The Colorado Supreme Court affirmed a lower court's decision rejecting a selective prosecution claim by a Black defendant who argued he was discriminated against when prosecutors offered plea deals to his non-Black co-defendants but not to him in a felony murder case.
In *Mitchell v. The People of the State of Colorado* (2026 CO 8), the court ruled that Demarea Deshawn Mitchell failed to establish either discriminatory effect or discriminatory purpose by prosecutors, both required elements for a successful selective prosecution claim under constitutional law.
The case centered on a felony murder charge involving Mitchell and three co-defendants. While all four defendants were initially charged with felony murder, only 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, who is Black, and one other defendant did not receive similar offers.
Mitchell filed a motion to dismiss the charges against him, claiming selective prosecution based on racial discrimination. The trial court denied the motion, and the Colorado Court of Appeals affirmed that denial. The Colorado Supreme Court granted certiorari to review whether the court of appeals erred in its decision.
In its opinion issued Feb. 2, the Supreme Court of Colorado concluded that Mitchell was not similarly situated to his co-defendants who received the plea offers. The court emphasized that unlike the other defendants, Mitchell was the one who "confronted, shot, and killed the victim." This distinction in the defendants' roles and culpability levels provided a legitimate, non-discriminatory basis for the different prosecutorial treatment.
To establish a claim of selective prosecution, defendants must prove both discriminatory effect and discriminatory purpose. Discriminatory effect requires showing that similarly situated defendants were treated differently. Discriminatory purpose requires demonstrating that prosecutors acted with intent to discriminate based on race or other protected characteristics.
The court found that Mitchell failed to meet the first prong because his direct role as the shooter distinguished him from his co-defendants. The prosecution's decision to offer different plea arrangements based on the defendants' varying levels of culpability and willingness to cooperate represented standard prosecutorial discretion rather than discriminatory treatment.
Mitchell also presented statistical evidence attempting to support his selective prosecution claim, but the court determined this evidence was insufficient to establish grounds for dismissal. The court did not detail the specific statistics in the advance sheet headnote, but noted that the evidence failed to demonstrate a pattern of discriminatory prosecution.
The case highlights the high burden defendants face when claiming selective prosecution. Courts generally defer to prosecutorial discretion in charging decisions and plea negotiations, recognizing that prosecutors must consider numerous factors including the strength of evidence, defendants' criminal histories, their roles in alleged crimes, and their willingness to cooperate with ongoing investigations.
Selective prosecution claims are rarely successful because they require clear evidence that similarly situated defendants received different treatment based solely on race or other impermissible factors. Courts typically find that differences in treatment can be explained by legitimate prosecutorial considerations such as varying degrees of culpability, cooperation with authorities, or strength of evidence against individual defendants.
The decision reinforces established precedent that prosecutorial charging decisions receive significant deference from courts absent clear evidence of discriminatory intent. The fact that defendants of different races received different treatment alone is insufficient to establish selective prosecution if other legitimate factors explain the disparate treatment.
The case was heard by the Colorado Supreme Court en banc, with Chief Justice Marquez and Justices Boatright, Hood, Samour, and Berkenkotter joining the opinion. Mitchell was represented by Patrick R. Henson of Henson Law, LLC in Denver. The state was represented by Attorney General Philip J. Weiser and Assistant Attorney General Brenna A. Brackett.
The ruling comes as prosecutors nationwide face increased scrutiny over potential racial disparities in charging and sentencing decisions. However, courts continue to recognize prosecutorial discretion as essential to the functioning of the criminal justice system, requiring defendants to meet high evidentiary standards when challenging prosecutorial decisions as discriminatory.
The Colorado Court of Appeals case number was 21CA1676. The Supreme Court's affirmance of the lower court decisions means Mitchell's selective prosecution claim has been exhausted through the state court system, and his felony murder prosecution can proceed in the trial court.