The Ralph L. Carr Colorado Judicial Center, on Tuesday, Sept. 13, 2022, in Denver, Colo. (Timothy Hurst/The Denver Gazette)

Once again, Colorado's second-highest court on Thursday reversed a criminal conviction from Adams County because the trial judge explained the concept of reasonable doubt to jurors using an analogy that lowered the prosecution's burden of proof.

The Court of Appeals has repeatedly overturned the convictions of defendants since the Colorado Supreme Court decided last year that some judges' well-meaning attempts to explain reasonable doubt in plain English actually lowered the threshold for a guilty verdict. For years, the appellate court warned judges away from trying to illustrate reasonable doubt with everyday concepts, but some — primarily in Adams County — continued to do so.

The Supreme Court's 2022 decision in Tibbels v. People, which was the first time the justices reversed a conviction due to a reasonable doubt analogy, also arose from Adams County.

In Tibbels, a trial judge had compared reasonable doubt to the crack in the foundation of a "dream" home, suggesting a homebuyer would hesitate to purchase the house once they discovered the defect. The Supreme Court instead found the illustration made it seem as if the defendant was presumed guilty unless a significant "crack" appeared in the prosecution's case to cause an acquittal, among other problems with the analogy.

In the most recent analogy-related case, Marvin Teron Mitchell stood trial in 2019 for multiple child sex offenses, where jurors convicted him as charged. He received a prison sentence of 16 years to life. However, then-District Court Judge Tomee Crespin used an analogy virtually identical to the problematic "dream home" illustration in Tibbels.

"That’s reasonable doubt. We use it every day, we just don’t call it that," she told jurors after establishing they would hesitate to buy the defective house.

Although the prosecution attempted to persuade the Court of Appeals that Crespin's analogy was not the same as the faulty illustration in Tibbels, the three-judge panel reviewing the case rejected that argument.

"The court therefore not only undermined the legal definition of reasonable doubt, but it essentially supplied its own definition of reasonable doubt and equated it to everyday decisions," wrote Judge Stephanie Dunn in the Feb. 2 opinion.

Dunn added that the similarity of the two illustrations "is perhaps not surprising as they both arose from trials in the same judicial district."

At the time of Mitchell's trial, the definition of reasonable doubt was complex: It was doubt, based upon reason and common sense, and which was not vague or speculative, that would "cause reasonable people to hesitate to act in matters of importance to themselves."

However, last week, the all-judges committee responsible for revising template jury instructions suddenly announced a reworded definition, catching the legal community off guard. Now, the instruction advises that jurors must be "firmly convinced" of a defendant's guilt, with no "real possibility" they are innocent.

Defense lawyers have condemned the departure from the historical instruction, while prosecutors are open to the simplified version.

Although the appellate panel ordered a new trial for Mitchell based on the faulty illustration, it also found the warrant that police relied upon to search Mitchell's electronic devices was unconstitutionally broad.

The warrant authorized police to search for "all electronically stored data." The Fourth Amendment, which prohibits unreasonable searches and seizures, requires warrants to describe "particularly" the place to be searched and the things to be seized.

The Colorado Attorney General's Office defended the warrant, saying an accompanying police affidavit explained in more detail the type of sexually-exploitative material officers were searching for. But the appellate panel saw no evidence that the affidavit was present when police actually looked through Mitchell's phone.

"The breadth of the warrant — unchecked by any limitation — authorized nothing less than an unfettered 'general search of (Mitchell’s) phone'," wrote Dunn. "Such a general warrant is overbroad and unconstitutional."

She added that, if prosecutors decide to try Mitchell again, a judge may hear additional arguments or evidence about why incriminating materials located on the phone should be admissible at trial after all.

The case is People v. Mitchell.

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