By Matt Masich, LAW WEEK COLORADO
DENVER — The Colorado Court of Appeals ordered a new trial for Martin Novotny after ruling Thursday that the trial court erred by not dismissing a prospective juror who worked for the attorney general’s office. Novotny was in 2006 convicted of first-degree murder and sentenced to life in prison for stabbing to death ex-girlfriend Ana Elisa Toledo.
During jury selection before the trial, Denver District Judge Daniel Hoffman asked prospective jurors if any of them worked for a law enforcement agency. A man identified as J.D. replied that he worked in the state attorney general’s office with responsibility for representing the Department of Corrections.
Novotny’s defense attorney challenged J.D. for cause on the grounds that he worked for a law enforcement agency. Hoffman denied the challenge, commenting that “the attorney general does a whole bunch of things besides law enforcement” and “this guy works in an area that’s not law enforcement.”
Defense counsel used its last peremptory challenge to block J.D. from getting onto the jury. The jury went on to convict Novotny of premeditated murder. But that conviction was reversed Thursday when a three-judge panel of the Court of Appeals found that Hoffman erred in denying Novotny’s challenge for cause. The attorney general’s office, the panel ruled, is indeed a law enforcement agency.
“Because defendant [Novotny] used a peremptory challenge to remove J.D. and then exhausted his remaining peremptory challenges, we must reverse the judgment of conviction and remand for a new trial,” wrote Judge John Webb in the panel’s opinion, with Judge Diana Terry concurring.
Judge Sean Connelly wrote a special concurrence to point out the “significant social costs” of the Colorado rule requiring new trials in cases like this. Federal courts and most state courts would find the legal error in this case to be harmless based on the 2000 U.S. Supreme Court U.S. v. Martinez-Salazar ruling, Connelly wrote, while the Colorado Supreme Court has “thus far” not adopted that rule.
“Leading commentators agree an otherwise fair conviction should not be reversed simply because the trial judge erroneously denied a for-cause challenge to a prospective juror later removed with a peremptory challenge,” he wrote.
Karen Mahlman Gerash of the state public defender’s office represented Novotny on appeal; Rebecca Adams of the attorney general’s office represented the state.
