26 CO 8, 24SC122, Mitchell v. People

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The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
February 2, 2026

2026 CO 8

# No. 24SC122, Mitchell v. People-Criminal Law and Procedure-Equal Protection - Selective Prosecution.

In this case, the supreme court granted certiorari to consider whether the
court of appeals division below erred in affirming the trial court's denial of the
defendant's motion to dismiss for selective prosecution in a case in which the
defendant, who is Black, and his three codefendants were all charged with felony
murder, but only the two non-Black defendants received a plea bargain offer that
allowed them to be tried in juvenile court in exchange for their cooperation with
law enforcement.

The court now concludes that the defendant did not establish that he was
entitled to dismissal based on a claim of selective prosecution because he did not
establish the requisite discriminatory effect or discriminatory purpose by the
People. Specifically, he was not similarly situated to his non-Black codefendants
because, unlike them, he was the one who confronted, shot, and killed the victim.

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Nor did the statistical evidence that he provided establish grounds for dismissal
based on a claim of selective prosecution.

Accordingly, the court affirms the division's judgment.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 8

Supreme Court Case No. 24SC122
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 21CA1676

Petitioner:
Demarea Deshawn Mitchell,

V.

Respondent:
The People of the State of Colorado.

Judgment Affirmed
en banc
February 2, 2026

Attorneys for Petitioner:

Henson Law, LLC

Patrick R. Henson

Denver, Colorado

Attorneys for Respondent:

Philip J. Weiser, Attorney General

Brenna A. Brackett, Assistant Attorney General

Denver, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE
SAMOUR, and JUSTICE BERKENKOTTER joined.

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JUSTICE GABRIEL delivered the Opinion of the Court.

11 We granted certiorari to consider whether the court of appeals division
below erred in affirming the trial court's denial of Demarea Deshawn Mitchell's
motion to dismiss for selective prosecution in a case in which Mitchell, who is
Black, and his three codefendants were all charged with felony murder, but only
the two non-Black defendants received a plea bargain offer that allowed them to
be tried in juvenile court in exchange for their cooperation with law enforcement.

12 We now conclude that Mitchell did not establish that he was entitled to
dismissal based on a claim of selective prosecution because he did not establish
the requisite discriminatory effect or discriminatory purpose by the People.
Specifically, he was not similarly situated to his non-Black codefendants because,
unlike them, he was the one who confronted, shot, and killed the victim. Nor did
the statistical evidence that he provided establish grounds for dismissal based on
a claim of selective prosecution.

13
Accordingly, we affirm the judgment of the division below.

## I. Facts and Procedural History

14
The evidence developed by law enforcement prior to trial in this case tended
to establish the following facts:

15 In the spring of 2019, Mitchell and his three codefendants, Kenneth
Gallegos, J.S., and D.S., all of whom were then juveniles, conspired to rob the

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victim of vaping products. During the incident, Mitchell shot the victim in the
chest, ultimately causing his death.

16 J.S., a Hispanic female, initially planned the robbery with Gallegos, a Black
male, whom she was dating at the time. Gallegos apparently disliked the victim
because the victim was best friends with J.S.'s ex-boyfriend.

17
On the day of the planned robbery, Gallegos called D.S. to see if he could
borrow a gun that D.S. had in his possession. Gallegos told D.S. that he needed
the gun because he was intending to rob the victim of some vaping products.
Gallegos then picked D.S. up in J.S.'s car. D.S. brought the loaded gun with him.
18 Later that afternoon, Gallegos and D.S. called Mitchell to see if he wanted to
hang out for a while. He said that he did, and Gallegos and D.S. picked him up.
While the three of them were hanging out, Gallegos told Mitchell about the plan
to rob the victim, and Mitchell said that "he was down for it." The three then
discussed the plan, which was "to roll down the window and just drive away with
[the vaping products]; but if that didn't . . . work, then they had the gun to . . . pop
out" and scare the victim.

19 After J.S. finished working that day, Mitchell, Gallegos, and D.S. picked her
up. The group then drove to the victim's house to carry out their plan. At this
point, Gallegos was driving, J.S. sat in the front passenger's seat, and D.S. and
Mitchell sat in the rear seats.

