Colorado law does not define “universal malice.” No other state’s murder laws mention universal malice. And an Adams County judge did not tell Cristobal Fernando Garcia’s jury what universal malice meant.

On Tuesday, the state Supreme Court considered the possibility that Garcia’s attempted murder conviction may require reversal if the absence of a definition led to a faulty understanding of whether he had “an attitude of universal malice” when he fired a gun on a public street.

“Without going to the case law, there’s no way I could recite a proper, accurate and full definition of the term ‘universal malice,’ and it’s unreasonable to expect lay jurors to be able to do so,” argued Deputy State Public Defender Joseph P. Hough.

The government countered that Garcia’s jury expressed no confusion about the term while they were deliberating, and trial judges are within their right to withhold a definition under that scenario.

“My son is about to be matched in Colorado’s first class of universal preschool – preschool for all 4-year-olds in the state. And in 2017, when the jury trial occurred, the jurors would have been well aware of the debate surrounding universal healthcare in the 2016 election,” said Senior Assistant Attorney General Erin K. Grundy. “When we add ‘malice,’ is ‘universal’ somehow less clear? It’s not.”

Prosecutors charged Garcia with attempted murder after he fired a gun in the vicinity of his girlfriend and her sister one night. The bullets did not hit anyone. The law under which he was charged required the government to prove Garcia acted under circumstances “evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

Garcia’s counsel suggested a jury instruction defining universal malice as a “depravity of the human heart” which causes someone to kill “upon slight or insufficient provocation, without knowing or caring who may be the victim.” Chief Judge Don Quick rejected the definition and the jury never asked for one. It convicted Garcia on one count of attempted murder and a related, lesser offense.

On appeal, the Court of Appeals recognized Colorado law contains no definition of “universal malice,” nor do the template jury instructions. Nevertheless, the term “connotes an unrestricted willingness to do harm without sufficient justification,” concluded a three-judge appellate panel. Because the context conveyed that requirement, no further definition was necessary.

However, members of the Supreme Court were not so sure.

“Let’s say jurors didn’t express any confusion about reasonable doubt because they’ve heard it on TV,” said Justice Monica M. Márquez during oral arguments. “Are we saying that unless jurors express confusion about reasonable doubt, we need not instruct juries on reasonable doubt?”

Grundy replied that when there is a “technical or legal meaning that differs from the common understanding, courts should give that instruction.”

“Universal malice does have a technical meaning,” interjected Márquez. “It’s a willingness to take human life indiscriminately. That’s more than just generally being mad at the world.”

The government and the defense agreed that no other state apparently uses “universal malice” in their homicide laws. The Supreme Court has independently defined it to mean killing indiscriminately without provocation.

But Garcia’s argument centered around a basic logistical question: How were his jurors supposed to know that?

“It’s not something you hear on TV, it’s not something you read about,” argued Hough. To him, the circumstances could support a charge of menacing, but without guidance from the judge, Garcia’s jury might have wrongly believed the government proved attempted murder.

“Language is constantly changing, right?” observed Justice Maria E. Berkenkotter. “Are you suggesting that the rule should be, ‘Go and define everything that seems kind of archaic?'”

Yes, Hough answered, so that it is clear prosecutors proved the charges beyond a reasonable doubt.

“It feels like we’re being asked to rewrite this statute,” cautioned Chief Justice Brian D. Boatright.

While Grundy endorsed the idea that universal malice means a willingness to harm others indiscriminately, she disputed the broader need to define archaic terms and particularly in Garcia’s case.

“There were three bullets fired at night, in the dark, on a neighborhood street where there were at least five other people around,” Grundy argued. “Shooting into a public street without knowing who’s there is a quintessential example of universal malice.”

The case is Garcia v. People.