Colorado’s second-highest court ruled this month that a Weld County judge was wrong to deny bail to a murder defendant in the window between the state Supreme Court’s recognition of the right to bail and the voters’ subsequent overruling of that decision through a 2024 constitutional amendment.

Moises Rodriguez-Nunez stands accused of first-degree murder for the 2021 killing of Jacob Fooshee. A grand jury indicted him last June.

Whether Rodrigez-Nunez was eligible for pretrial release on bail was a product of three related developments:

• In 2020, the legislature abolished Colorado’s death penalty
• In 2023, the Supreme Court concluded that Colorado’s constitutional provision denying bail to those accused of “capital offenses” no longer applied due to the elimination of capital punishment
• In 2024, voters changed the state constitution through Amendment I to restore bail ineligibility for those charged with first-degree murder

The legislature, which referred Amendment I to the ballot, did not make the change retroactive. Therefore, defendants who allegedly committed murder between the abolition of the death penalty and voters’ passage of Amendment I were eligible for bail.

Following his indictment, Rodriguez-Nunez appeared before then-District Court Judge Marcelo Kopcow in July 2025. His defense attorney was not prepared to request a specific bond amount, so the attorney asked Kopcow to “set some bond” and entertain arguments later about a lower amount.

The prosecutor acknowledged that Rodriguez-Nunez was “entitled to a bond” and asked for $5 million in cash only. Kopcow preliminarily set that amount.

In September, District Court Judge Annette Kundelius heard the defense’s argument that Rodriguez-Nunez should be released on a personal recognizance bond. Attorney Daniel King pointed out that Rodriguez-Nunez’s case fell into the gap where first-degree murder defendants were eligible for bail.

“A $5 million cash bond — that’s virtually prohibitive of anyone being able to post a $5 million cash bond,” King said. “That is essentially the equivalent of holding the person without bond.”

He described the factors judges consider when setting bond and argued that Rodriguez-Nunez’s personal circumstances, community roots, and lack of flight weighed in favor of releasing him pretrial.

The prosecutor again acknowledged that Rodriguez-Nunez’s case fell into a “legislative loophole” and that Amendment I was not retroactive.

Still, “we know that the legislature intends for individuals in Mr. Rodriguez’s situation to not even be eligible for bond,” said Deputy District Attorney Ash McCuaig.

Kundelius declined to modify the $5 million bond, reasoning that if Rodriguez-Nunez committed the crime “at a slightly different time,” he would be ineligible for bail.

“I think it’s clear that that’s the legislative intent, and so I think that bond is appropriate as set. I understand it’s effectively a no-bond hold. I get that. And that’s going to be the decision of the court today,” she said.

A three-judge Court of Appeals panel agreed with the defense that Kundelius’ refusal to modify the bond was improper.

“First, the court erred by relying on the intent of the General Assembly — and ultimately the voters — to justify ‘effectively a no bond hold.’ This approach misapplied the law because the court based its decision on an intent that is contrary to the amendment’s plain language,” wrote Judge W. Eric Kuhn in the June 4 opinion. “The court erred by assuming that the intent of Amendment I was to prohibit bail for first degree murders committed before the amendment was effective.”

Because the amendment did not apply to defendants like Rodriguez-Nunez who fell into the window where they retained bail eligibility, “the district court erred by explicitly setting a cash bond whose amount was so high that it functioned as a bond denial,” Kuhn wrote.

He added that Kundelius’ bond decision also failed to analyze which type of bond would protect the community and reasonably ensure Rodriguez-Nunez would appear in court. Although defense counsel had argued that Rodriguez-Nunez had ties to the community, employment, a family, and other factors outlined in the bail law, Kundelius had considered none of those.

“Because the basis of the district court’s bond order is flawed and the record doesn’t disclose sufficient findings supporting the order, we must remand this matter for the court to hold a further hearing,” Kuhn concluded.

The panel otherwise rejected the argument that judges cannot set bond amounts that are financially unattainable. Kuhn wrote that judges may approve high-dollar bonds so long as they justify their decision as necessary to ensure community safety and the defendant’s appearance in court.

The case is People v. Rodriguez-Nunez.