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110 When the group arrived at the victim's home, J.S. texted him to let him know
that she was there. The victim came out and walked to where J.S. was seated in
the car. J.S. handed the victim some money, and Mitchell apparently got out of
the car with the gun. The victim then started to walk back to the house, but
Mitchell, who was holding the gun, confronted him. A struggle ensued, and the
victim threw Mitchell to the grass. During the ongoing struggle, Mitchell shot the
victim. The victim screamed and ran into his house, and Mitchell and the three
others fled.

111 A neighbor called the police to report shots fired, and the police responded
to the scene. There, the police found the victim unconscious and bleeding just
inside the doorway of his home with his grandmother and sister around him. The
victim was transported to a hospital where he regained consciousness for a time.
While in the emergency room, he was asked who shot him, and he twice said,
"Kenny" (i.e., Gallegos). He was further asked what school Kenny attended, and
he responded, "Cherokee Trail." Finally, he was asked whether Kenny was a
senior. The victim shook his head and said, "He's a junior." The victim was then
taken into surgery, but he did not survive.

112 Notwithstanding the victim's assertion that "Kenny" had shot him, law
enforcement officers developed substantial evidence indicating that Mitchell, not
Gallegos, was the one who had shot the victim, as described above. Among other

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things, J.S. and D.S. both spoke with the police and directly implicated Mitchell as
the sole triggerman. In addition, Mitchell had sent his girlfriend a Snapchat
message that said, "I did some stuff," with an attachment to a news article about
the shooting. He then sent another message that said, "Shit didn't go as planned."
And it appears that Mitchell was the one who ultimately disposed of the gun.

113 In light of the foregoing events, the People direct filed charges against all
four juveniles in district court. The charges against the four were for felony
murder, aggravated robbery, and conspiracy to commit aggravated robbery. The
People, however, subsequently refiled only the charges of aggravated robbery and
conspiracy to commit aggravated robbery against J.S. and D.S. in juvenile court, in
recognition of their cooperation with law enforcement. The People later extended
plea offers to both J.S. and D.S., and both of them pleaded guilty to the aggravated
robbery count and were sentenced to two years in the Division of Youth Services.
114 For their part, Gallegos and Mitchell, the two Black participants, sought to
have their cases likewise refiled in juvenile court, but the People refused, and these
defendants' cases remained in district court, where they both faced possible prison
terms of life with the possibility of parole after forty years.

115 Mitchell then filed a motion to dismiss for selective prosecution, arguing
that the disparate treatment between him, on the one hand, and the non-Black
codefendants, J.S. and D.S., on the other, rose "to the level of a selective

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prosecution based on race." In support of this argument, Mitchell acknowledged
that to succeed on his selective prosecution claim, he was required to prove that
"(1) the prosecutorial policy had a discriminatory effect and (2) it was motivated
by a discriminatory purpose." He asserted that the prosecution's charging
decisions had a discriminatory effect because the four juveniles were similarly
situated, given that all four were equally culpable under a felony murder theory,
but the People charged only the two Black defendants with that murder while
transferring the non-Black codefendants' cases to juvenile court and then offering
them plea deals not offered to the two Black defendants. He further argued that
he had established the requisite discriminatory purpose by showing that his
disparate treatment was consistent with national, state, and local trends showing
that, "[s]tatistically, Black people are treated differently at all levels of the criminal
justice system."

116 The People responded that Mitchell had not shown either a discriminatory
effect or discriminatory purpose. Specifically, the People argued that Mitchell had
not shown that he was similarly situated to his non-Black codefendants for
purposes of establishing a discriminatory effect because there was "massive factual
distinction" between Mitchell's culpability and that of those codefendants. In
particular, the People argued that Mitchell alone (1) "chose to continue the action
of the robbery, once the victim stepped away from the . .. vehicle"; (2) "chose to

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arm himself with a handgun, step outside of the vehicle, and physically confront[]
the victim"; (3) "fired the shot which killed the victim in this case, during the
physical confrontation which he ... started, to further the robbery"; and
(4) "disposed of the handgun which he used to kill the victim in this case."

