Montrose - Daily Press

DELTA — A convicted killer should receive a new trial because the pool from which his jury was selected did not fairly represent minorities as relevant to their numbers in Arapahoe County, the Colorado Supreme Court heard Thursday in Delta.

Trevon Washington was convicted in 2003 for his role in the 1998 drug-related murders of three people in Arapahoe County. A fourth victim survived, but was rendered paraplegic. Washington is serving a life sentence for several felonies, including first-degree murder and aggravated sexual assault.

He is appealing, arguing a lower court should have vacated his convictions because the state hadn’t complied with the U.S. Constitution’s Sixth Amendment’s fair cross-section requirements, the Colorado constitution, or state jury selection provisions.

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“I know people may not have a lot of sympathy for Mr. Washington,” his attorney, Anthony Viorst, said. “The issue raised serves not only to safeguard rights, but to legitimize the judicial process.”

Washington’s was one of two cases argued in Delta as part of the Courts in the Community program. (See related). Students from several regional high schools filled the auditorium at the Delta Performing Arts Center to get a rare glimpse of the state high court in action.

“I think it’s a wonderful opportunity,” attendee Steve Kirby said prior to arguments. Kirby was chaperoning a civics class from the Vision Program on behalf of teacher Angela Toothaker.

“Angela has been going over the whole process (of court procedures) in her class. I was impressing on them what a great opportunity this was,” he said.

Mullarkey said in her opening remarks Washington’s case “(Involves) one of our core principles — our right to a jury trial.” How prospective jurors are screened for service and the fairness of the process is a fundamental issue, Mullarkey said.

She could not express an opinion on the merits of Washington’s case itself.

During argument, Viorst told the justices that, prior to March 2003, Arapahoe County excluded from service jurors who’d sat on municipal juries in the city of Aurora — a consideration given nowhere else in the state.

The practice ceased by the time Washington went to trial, and all prospective jurors in the county were available, but the service rank for prospective district and county court jurors living in Aurora was still based on jury service in Aurora municipal courts.

Aurora is where the county’s Hispanic and African American populations are concentrated. The result, Washington’s team argued in court filings, was an under-representation of minorities in the jury pool.

The appeals court earlier ruled that any exclusion of minorities from the jury pool wasn’t statistically significant and that representation was fair and reasonable. Accordingly, it didn’t address “whether there was systematic exclusion or whether the method served a significant state interest.”

Viorst said Thursday it was in society’s best interest to ensure jury pools contained an appropriate cross section of the communities in which a case was being heard.

But, saying there is no particular right to have jurors of a particular race or sex, Justice Michael Bender asked for clarification. The Sixth Amendment entitles a defendant to a jury selected from a “fair cross-section of the community” — but not a jury of a particular composition.

Constitutional and statutory requirements are to ensure a jury pool is composed of sufficient numbers of people of all races, so that it’s reflective of the racial makeup of the community from which the pool is drawn, Viorst said. It was the pool, not the actual jury, that was the sticking point; Washington wasn’t claiming the jury itself had been racially biased.

He challenged the jury pool at trial. On appeal, his expert witness found minorities were under-represented to a degree mere chance could not explain.

“Mr. Viorst is entitled to a jury chosen at random,” Viorst said. A randomly chosen jury would mean “every citizen had an equal chance of being chosen.”

Justices wanted to know what the test for randomness was; Viorst said the U.S. Supreme Court hadn’t made a determination, so it fell to the states.

He asked justices to find that the U.S. Supreme Court, Colorado statute and state constitution required random selection and that Washington’s jury pool was invalid.

First Assistant Attorney General Matthew Holman said Viorst didn’t answer how random jury selection figured into whether a particular group was unfairly represented under the Sixth Amendment.

He said it was clear jury selection had been constitutional. Additionally, Washington failed to show specific prejudice or injury, as required by statute, Holman said.

Student questions to attorneys after the arguments underscored what was at stake. How, Michael Brown of Paonia High School asked, would a verdict in Washington’s favor affect other trials conducted in Arapahoe County during the same period?

Holman said Washington would get a new trial upon favorable ruling and there was “potential” for others convicted to argue for new trials as well.

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