In an unusual move, Colorado’s second-highest court last month withdrew its opinion ordering a new trial for a man convicted of assault, then issued a new decision with heavily modified reasoning.

Originally, a three-judge panel for the Court of Appeals overturned Amos Rogers’ criminal convictions and 64-year sentence in October. It reasoned a Denver trial judge improperly blocked a key witness from testifying that he secretly spiked Rogers’ drink with LSD, causing Rogers to behave erratically around police officers.

The panel concluded the statute of limitations had expired and the witness could not be prosecuted for drugging Rogers. Therefore, there was no reason to preclude him from testifying about his alleged actions.

However, after the government asked the panel to reconsider, it issued a new opinion on Jan. 25. Judge Matthew D. Grove acknowledged the witness could, in fact, have still faced criminal charges under federal law if he testified to drugging Rogers. Nonetheless, it was still a mistake to prevent jurors from hearing that the witness admitted to an investigator he had drugged Rogers.

It is “clear that there were significant corroborating circumstances that demonstrated the statements’ trustworthiness,” wrote Grove in the modified opinion.

Approximately 2,300 cases are filed in the Court of Appeals each year. The court’s clerk told Colorado Politics there are around 300 annual requests for reconsideration, covering opinions and also orders dismissing an appeal. Multiple attorneys said it is rare for an appellate panel to modify its reasoning and issue a new decision in response to a petition.

“Personally, I can count on one hand, in hundreds and hundreds of appeals, the number of times that has happened,” said appellate lawyer Meredith O’Harris.

In April 2016, Rogers went to a house where some people were partying. At one point, someone brought him a drink. After departing with a woman, Rogers began to hallucinate. The woman left Rogers with a backpack with a gun inside and, for reasons he could not recall, he wound up near South Broadway in Denver the next day.

An officer responded to a 911 call of suspicious behavior, only to see Rogers point a semiautomatic pistol at him and appear to pull the trigger. The gun did not fire and Rogers eventually surrendered. Police recovered two guns and methamphetamine from Rogers.

Rogers did not stand trial until four years later. He testified that his friend had dropped acid in his drink and at the time Rogers encountered the officer, he believed a “spaceship” was chasing him and “lizard people” were saying they would eat him.

The defense attempted to call Rogers’ friend to testify. The friend allegedly had admitted to a defense investigator that he did put LSD in Rogers’ drink.

Concerned about the friend’s Fifth Amendment right against self-incrimination, the prosecution asked then-District Court Judge Edward D. Bronfin to appoint an attorney to advise him. Outside the jury’s presence, the friend then declined to answer questions about giving Rogers LSD.

Because the friend could face state criminal charges and was exercising his constitutional right not to testify, Bronfin ruled the man need not take the witness stand at all.

On appeal, Rogers argued it was unnecessary to shield the friend from testifying, as he could not possibly face charges due to the statute of limitations. The appellate panel agreed, with Grove writing the jury never heard the “powerful evidence” supporting Rogers’ defense of involuntary intoxication. It ordered a new trial.

Days after the original decision, the government asked the panel to reconsider. It noted the witness could still be prosecuted under federal law, even if Colorado’s statute of limitations had expired.

“This Court assumed that no other crimes were potentially applicable,” argued Senior Assistant Attorney General Trina K. Kissel.

In the new opinion, Grove conceded the witness “may have had other reasons” for invoking his Fifth Amendment right beyond a potential state criminal charge.

However, the panel reached the same conclusion that Rogers’ convictions must be reversed. If the witness was not available to testify, jurors should have heard his admission to the investigator that he drugged Rogers. Although out-of-court statements are typically not allowed, the rules permit such evidence when they are against the witness’ own interests.

“It seems highly unlikely that a reasonable person in (the witness’) position,” wrote Grove, “would provide false information implicating himself in prior criminality.”

Moreover, there was “substantial evidence” suggesting Rogers was drugged, including testimony that his behavior was consistent with LSD use.

The panel once again ordered a new trial.

The case is People v. Rogers.