117 As to discriminatory purpose, the People asserted that the withholding of a
plea deal from Mitchell was not evidence of unequal treatment because the fact
that some codefendants and not others are offered plea bargains happens
routinely and does not, alone, satisfy a defendant's burden to succeed on a claim
for dismissal. Regardless, here, in addition to the factual differences in the conduct
committed by each of the codefendants, J.S. and D.S. "offered full proffers in
cooperation with law enforcement in advance of any plea bargain being offered,"
thereby justifying differential treatment in plea negotiations.

118 The trial court subsequently denied Mitchell's motion. In so ruling, the
court reasoned that the evidence presented supported a finding that, regardless of
the charges filed, Mitchell's role in the murder was significantly greater than that
of J.S. and D.S. Specifically, the trial court noted that the evidence showed that
Mitchell was the one who had actually shot and killed the victim. In the court's
view, consideration of that fact alone sufficed to allow it to find that Mitchell was
not similarly situated to the individuals who drove to the scene but did not
otherwise participate in the robbery and murder. In addition, the court opined

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that J.S. and D.S. had "each participated in proffers with the district attorney which
included acknowledgment of their respective roles in the crime." In light of the
foregoing, the court found that Mitchell was not similarly situated with his
non-Black codefendants so as to show any discriminatory effect. Finally, the court
concluded that the statistics on which Mitchell had relied did not establish
discriminatory purpose on the part of the People.

119 The case proceeded to trial, and a jury convicted Mitchell of felony murder,
aggravated robbery, and conspiracy to commit aggravated robbery. The trial
court subsequently sentenced him to a controlling term of life in prison with the
possibility of parole after forty years.

120 Mitchell appealed, arguing, as pertinent here, that the trial court had erred
in denying his motion to dismiss based on selective prosecution due to his race.
In his view, he had demonstrated both discriminatory effect (because all four
codefendants had allegedly committed the same felony murder but the People had
made plea offers only to the non-Black codefendants) and discriminatory purpose
(based on statistical evidence purporting to show that Black juveniles are more
likely to be prosecuted as adults in Arapahoe County). The division, however,
affirmed, agreeing with the trial court that Mitchell was not similarly situated to
J.S. and D.S. (for the reasons that the trial court had stated). People v. Mitchell, 2024
COA 7M, 11 25-28, 52, 547 P.3d 412, 418-19, 423. In light of this determination,

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the division did not reach the question of whether Mitchell's statistical evidence
met the threshold for establishing the prosecution's discriminatory purpose. Id. at
1 29, 547 P.3d at 419.

T21 Mitchell petitioned this court for certiorari review, and we granted his
petition.

## II. Analysis

122 We begin by setting forth the applicable standard of review. We next
discuss the law governing claims of selective prosecution. We then apply these
legal principles to determine whether the division below erred in upholding the
trial court's finding that Mitchell had not established a viable claim of selective
prosecution.

### A. Standard of Review

123 "A district court's denial of a motion to dismiss on the ground of selective
prosecution involves both conclusions of law and findings of fact." United States v.
Smith, 231 F.3d 800, 806 (11th Cir. 2000). We review a trial court's factual findings
for clear error and its legal conclusions de novo. Martinez v. People, 2024 CO 6M,
T 24, 542 P.3d 675, 681.

### B. Selective Prosecution Claims

124 Prosecutors are afforded broad discretion in determining whom to
prosecute and the charges to be brought. People v. MacFarland, 540 P.2d 1073, 1075

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(Colo. 1975). This discretion is, however, subject to constitutional limitations.
United States v. Armstrong, 517 U.S. 456, 464 (1996). As pertinent here, under equal
protection principles, the decision whether to prosecute may not be based on
illegitimate standards such as race, religion, or other arbitrary classifications. Id .;
see also MacFarland, 540 P.2d at 1075 (noting that "[e]qual protection is not denied
absent a showing that a prosecutor has exercised a policy of selectivity [in the
enforcement of laws] based upon an unjustifiable standard such as race, religion
or any other arbitrary classification").

125 A selective prosecution claim asserts that a prosecutor has brought a charge
against a defendant for a constitutionally forbidden reason. Armstrong, 517 U.S. at
463. To establish that a prosecutor has engaged in inappropriate selective
prosecution, a defendant must present clear evidence showing that the applicable
prosecutorial policy had a discriminatory effect and was motivated by a
discriminatory purpose. Id. at 465.

