Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 14CA1234
for Petitioner: Philip J. Weiser, Attorney General, Jillian
J. Price, Senior Assistant Attorney General, Denver, Colorado
for Respondent: Johnson & Klein, PLLC, Gail K. Johnson,
Hillary C. Aizenman, Boulder, Colorado
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
defendants 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 defenders office"). The defendant exhausted his
peremptory challenges, and the impliedly biased juror served
on the defendants jury. We conclude that such an error is
not amenable to analysis under a harmless error standard,
regardless of the jurors actual bias, and the defendants
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.
B. 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
I am currently employed with the Colorado Division of
Criminal Justice, which is housed in the Department of Public
Safety. I dont 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 were in the same building, but I
couldnt tell you their names. Thats 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 dont have any close relatives
or friends in the law enforcement arena. I dont 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 dont think it would be a problem because I dont
work directly with law enforcement. We fund a lot of law
enforcement agencies and DAs offices and things like that,
but its 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
defenders 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 Js 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.
C. 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-Els claim failed because Juror J did not evince
any actual bias. Thus, the dispute
on appeal was the proper standard of reversal.
A divided panel of the court of appeals reversed
Abu-Nantambu-Els 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 separately.
In Judge Boorass view, reversal was required because the
trial courts 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-Els conviction must be
reversed, concluding that the error was structural because it
violated Abu-Nantambu-Els 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 ¶ 72.
Judge Webb dissented. He rejected Judge Boorass 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 Freyres 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-Els 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 Peoples petition for a writ of certiorari to