with law enforcement. We fund a lot
of law enforcement agencies and DA's offices and things
like that, but it's on different kinds of projects.
DEFENSE COUNSEL: Do you deal with the law enforcement
agencies yourself directly?
JUROR J: [I deal with their] [f]inance people.
Section 16-10-103(1) lists the grounds on which a trial court
"shall" sustain a challenge to a potential juror
for cause. Abu-Nantambu-El challenged Juror J under section
16-10-103(1)(k), which requires the court to sustain a
challenge to a potential juror who is a "compensated
employee of a public law enforcement agency or a public
defender's office." The prosecution disputed the
challenge, and the trial court denied it, reasoning that the
Colorado Division of Criminal Justice is a multidisciplinary
agency and Juror J's job duties as a financial grant
manager were unrelated to law enforcement.
Abu-Nantambu-El subsequently exhausted his peremptory
challenges but did not excuse Juror J, who ultimately served
on the jury. Among other counts, the jury convicted
Abu-Nantambu-El of first degree murder (felony murder),
second degree murder, and two counts of first degree
burglary. The court sentenced him to life
imprisonment without the possibility of parole.
Court of Appeals Decision
Abu-Nantambu-El appealed, arguing, as relevant here, that his
constitutional right to a fair and impartial jury was
violated because his jury included Juror J, who should have
been excused for cause under section 16-10-103(1)(k). He
contended that the error was structural. The People conceded
that the trial court erred in denying the challenge for cause
but argued that the proper standard of reversal was an
outcome-determinative harmless error standard and that
Abu-Nantambu-El's claim failed because Juror J did not
evince any actual bias. Thus, the dispute on appeal was the
proper standard of reversal.
¶9 A divided panel of the court of appeals reversed
Abu-Nantambu-El's convictions and remanded for a new
trial, concluding that reversal is required where, as here,
the trial court erroneously denies a challenge for cause
under section 16-10-103(1)(k), the defendant exhausts his or
her peremptory challenges, and the impliedly biased juror
serves on the jury. People v. Abu-Nantambu-El, 2017
COA 154, ¶ 3, ____ P.3d ____. However, each judge wrote
In Judge Booras's view, reversal was required because the
trial court's ruling was an error in violation of an
express legislative mandate in section 16-10-103(1)(k)
(stating that a challenge for cause "shall" be
granted). Id. at ¶¶ 19, 23.
Judge Freyre agreed that Abu-Nantambu-El's conviction
must be reversed, concluding that the error was structural
because it violated Abu-Nantambu-El's constitutional
right to trial by an impartial jury. Id. at
¶¶ 51, 72 (Freyre, J., concurring in part and
dissenting in part). Judge Freyre noted that a defendant
cannot be tried fairly when a biased juror serves on the
jury. Id. at ¶ 55. She further reasoned that
there is no basis in section 16-10-103(1)(k) to differentiate
between an actually biased juror and an impliedly biased
juror. Id. at ¶ 52. Rather, she reasoned,
"bias is bias." Id. And because the harm
arising from a biased adjudicator "pervades and infects
the entire framework of the trial," it constitutes
structural error requiring reversal. Id. at ¶
Judge Webb dissented. He rejected Judge Booras's express
legislative mandate approach because section 16-10-103 is
silent on the remedy for the seating of a biased juror.
Id. at ¶ 75 (Webb, J., dissenting). He also
dismissed Judge Freyre's structural error approach,
concluding that section 16-10-103(1)(k) provides broader
protection than constitutional due process requires.
Id. at ¶ 98. Because, in his view, the Sixth
Amendment protects against the service of an impliedly biased
juror "in only the most extreme of situations,"
id. at ¶ 97 (quoting State v.
Robertson, 122 P.3d 895, 900 n.3 (Utah Ct. App. 2005)),
the error did not violate Abu-Nantambu-El's
constitutional rights and accordingly was not structural,
id. at ¶ 132. Instead, Judge Webb agreed with
the People that the seating of an impliedly biased juror
should be evaluated under an outcome-determinative
analysis-specifically, ordinary harmless error. Id.
at ¶¶ 95, 132. In reaching this conclusion, he
expressed concern that requiring reversal would encourage
defendants to test their luck with a jury by not exercising a
peremptory strike as to a challenged juror, knowing that the
conviction would be reversed on appeal if a reviewing court
determined that the challenge for cause should have been
granted. Id. at ¶ 108.
We granted the People's petition for a writ of certiorari
to review the court of appeals' decision.
A fair and impartial jury is a key element of a
defendant's constitutional right to a fair trial under
both the United States and Colorado Constitutions. U.S.
Const. amends. V, VI, XIV; Colo. Const. art. II §§
16, 25; see also Vigil v. People, 2019 CO 105,
¶ 9, ___ P.3d ___; People v. Russo, 713 P.2d
356, 360 (Colo. 1986). Accordingly, seating a biased juror
violates the defendant's constitutional rights. See
Nailor v. People, 612 P.2d 79, 80 (Colo. 1980).
Our recent opinion in Vigil addressed some of the
questions left open after Novotny regarding jury
selection and the use of peremptory challenges. There, we
noted that, within constitutional limits, the General
Assembly determines who is competent and qualified for jury
service. Vigil, ¶ 9; see also People v.
White, 242 P.3d 1121, 1124 (Colo. 2010). For instance,
under the Uniform Jury Selection and Service Act,
§§ 13-71-101 to -145, C.R.S. (2019)
("UJSSA"), jurors must be U.S. citizens and, at the
time of service, residents of the county in which they are
called to serve. § 13-71-105(1), C.R.S. (2019). Further,
prospective jurors "shall be disqualified" if they
are under the age of eighteen; unable to read, speak, or
understand English; or unable to render jury service because
of a mental or physical disability. §
13-71-105(2)(a)-(c). Additionally, "prospective grand
juror[s] shall be disqualified if [they] ha[ve] previously
been convicted of a felony . . . ." § 13-71-105(3).
Courts must "strictly enforce the provisions" of
the UJSSA. § 13-71-104(4), C.R.S. (2019).
The legislature also requires a trial court, upon a
party's challenge, to remove jurors when particular
circumstances implicate their ability to remain impartial.
Vigil, ¶ 11. First, section 16-10-103(1)(j)
requires a trial court to excuse jurors who are actually
biased. Specifically, a trial court must grant a challenge
for cause to a prospective juror who "evinc[es] enmity
or bias toward the defendant or the state," unless the
court is "satisfied" that the prospective juror
"will render an impartial verdict according to the law
and the evidence submitted to the jury at the trial."
§ 16-10-103(1)(j); Vigil, ¶ 11; see
also Morgan v. People, 624 P.2d 1331, 1332 (Colo. 1981)
(concluding that a juror was actually biased where ...