126 To establish a discriminatory effect, a defendant must generally produce
some evidence that similarly situated individuals of other races could have been
prosecuted but were not. Id. at 469. In this regard, the Supreme Court has
recognized a number of legitimate factors that might motivate a prosecutor to
bring particular charges against particular defendants. Id. at 465. These include
"the strength of the case, the prosecution's general deterrence value, the

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Government's enforcement priorities, and the case's relationship to the
Government's overall enforcement plan." Id. (quoting Wayte v. United States,
470 U.S. 598, 607 (1985)).

127 Applying these factors, courts have observed that differences in behaviors
and the strength of the evidence may inform whether two defendants are
dissimilarly situated so as to justify different prosecutorial treatment. See, e.g.,
Smith, 231 F.3d at 810 (defining a "similarly situated" person for selective
prosecution purposes as "one who engaged in the same type of conduct, which
means that the comparator committed the same basic crime in substantially the
same manner as the defendant - so that any prosecution of that individual would
have the same deterrence value and would be related in the same way to the
Government's enforcement priorities and enforcement plan-and against whom
the evidence was as strong or stronger than that against the defendant"); Keene v.
Mitchell, 525 F.3d 461, 463-65 (6th Cir. 2008) (concluding that a capital murder
defendant was not similarly situated to others of a different race involved in an
allegedly factually similar murder because the evidence against the defendant was
stronger than the evidence against one of the others, the defendant murdered more
people than the others, and several of the others had cooperated with the
prosecution).

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T28
To show that the prosecution was motivated by a discriminatory purpose, a
defendant must show "more than intent as volition or intent as awareness of
consequences." McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (quoting Pers. Adm'r v.
Feeney, 442 U.S. 256, 279 (1979)). The defendant must show that the prosecution
"selected or reaffirmed a particular course of action at least in part 'because of,'
not merely 'in spite of,' its adverse effects upon an identifiable group." Id. (quoting
Feeney, 442 U.S. at 279). Such evidence of discriminatory purpose may be either
direct or circumstantial. United States v. DeBerry, 430 F.3d 1294, 1299 (10th Cir.
2005).

### C. Application

129
Having set forth these principles, we turn to the facts before us.

130
Mitchell first contends that the division below erred in concluding that he
had not shown a discriminatory effect. We are not persuaded.

131 As noted above, to establish a discriminatory effect in a case like this, a
defendant must generally produce some evidence that similarly situated
individuals of other races could have been prosecuted but were not. Armstrong,
517 U.S. at 469. To assess the prosecution's conduct in a given case, courts may
consider, among other factors, the strength of the case and the prosecution's
enforcement priorities and enforcement plan. Id. at 465.

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132 Here, for several reasons, we conclude that Mitchell has not made the
requisite showing.

133 First and foremost, as the trial court found, Mitchell's role in the victim's
murder was significantly greater than that of the non-Black codefendants. As
noted above, Mitchell escalated the situation by confronting the victim with a
loaded gun when the victim was walking away from the vehicle, and when the
victim attempted to defend himself, Mitchell shot him in the chest. In contrast,
neither D.S. nor J.S. did anything to escalate the robbery attempt in a way that
resulted in the victim's death. For this reason alone, Mitchell was not similarly
situated to them. See Smith, 231 F.3d at 810 (defining a "similarly situated" person
for selective prosecution purposes as one who "committed the same basic crime in
substantially the same manner as the defendant"); see also Keene, 525 F.3d at 462,
465 (concluding that a Black defendant was not similarly situated to his White
codefendant because, unlike the defendant, the codefendant was not the
"triggerman" in the course of any of the murders at issue).

134 Second, the evidence against Mitchell was strong. As noted above, J.S. and
D.S. both implicated Mitchell as the sole triggerman. In addition, Mitchell's
Snapchat messages to his girlfriend the night of the shooting acknowledged that
he had done "some stuff" and that the incident had not "go[ne] as planned," and

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he attached a news article about the shooting. The evidence also showed that
Mitchell was the one who ultimately disposed of the gun.

