Colorado’s second-highest court reversed an Eagle County man’s convictions earlier this month because a trial judge permitted a pair of prosecutors — including one who is now running for district attorney — to misstate the law on self-defense to jurors.

A jury acquitted Robert Fergus-Jean of more serious offenses like assault and attempted murder, but convicted him of the prohibited use of a weapon, illegal discharge of a firearm and criminal mischief. The alleged crimes occurred in December 2020, when Fergus-Jean got into an argument with his roommate, Stephen Darley, that culminated in both men brandishing guns and Fergus-Jean shooting through Darley’s bedroom door.

During closing arguments, the prosecution contended Fergus-Jean could not be acting in self-defense because he had options to remove himself from the encounter prior to using deadly force. However, a three-judge panel for the Court of Appeals agreed with the defense that Colorado law unambiguously imposes no duty to retreat, and the trial judge should not have permitted prosecutors to say otherwise.

“While the prosecutor did not use the phrase ‘failure to retreat,’ the prosecutor’s argument that Fergus-Jean failed to leave the apartment, hide in his room, call the police, or scream for help suggested that Fergus-Jean failed to retreat or had a duty to retreat,” wrote Judge Pax L. Moultrie in the March 7 opinion. “We hold that there is a reasonable probability that the trial court’s error contributed to Fergus-Jean’s conviction.”

Under Colorado law, a person is justified in using physical force to defend himself when he perceives another person is about to use force against him. In 2020, the state Supreme Court reiterated the law does not require a person to retreat before resorting to force. Therefore, unless a defendant started the confrontation, prosecutors may not argue the defendant acted unreasonably by failing to withdraw.

“The only inferences a jury could draw from that line of argument are that, if retreat was possible but not pursued, a defendant must not have acted reasonably by using force,” explained Justice William W. Hood III.

Fergus-Jean and Darley disputed the details leading up to the moment Fergus-Jean fired six shots into Darley’s bedroom door. However, both men consumed alcohol or other drugs the night of the shooting, got into an argument in their apartment and Darley was the first to draw his gun. The parties agreed Fergus-Jean appeared shocked in response.

Fergus-Jean then ducked into his own adjacent bedroom, retrieved his gun and fired toward Darley’s bedroom. Two bullets hit Darley, but he was not seriously injured. There were no further hostilities before police arrived.

Prosecutors charged Fergus-Jean with 12 offenses, most of which were for the shooting itself. The prosecution conceded Fergus-Jean was not the initial aggressor in the encounter, and Fergus-Jean invoked self-defense. At his March 2022 trial, the jury was instructed that prosecutors had to disprove at least one component of Fergus-Jean’s self-defense claim to convict him of certain shooting-related charges.

During closing arguments, prosecutor Amy Padden, in addressing the self-defense claim, contended Fergus-Jean “could have left. He could have called 911.”

The defense objected to her argument as improper, but Chief Judge Paul R. Dunkelman overruled it. Padden and fellow prosecutor Johnny Lombardi proceeded to repeatedly suggest Fergus-Jean acted unreasonably by resorting to force:

• “He could have called 911. He could have stayed in his room with a gun and called 911 from there. He could have screamed for help”

• “Wake up your neighbor. You leave the apartment. You go somewhere where there is a phone. That’s the choice”

• “A reasonable man would have walked out of that apartment without getting his gun and opening fire”

On appeal, the government insisted the commentary did not warrant a new trial for Fergus-Jean, even though Padden and Lombardi may have violated the rule the Supreme Court established two years earlier.

“Some of the prosecutors’ arguments below were problematic at best,” said Assistant Solicitor General Brittany Limes Zehner during oral arguments last month. But “the comments were not so flagrantly, tremendously, or glaringly improper that they warrant reversal.”

“At what point does an argument about reasonableness cross a line into a prohibited argument about a duty to retreat?” responded Moultrie.

Ultimately, the panel decided the prosecutors had, in fact, made a prohibited argument.

“Furthermore, when Fergus-Jean objected, the trial court did not correct the prosecutor’s misstatement of the law,” Moultrie wrote. “Rather, the trial court’s ruling reinforced the prosecutor’s argument that Fergus-Jean’s failure to take an action other than arming himself was unreasonable, and therefore contrary to an element essential to establishing self-defense.”

The panel ordered a new trial only for those convictions that relied on Fergus-Jean’s self-defense argument.

Padden is currently a Democratic candidate to be district attorney in the 18th Judicial District, which will consist solely of Arapahoe County beginning next year. She did not immediately respond to an email asking about the appellate panel’s decision.

The case is People v. Fergus-Jean.