For the fourth time in six months, a criminal conviction has been overturned because an Adams County judge erroneously explained the concept of reasonable doubt to jurors in a manner that lowered the prosecution’s burden of proof.

Last week, the state’s Court of Appeals ordered a new trial for Joshua W. Moore because of comments District Court Judge Robert W. Kiesnowski Jr. made during jury selection while attempting to describe reasonable doubt in plain English.

In more than 30 cases since 2010, overwhelmingly from Adams County, the Court of Appeals generally upheld defendants’ convictions while advising trial judges not to freelance with their own analogies for reasonable doubt. Then in January of this year, the Colorado Supreme Court issued its decision in Tibbels v. People, reversing the defendant’s conviction and laying down a new rule for when judges’ illustrations cross the line.

In Tibbels, Kiesnowski also presided over the criminal trial and read jurors the legal definition of reasonable doubt, which involves a doubt that “would cause reasonable people to hesitate to act in matters of importance to themselves.”

“Now, you’re all sitting there saying what the hell does that mean,” Kiesnowski continued. He then provided an example of a family seeking to buy a new home and encountering their “perfect” house. But in the basement, the family sees a crack in the foundation of the home from floor to ceiling.

“And structurally it’s significant. Are you going to buy that house?” Kiesnowski asked. One juror responded in the negative.

“OK. You’ve got a reason,” the judge replied. “And that’s causing you to hesitate, causing you to pause with going forward with a home purchase. This is my example of reasonable doubt.”

The defendant, Ernest Joseph Tibbels, appealed his conviction, claiming Kiesnowski’s analogy reduced the prosecution’s burden of proof to find him guilty. The Supreme Court agreed, explaining that Kiesnowski had first called the legal definition of reasonable doubt into question, then used his analogy to define reasonable doubt as “structurally significant.” Finally, he implied the jury should begin with the assumption Tibbels was guilty, only to acquit him if they discovered a “crack in the foundation” of the case.

During Moore’s trial, Kiesnowski repeated almost word-for-word the reasonable doubt illustration he used in Tibbels’ case. Moore appealed his vehicular eluding and related convictions to the Court of Appeals, which upheld the judgment in November 2019. A three-judge panel at the time called Kiesnowski’s analogy improper and “obvious error,” but did not believe his comments undermined the fairness of Moore’s trial and cast doubt on the guilty verdict.

Moore appealed to the Supreme Court, which held the request for review until it could resolve the Tibbels case. After its ruling earlier this year, the Supreme Court returned Moore’s case to the Court of Appeals for re-examination.

Despite the almost identical nature of the two cases, the Colorado Attorney General’s Office argued against overturning Moore’s convictions, saying Kiesnowski had reminded the jury following his analogy that Moore was innocent until proven guilty. The Court of Appeals was unpersuaded.

“(A)dvising the jury that the presumption of innocence remains with the defendant until he is proven guilty beyond a reasonable doubt does not define reasonable doubt for the jury or explain how to apply it,” wrote Judge David J. Richman in the June 30 opinion. “Thus, we conclude that there is a reasonable likelihood that the jury was left with the impression that the judge’s crack-in-the-foundation illustration accurately explained the concept of ‘reasonable doubt,’ when, of course, it did not.”

In the wake of the Tibbels decision, the Court of Appeals reversed two other convictions out of Adams County because of judges’ improper reasonable doubt analogies. Including Tibbels, Moore’s appeal marks the fourth reversal of a criminal conviction in six months as a result of the same error by Adams County judges.

A spokesperson for Brian Mason, the district attorney for the 17th Judicial District, offered no comment on the trend. Colorado Politics asked Chief Judge Don Quick whether he believed judges in his jurisdiction have now ceased the practice of giving erroneous reasonable doubt illustrations to jurors.

“The bench in the 17th Judicial District discussed the Tibbels decision when it came out last January and have been complying with its instructions,” Quick responded in an email.

The case is People v. Moore.