135 Third, the People's decision to prioritize obtaining a murder conviction from
the person who was directly responsible (and most culpable) for the victim's death
was an appropriate enforcement strategy.

136 Finally, given J.S.'s and D.S.'s more limited roles in the victim's murder and
their willingness to admit their roles and to cooperate in the present prosecution,
the People's decision to offer them plea deals and to rely on their testimony in
bringing the victim's killer to justice was likewise an appropriate prosecutorial
strategy.

137 We are not persuaded otherwise by Mitchell's contention that he was
similarly situated to his non-Black codefendants merely because they were all
charged with felony murder at the inception of the case. "Determining whether a
[defendant] is similarly situated to those not prosecuted [is] a fact-intensive and
case-specific comparative inquiry," not a charge-specific one. Frederick Douglass
Found., Inc. v. District of Columbia, 82 F.4th 1122, 1138 (D.C. Cir. 2023). A defendant
who shares a criminal charge with others cannot by virtue of the shared charge
alone be said to be similarly situated with those others. In re United States, 397 F.3d
274, 285 (5th Cir. 2005); see also United States v. Wilson, 123 F.4th 1021, 1028 (9th Cir.

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2024\) ("To be similarly situated means more than merely committing the same
crime in the same place.").

138 We likewise are unpersuaded by Mitchell's assertion that the statistical
evidence that he produced showing unequal treatment of Black adults and
juveniles in United States and Colorado courts generally and in the Eighteenth
Judicial District in particular established a discriminatory effect. Standalone
statistical evidence, without a showing that those involved were similarly situated,
seldom suffices to prove discriminatory effect. See Chavez v. Ill. State Police,
251 F.3d 612, 638 (7th Cir. 2001) ("[P]arties may not prove discrimination merely
by providing the court with statistical analyses. The statistics proffered must
address the crucial question of whether one class is being treated differently from
another class that is otherwise similarly situated."); cf. United States v. Mesa-Roche,
288 F. Supp. 2d 1172, 1187-88 (D. Kan. 2003) (noting the importance of statistical
evidence in traffic stop cases because of the virtual impossibility of identifying
similarly situated individuals who were not stopped).

139 Here, Mitchell did not show how the statistics that he cited established that
Black defendants were treated differently from similarly situated non-Black
defendants.

140 In this regard, Armstrong, 517 U.S. at 458-59, 470, is instructive. In
Armstrong, the defendants were indicted in federal court for selling crack, and they

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filed a motion for discovery or dismissal, alleging that they were selected for
federal prosecution because they were Black. Id. at 458-59. In support of this
motion, the defendants offered only an affidavit from a "Paralegal Specialist" with
the Federal Public Defender's Office, asserting that in every one of the twenty-four
cases in which clients of that office were charged under the same statute as the
defendants, the client was Black. Id. at 459. Attached to this affidavit was a
"study" listing the twenty-four defendants, their race, whether they were
prosecuted for selling cocaine as well as crack, and each case's status. Id. The
Court ultimately concluded that the study did not constitute some evidence to
support a selective prosecution claim because it did not "identify individuals who
were not Black and could have been prosecuted for the offenses for which [the
defendants] were charged, but were not so prosecuted." Id. at 470 (emphasis
added).

141 In the matter before us, as was the case with the statistical evidence
presented in Armstrong, Mitchell's statistical evidence did not demonstrate that
any similarly situated non-Black person escaped prosecution for felony murder.
Although Mitchell's statistical evidence focused on the disparate treatment
experienced by Black adults and juveniles generally in courts throughout the
United States, in Colorado, and in the Eighteenth Judicial District, the evidence
did not include the facts underlying the cases involving non-Black defendants.

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Nor did the evidence indicate the crimes charged in such cases or the result of
those prosecutions. Without such information, we cannot determine whether
these persons were similarly situated to Mitchell such that their disparate
prosecutorial treatment was unjustified.

142 For these reasons, we conclude that the division correctly determined that
Mitchell was not similarly situated to J.S. and D.S. and that Mitchell therefore did
not show the discriminatory effect necessary to support his selective prosecution
claim.

