Colorado law generally prohibits local prosecutors from charging defendants with a criminal offense if they have already been prosecuted for the same conduct by “the United States, or another state, or … a municipality.”

But what about another country?

A Mesa County jury found Rafael Aguilar Garcia guilty of murder in 2017, nearly three decades after he killed Charles Porter and five years after Mexico’s judicial system acquitted him of the offense. Now, Garcia is arguing to the Colorado Supreme Court that his conviction violates the prohibition on double jeopardy, which can shield defendants from being prosecuted twice for the same act.

On the one hand, Colorado’s law against multiple prosecutions does not specifically mention other nations. On the other hand, the Supreme Court’s own precedent suggests that a prosecution by “any separate sovereign” triggers the bar against double jeopardy in Colorado.

“Do you see evidence that the intent behind the statute was to bar dual prosecutions like this one?” asked Justice Melissa Hart during oral arguments on Wednesday.

“The fact that they didn’t actually include or exclude foreign countries means to me it’s sort of an open question,” responded Deputy State Public Defender Joseph P. Hough.

There was no dispute that Garcia killed Porter in 1989. Evidence indicated Garcia was jealous of Porter’s relationship with his ex-wife, and Garcia later claimed he committed – at most – manslaughter by acting in a form of self-defense. Garcia fled to Mexico, where he was a citizen, and the Mexican government reportedly would not extradite him because of the potential death penalty Garcia would face in the United States.

Instead, state authorities sent a “casebook” with evidence to Mexico so that Mexican authorities could prosecute him under Article IV of its federal penal code. Article IV applies to Mexican citizens in Mexico who have committed a crime in another country. To qualify, the offense has to be a crime in both countries and the defendant cannot have been already tried in the country where he committed the crime.

After proceedings that did not involve sworn testimony or a jury trial, Mexico’s judiciary acquitted Garcia in 2012.

“Zero crossed my mind about double jeopardy,” former Mesa County District Attorney Peter Hautzinger later said. “I was assuming he’d be convicted in the Mexican case.”

In 2016, Garcia returned to Colorado, on the advice of an attorney who believed double jeopardy prohibited another prosecution for Porter’s killing. Instead, authorities arrested him and tried him for murder.

Following his conviction, a three-judge panel for the Court of Appeals believed the “dual sovereignty doctrine,” which allows separate government entities to prosecute a person for an offense that violates each of their laws, allowed for Garcia’s prosecution. In doing so, it rejected the notion that the Mexican prosecution was a “sham” that Colorado actually controlled.

The panel also rejected a 1990 Colorado Supreme Court decision that interpreted the state prohibition against multiple prosecutions to “abolish the dual sovereignty doctrine.” Because that case was about tribal and state prosecutions, the Court of Appeals believed it had nothing to do with other countries.

The current Supreme Court was similarly unsure that Colorado’s double jeopardy prohibition for prosecutions by “another state” applied to countries.

“How do we read ‘foreign nation’ into ‘another state?'” asked Justice Richard L. Gabriel.

“Especially when the General Assembly seems to, elsewhere in the Colorado code, refer specifically to a foreign country when it intends to do so,” added Justice Monica M. Márquez.

Garcia argued in the alternative that Mexico’s prosecution was so closely tied to Colorado’s justice system that Colorado effectively dominated, controlled or manipulated the process and double jeopardy should still apply.

“The prosecution in Mexico was basically a shell for the prosecutors in Colorado, who gave the packet of materials for the prosecution over to the Mexican government,” Hough said.

“Is that really enough?” asked Justice Maria E. Berkenkotter. “If there’s encouragement or I send a binder full of information, does that get you to ‘dominates, controls and manipulates’?”

The Colorado Attorney General’s Office countered that it did not coerce Mexico into prosecuting Garcia. Further, even if the former district attorney believed double jeopardy applied following Garcia’s acquittal, he was mistaken, said Senior Assistant Attorney General Brian M. Lanni.

Lanni also contended the U.S. Constitution’s prohibition on double jeopardy should not be understood to allow “foreign acquittals to protect domestic criminals.”

“The attorney general brought up the fact that we can’t always trust foreign governments to do the right thing,” responded Hough. “But I think we can’t always trust some of the states, particularly some of the southern states, to be quite frank … to do the right thing either.”

The case is Garcia v. People.