The Colorado Supreme Court will decide whether a judge’s comments to prospective jurors impermissibly made it easier for prosecutors to convict the defendant, and also whether an unlawful arrest influenced a subsequent warrant to search the defendant’s cell phone.

William Scott Pettigrew entered into a relationship with a 17-year-old girl in 2013, after which he encouraged her to become a prostitute. The victim’s mother informed police and officers arrested him. Pettigrew disclosed some of his text messages during his interrogation, but police released him from custody on the same day because his arrest happened without a warrant, which raised concerns of legality.

After officers again arrested Pettigrew with a warrant, Adams County prosecutors charged him with soliciting child prostitution, sexual exploitation of a child and attempted inducement of child prostitution, among other counts. Law enforcement maintained custody of Pettigrew’s since the first encounter.

Pettigrew argued that because police unlawfully arrested him the first time, the information they obtained from his phone was inadmissible. The trial court denied Pettigrew’s motion and a jury convicted him of pandering of a child and tampering with a witness or victim, and no other charges.

On appeal, Pettigrew made two claims. First, he contended that statements to prospective jurors from District Judge Francis C. Wasserman had the effect of lowering the prosecution’s burden of proof to convict him. Pettigrew quoted five exchanges between Wasserman and the jury, in which the judge discussed the standard of “beyond a reasonable doubt.”

In one conversation, Wasserman, who first attempted to illustrate reasonable doubt by referencing the fictional television lawyer Perry Mason and the show “CSI,” pivoted to a juror’s birthday.

“I can throw out maybe your birth certificate is wrong, maybe your mother wasn’t aware of the date,” he said. “But I would suggest to you, [the prospective juror], on November 18, you are going to recognize that as your birthday, aren’t you?”

The juror answered in the affirmative. 

“I haven’t created a reasonable doubt, have I?” Wasserman continued. “That’s the important thing. It’s not to remove all doubt, every doubt, every vague or imaginative doubt. The burden is on the prosecution to remove all reasonable doubt.”

Judge Michael H. Berger, writing for the three-member Court of Appeals panel, wrote in a March 2020 opinion that nothing Wasserman said improperly changed the standard for conviction.

“Even if portions of these statements were potentially confusing,” Berger explained, “they did not lower the burden of proof because the last quoted sentence was a correct statement of the law: it is the prosecution’s burden to prove the defendant’s guilt beyond a reasonable doubt.”  

The appellate panel did acknowledge that Wasserman, in response to a juror’s question about why Pettigrew was charged with some crimes but not others, answered: “we try people when there’s evidence to support the charges.” Berger deemed it a “more problematic” answer because Wasserman implied there was evidence to support the prosecution. However, Wasserman added that Pettigrew was “presumed innocent,” and therefore his statement was not harmful in the panel’s eyes.

Pettigrew’s second argument on appeal, the illegality of the cell phone evidence, was the subject of a prior appellate panel’s decision. In that instance, the judges determined the warrant for Pettigrew’s arrest did not hinge upon information learned from the unlawful search and seizure of his cell phone. They asked the trial court to determine whether the detective’s decision to seek a warrant likewise stemmed from the cell phone, and the subsequent answer was no.

The second appeals panel considered anew the independent source rule, which allows admission of unconstitutionally-discovered evidence if law enforcement obtained it separately. Reviewing the trial court’s decision, the appellate panel agreed that police had not depended upon the first arrest to effectuate the second.

“The record demonstrates that the police knew that Pettigrew was texting the victim about child prostitution before the unlawful arrest and seizure of Pettigrew’s phone,” Berger wrote. “This was more than sufficient probable cause to believe that Pettigrew had engaged in criminal conduct, completely independent of information obtained from the unlawful arrest.”

The state Supreme Court, in an announcement on Monday, indicated it will hear Pettigrew’s appeal and consider whether Wasserman impermissibly lowered the burden of proof, as well as the question of whether to uphold the warrant in which virtually all descriptive information about Pettigrew’s phone came from the first arrest.

The case is Pettigrew v. People.