143 Even if Mitchell could argue that he produced some evidence of
discriminatory effect, however, we would still conclude that he did not establish a
right to dismissal based on selective prosecution because he did not show the
requisite discriminatory purpose.

144 Mitchell contends that he established such a purpose in three ways. First,
he provided statistical evidence demonstrating the disproportionate rate at which
Black juveniles are arrested, prosecuted as adults, and imprisoned in Colorado.
Second, he relies on the People's decisions (1) to withhold a plea deal from him;
(2) to question him at his reverse transfer hearing about his prior contacts with law
enforcement; and (3) to emphasize at the reverse transfer hearing his individual
culpability in the shooting but then to change course at trial and argue that it did
not matter to the jury's decision that "nobody meant for anybody to die." Third,

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Mitchell contends that the People were aware "that a conviction was more likely
to enter against a Black juvenile over a non-Black juvenile in the 18th judicial
district and that such a conviction would result in a prison sentence in adult
court." In Mitchell's view, this knowledge motivated the People to treat him
differently from his non-Black codefendants. Again, we are unpersuaded.

145 As noted above, to establish the People's discriminatory purpose, Mitchell
was required to introduce direct or circumstantial evidence that the People
engaged in a particular course of conduct at least in part because of, not merely in
spite of, its effect on Mitchell due to his race. See McCleskey, 481 U.S. at 298;
DeBerry, 430 F.3d at 1299. He did not satisfy this burden here.

146 With respect to Mitchell's proffered statistical evidence, for the same
reasons that this evidence did not establish a discriminatory effect, it did not
establish a discriminatory purpose. Moreover, Mitchell did not tie his general
statistical evidence to the People's conduct in this case.

147 With respect to the People's decision to offer plea deals to the non-Black
codefendants and to withhold a similar offer from Mitchell, as noted above,
Mitchell's role in the victim's murder was significantly greater than that of the
non-Black defendants (he was the one who escalated the attempted robbery and
then shot and killed the victim), and this alone warranted treating these
participants differently.

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148 With respect to the People's decision to question Mitchell at the reverse
transfer hearing regarding his criminal history and his culpability for the murder
at issue, as Mitchell acknowledges, inquiry into a juvenile's record, criminal
history, and whether the juvenile used, or possessed and threatened to use, a
deadly weapon in the commission of a delinquent act are factors that a court must
consider in a reverse transfer hearing (a proceeding in which a juvenile whose case
has been direct filed in district court petitions to have the case transferred to
juvenile court). § 19-2.5-801(4)(b), C.R.S. (2025). Nor do we view the People's
different approaches at the reverse transfer hearing and at trial as indicative of the
People's discriminatory purpose. Instead, the People's approaches reflected the
different issues before the court at the respective proceedings. As noted above,
the reverse transfer hearing required the court to consider certain factors. See id.
At trial, the prosecution's approach was guided by the elements of the offenses
that it was trying to prove. And Mitchell himself acknowledges that for purposes
of proving felony murder, it was immaterial whether any of the participants
wanted the victim to die. See § 18-3-102(1)(b), C.R.S. (2019) (setting forth the
elements of felony murder at the time the crime at issue was committed); see also
§ 18-3-103(1)(b), C.R.S. (2025) (setting forth the current elements of felony murder).
149 Finally, as to Mitchell's contention that the People knew that a conviction
was more likely to enter against a Black juvenile over a non-Black juvenile in the

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Eighteenth Judicial District and that such a conviction would result in a prison
sentence if tried in the district court, Mitchell produced no evidence to support
this assertion. Nor did he produce evidence to show that any such knowledge on
the part of the People somehow influenced their prosecutorial decisions in this
case, and we view such a logical leap as mere speculation.

150 Accordingly, we conclude that even had Mitchell presented sufficient
evidence of a discriminatory effect, he did not satisfy his burden of showing the
requisite discriminatory purpose.

## III. Conclusion

151
For these reasons, we conclude that Mitchell did not satisfy his burden of
showing that the People's conduct in this case had a discriminatory effect and was
motivated by a discriminatory purpose. Accordingly, we perceive no error in the
division's decision to uphold the trial court's order denying Mitchell's motion to
dismiss based on the People's alleged selective prosecution.

152 We therefore affirm the division's judgment.