The Colorado Supreme Court affirmed a lower court's denial of a selective prosecution motion filed by a Black defendant in a felony murder case, ruling that differential treatment of co-defendants did not constitute discriminatory prosecution.
In *Mitchell v. People of the State of Colorado* (2026 CO 8), the court addressed whether Demarea Deshawn Mitchell was entitled to dismissal of charges based on selective prosecution claims. Mitchell, who is Black, was charged with felony murder alongside three co-defendants. However, only the two non-Black co-defendants received plea bargain offers that would have allowed them to be tried in juvenile court in exchange for their cooperation with law enforcement.
Mitchell argued that this differential treatment constituted selective prosecution based on race, filing a motion to dismiss the charges against him. Both the trial court and the Colorado Court of Appeals denied his motion, prompting Mitchell to seek review from the state's highest court.
The Colorado Supreme Court granted certiorari to consider whether the lower courts erred in affirming the denial of Mitchell's selective prosecution motion. The case presented important questions about when differential treatment of co-defendants might constitute impermissible discrimination in prosecution decisions.
To establish a selective prosecution claim, a defendant must demonstrate both discriminatory effect and discriminatory purpose by prosecutors. The discriminatory effect prong typically requires showing that similarly situated defendants of different races were treated differently by the prosecution.
The court found that Mitchell failed to meet this threshold requirement. Writing for the unanimous court, Justice Gabriel explained that Mitchell was not similarly situated to his non-Black co-defendants because of his distinct role in the underlying crime. Unlike his co-defendants, Mitchell was the person who "confronted, shot, and killed the victim," according to the court's opinion.
This factual distinction proved crucial to the court's analysis. The prosecution's decision to offer different plea arrangements was based on the defendants' varying levels of culpability and cooperation potential, rather than their race. The two co-defendants who received favorable plea offers were positioned to provide testimony against Mitchell as the actual shooter, making their cooperation valuable to the prosecution's case.
The court also addressed statistical evidence that Mitchell presented to support his selective prosecution claim. However, the justices found that this evidence did not establish grounds for dismissal, though the opinion's available excerpt does not detail the specific nature of the statistical analysis.
Selective prosecution claims face a high evidentiary bar, requiring defendants to prove that prosecutorial decisions were motivated by discriminatory intent rather than legitimate prosecutorial considerations. Courts generally defer to prosecutorial discretion in charging and plea bargain decisions, recognizing that prosecutors must make strategic choices based on factors including strength of evidence, defendant cooperation, and resource allocation.
The case highlights the ongoing challenges defendants face in proving selective prosecution claims, particularly in cases involving multiple co-defendants with varying degrees of culpability. While the law prohibits prosecution decisions based solely on race or other protected characteristics, courts require clear evidence of discriminatory intent that goes beyond mere statistical disparities.
Mitchell's case also illustrates how factual differences between co-defendants can justify differential treatment in the criminal justice system. Prosecutors routinely offer more favorable terms to defendants who can provide substantial assistance in prosecuting others, particularly those who played more central roles in alleged crimes.
The decision affirms established precedent that prosecutorial discretion extends to plea bargaining decisions, provided those decisions are based on legitimate law enforcement objectives rather than impermissible discrimination. The court's emphasis on Mitchell's role as the actual shooter demonstrates how individual circumstances can override claims of disparate treatment.
The ruling comes amid ongoing national discussions about racial disparities in the criminal justice system and prosecutorial decision-making. While advocacy groups continue to raise concerns about potential bias in charging and sentencing decisions, courts maintain that statistical disparities alone do not prove discriminatory intent without additional evidence of purposeful discrimination.
For defense attorneys handling cases with multiple defendants, the decision reinforces the importance of establishing that clients were truly similarly situated to those who received more favorable treatment. Mere demographic similarities may not suffice if prosecutorial decisions can be explained by legitimate differences in culpability, cooperation potential, or other case-specific factors.
The Colorado Supreme Court's unanimous decision in *Mitchell* provides guidance for future selective prosecution claims while upholding traditional prosecutorial discretion in charging and plea bargain decisions. The case will likely be cited in similar challenges involving differential treatment of co-defendants in multi-defendant criminal cases.