Appeals court expresses ‘some concerns’ with Mesa County judge’s cookie analogy

By Michael Karlik and Colorado Politics 02/18/2025 | updated 8 months ago

Colorado second-highest court expressed “some concerns” last week about a Mesa County judge’s comparison of a defendant’s constitutional right to silence to a hypothetical child who has obviously eaten cookies but refuses to admit it.

However, a three-judge Court of Appeals panel agreed the illustration did not undermine the fairness of the trial because then-District Court Judge Richard T. Gurley also reminded jurors they could not hold the defendant’s silence against him.

Matthias Martin Brehm stood trial for attempted aggravated motor vehicle theft and jurors found him guilty. He did not testify.

During jury selection, Gurley emphasized Brehm had a “precious and absolute” constitutional right not to testify. Consequently, jurors “can’t use someone’s exercise of their constitutional right” as evidence of guilt.

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Gurley added it was “just human nature” to want to hear both sides of a story. He then asked jurors whether any of them had small children.

“Say it’s a holiday time and you’re going to bake some cookies for the holidays. And you tell your two kids, ‘I don’t want you to touch these cookies. They’re going to be for guests we’re going to have over. Don’t touch them,'” Gurley said.

“An hour later, you come downstairs and you see when one of your children looks perfectly normal. The other one has icing and all kinds of stuff around their mouth. You see broken cookies crumble everywhere,” he continued. “What do you do? You say, ‘Who did this?’ And your child who has no icing on their face says, ‘Not me.’ And the other one — you ask, ‘Did you do this?’ And what do they say to you? ‘Judge Gurley says I have the absolute right to remain silent. I’m not going to tell you’.”

He once again reminded jurors that “in our everyday lives” people hear both sides of the story. But in criminal cases, “you can’t hold it against someone who’s accused if they exercise that constitutional right to remain silent,” concluded Gurley, who has since been appointed as a federal magistrate judge.

Although the defense did not object to Gurley’s illustration in the moment, Brehm argued on appeal it was inappropriate to compare a person on trial to the child who refused to talk but who was obviously guilty.

“(I)n analogizing the two scenarios, the trial court effectively directly told the jury: ‘Yes Mr. Brehm committed a crime, and he is most definitely hiding his guilt by remaining silent, but you are not allowed to use that fact as evidence in this trial!'” wrote defense attorney Tillman Clark.

The Court of Appeals panel agreed Gurley’s cookie example “raises some concerns.”

“Most significantly, the only child to exercise their right to remain silent was the child who had apparently eaten the cookies, i.e., the guilty one. This risked the implication that only a guilty person will exercise the right,” wrote Judge Karl L. Schock in the Feb. 13 opinion.

“Moreover,” he continued, “although the court did not directly compare Brehm to the child with icing on their face, Brehm was the only one who was accused of a crime and whose right to remain silent was at issue, which could have led jurors to infer that there must also be evidence against Brehm.”

However, the panel determined there was not a serious risk that jurors applied the illustration to convict Brehm, as Gurley repeatedly reminded them they could not use Brehm’s silence as evidence.

The case is People v. Brehm.

Tags analogy constitution court of appeals judge karl schock judge richard gurley mesa county right to silence

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