The Colorado Attorney General’s Office received a rebuke from the state’s second-highest court on Thursday after it asked a panel of appellate judges to reverse course on a recent decision with an argument it never raised previously.

Under the state’s appellate rules, a party may submit a petition for rehearing to the Court of Appeals in response to an opinion, outlining “points of law or fact the petitioner believes the court has overlooked or misapprehended.” Occasionally, the court will modify and re-issue a decision based on the petition.

On Aug. 8, a three-judge appellate panel re-issued an opinion from a criminal appeal it decided in June that ordered a new trial for the defendant. The only change was the addition of a footnote telling the attorney general’s office, in essence, its request for reconsideration was not well-taken.

“In their petition for rehearing, the (government’s attorneys) take an entirely different tack,” wrote Judge Anthony J. Navarro, explaining the office had pivoted to a fresh argument far too late in the process for the panel to consider it.

“It is so rare to see that, I do not recall it ever happening,” said defense attorney Elizabeth A. McClintock. “It seems to be signaling a bit of displeasure that might not be limited to just one case.”

The appellate panel’s disapproval comes months after Justice Richard L. Gabriel, during oral arguments in the state Supreme Court, told another member of the attorney general’s office he was getting frustrated with how quickly the prosecution on appeal accuses defendants of raising improper arguments — even as the attorney general’s office sometimes does the same thing.

In the underlying Court of Appeals case, the panel overturned the attempted sex assault conviction of Angel Adrian Castro-Velasquez on June 20. The judges concluded a pair of Boulder detectives used a narrow order they obtained to collect Castro’s DNA and photograph him as a license to interrogate him without probable cause.

The government submitted a petition for rehearing with a brand-new argument: probable cause was unnecessary because the detectives’ questioning was the type of detention that only required reasonable suspicion of a crime. The appellate panel was unmoved.

The attorney general’s office “said nary a word about an investigatory stop or reasonable suspicion in their answer brief,” Navarro wrote. “Because we do not address arguments raised for the first time in a petition for rehearing, we will not address the (government’s) new assertion.”

Todd Narum, the attorney for Castro, said he has previously seen the court criticize attempts to surface new issues on appeal, but never with a petition for rehearing. He indicated he did not know what the appellate panel intended by re-releasing the opinion with a statement rebuffing the move.

The panel already indicated its skepticism of the government’s position earlier in the appeal. During oral arguments, Navarro laughed in response to a contention from Assistant Attorney General Fellow Tara A. Leesar that Castro could have simply closed the door on the detectives to avoid talking with them. Navarro subsequently apologized for his reaction.

The case is People v. Castro-Velasquez.