Welcome to Court Crawl, Colorado Politics’ roundup of news from the third branch of government.

The judicial branch revised its model definition of “beyond a reasonable doubt” for jury trials, plus Masterpiece Cakeshop, the Lakewood business whose case reached the U.S. Supreme Court five years ago, was the subject of another state court decision.

Reasonable doubt definition

?  The Model Criminal Jury Instructions Committee, whose updates to the template jury instructions are normally low-key affairs, generated shockwaves on Friday when it revised the definition of “beyond a reasonable doubt” for criminal trials. The small, all-judges committee didn’t consult with anyone else and didn’t provide a formal heads-up, although its meeting minutes from the summer and fall did reveal this to be an active topic of conversation.

?  Prosecutors appeared supportive of the simpler wording, while defense attorneys were livid. For context, the old instruction was a mouthful and essentially told jurors that reasonable doubt is something that would “cause reasonable people to hesitate to act in matters of importance to themselves.” Now, jurors must be “firmly convinced” of a defendant’s guilt, with no “real possibility” he or she is innocent.

?  The public defender’s office believes the new definition “unfairly favors the government and will lessen the burden of proof in everyday jurors’ minds.” However, the wording resembles the model instruction used in Colorado’s federal trial court. Here’s the federal instruction:

And here’s the state instruction:

?  Once trial judges start giving the new instruction to juries, there will likely be challenges on appeal, so stay tuned.

SCOTUS connection to Colorado 

?  In 2018, the U.S. Supreme Court issued its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case ostensibly about whether state anti-discrimination laws could compel someone to speak in violation of their First Amendment rights. Specifically, whether cake maker Jack Phillips of Lakewood had to bake a cake – the “speech” – for a gay couple, even though he is religiously opposed to same-sex marriage. The Supreme Court ultimately left the question unanswered, deciding the case on narrower grounds.

?  Last week, the state’s Court of Appeals found Phillips violated Colorado’s anti-discrimination law again when he declined to make a cake for a transgender customer based on her gender identity. Further, the court discerned no violation of Phillips’ First Amendment rights. Phillips’ lawyers said they will appeal, and the appeal will likely be pending when the Supreme Court hands down its decision this year in 303 Creative v. Elenis, which will answer the compelled speech question once and for all.

?  SCOTUS also agreed to take an appeal out of Colorado earlier this month, implicating how prosecutors prove someone made a “true threat” that is not First Amendment-protected speech. Like Masterpiece Cakeshop, the justices in this appeal, People v. Counterman, will review a decision directly from the Court of Appeals, rather than Colorado’s Supreme Court. Colorado Politics looked at the recent cases that have come before SCOTUS from our state courts, and spoke with one appellate judge whose opinions appeared twice in front of the nation’s highest court.

Heard on appeal

?  The Colorado Supreme Court clarified the government’s burden of proof in welfare cases for showing a child suffered a serious bodily injury and no treatment plan would help the parent become fit.

?  The U.S. Court of Appeals for the 10th Circuit decided Aurora officers committed no clear constitutional violation when they entered a man’s home without a warrant to do a “protective sweep” and retrieve his sleeping infant. A trial judge had agreed the officers’ actions could violate the Fourth Amendment’s prohibition on unreasonable searches and seizures, but no prior case deemed such an entry unconstitutional.

?  Even though Congress legalized hemp production in 2018 and said states can’t interfere with its transport, the 10th Circuit decided a hemp producer couldn’t sue when a police officer confiscated his plants at Denver International Airport.

?  The 10th Circuit dismissed a First Amendment challenge to Northglenn’s sidewalk obstruction ordinance from a man who was cited during his routine protest of a mosque.

?  A panel of 10th Circuit judges was skeptical that a former Denver custodian was fired, as she alleges, for being white, instead of the city’s stated reason for terminating her: that she represented herself as a police officer online.

?  Frontier Airlines was not required to accommodate a flight attendant’s alcoholism by allowing her to piece together a schedule that would avoid layovers, the 10th Circuit decided.

?  The Colorado Supreme Court will hear an appeal out of Denver that asks what type of information school administrators may rely upon to search a student without a warrant.

In federal news

?  Three civic groups sued a Colorado organization that believes the 2020 presidential election was fraudulent. The defendant then turned around and sued the civic groups for defamation. A federal judge has now tossed the defamation claim.

?  A woman who uses the language of the anti-government “sovereign citizen” movement is being prosecuted in Eagle County for allegedly sending fake tax documents to judges and law enforcement. She filed suit against the district attorney in federal court and asked to be put on a “Do not detain” list. A judge dismissed the lawsuit.

Vacancies and appointments

?  There are two finalists to succeed former District Court Judge Mark D. Thompson in the Fifth Judicial District (Clear Creek, Eagle, Lake and Summit counties): Courtney Holm and Lake County Court Judge Jonathan Shamis.

?  Three people are in the running to replace now-District Court Judge Anthony Nathaniel Baca in his old job as Dolores County Court judge: clerk of court and jury commissioner Anne Deyell-Lawrence, Ian MacLaren and Matthew Margeson.

?  Applications are due by Feb. 7 to succeed District Court Judge John E. Scipione in the 18th Judicial District (Arapahoe, Douglas, Elbert and Lincoln counties). Scipione resigned in the face of a misconduct investigation into his extramarital affair with a clerk.

Miscellaneous proceedings

?  A committee of the Office of Attorney Regulation Counsel released the findings in its investigation of former Chief Justice Nathan B. Coats.

?  U.S. Rep. Doug Lamborn settled a federal lawsuit brought by a former staff member, who made allegations related to COVID-19 safety and misuse of office resources.

?  A bill is working its way through the state legislature to modify procedures for juvenile defendants who are found incompetent to stand trial.

Court Crawl on vacation

?  Court Crawl will be off next Monday, but be aware that the Colorado Supreme Court is back for oral arguments next week. Among the cases being heard is Cruz v. People, which asks whether it’s constitutional to revoke someone’s release from a mental health commitment solely for refusing to cooperate in an exam. Also, the Supreme Court will take public comment on a proposed rule change to reduce racial bias in jury selection.