10-12-21 Colorado Congressional Redistricting Commission Supreme Court Oral Arguments 2

Mark P. Gaber, an attorney working with Campaign Legal Center and the League of United Latin American Citizens, argues to the Colorado Supreme Court that the state's minority voters will have their influence in elections diluted because of the congressional redistricting commission's adopted map, and that it must be returned to the commission for changes. (Photo by Evan Wyloge/The Colorado Springs Gazette)

Trial court judges sometimes attempt to illustrate the legal concept of reasonable doubt to potential jurors. They use analogies to everyday experiences, thinking those will clear things up.

But now the Colorado Supreme Court is being asked to ban the practice.

On Wednesday, the justices heard oral arguments in a pair of appeals involving two Adams County judges who each went far beyond the technical definition of reasonable doubt when attempting to explain the principle. The defendants claim that doing so can actually lower the burden of proof for prosecutors and misstate what reasonable doubt means.

For years, the Court of Appeals, the state's second-highest court, has repeatedly warned trial judges against using analogies. But a handful of them have blown past such admonitions, prompting one Supreme Court justice to wonder if it is time to enforce that message at the highest level.

"It seems like the only way to get the attention of the trial courts is to reverse one of these, right?" Justice William W. Hood III asked. "We typically say it but do we really mean it?"

The first case during oral arguments involved Ernest Joseph Tibbels' conviction for possession of contraband. Tibbels had called 9-1-1 in the middle of a mental health crisis, but police arrested him by mistake, believing he violated a protection order. At the jail, he threatened to kill himself and others. Although Tibbels complied with commands, deputies recovered a three-inch metal spike he had brought into the facility.

At jury selection for Tibbels' trial, District Court Judge Robert W. Kiesnowski, Jr. read the definition of reasonable doubt to incoming jurors: a doubt based on reason and common sense that "would cause reasonable people to hesitate to act in matters of importance to themselves."

"Now, you’re all sitting there saying what the hell does that mean," Kiesnowski said. He proceeded to give an example of a family buying their dream home, but discovering a floor-to-ceiling crack in the foundation.

"And it’s not that superficial cracking that concrete will do. And structurally it’s significant. Are you going to buy that house?" the judge asked.

No, a juror responded.

"Okay. You’ve got a reason," Kiesnowski said. "And that’s causing you to hesitate, causing you to pause with going forward with a home purchase. This is my example of reasonable doubt."

On appeal, Tibbels argued the judge lowered the prosecution's burden of proof by trivializing the standard of beyond a reasonable doubt — analogizing a home purchase to a decision to deprive a criminal defendant of his liberty. By a 2-1 decision, a Court of Appeals panel upheld Tibbels' conviction.

Judge Neeti Vasant Pawar dissented, believing jurors would have treated Kiesnowski's analogy like any formal instruction he later gave them, and logically would have gravitated to his easy-to-understand example of reasonable doubt in lieu of the abstract, legal definition.

As part of its decision, the Court of Appeals identified 23 other cases since 2001 where defendants had challenged judges' use of reasonable doubt illustrations. The majority came from Adams County. Those decisions frequently admonished judges not to use analogies, for risk of getting a conviction reversed on appeal.

"I think there may be things that judges can say that aren’t as risky as analogies and comparisons, but they’re very dangerous," said Meredith K. Rose, the public defender representing Tibbels, to the Supreme Court. "I would draw a bright-line rule that analogies are not appropriate because they don’t sum up the important job the jury has to do and risk lowering the burden of proof."

Many of the justices recognized two related problems: the legal definition of reasonable doubt is confusing, and Kiesnowski's analogy was problematic.

"Do we need a different definition?" wondered Justice Carlos A. Samour, Jr., who was a trial judge prior to joining the Court. "I know when I read that definition, jurors used to look at me like, 'What? What does that mean?'...It’s not an easy definition to understand."

Justice Maria E. Berkenkotter, another former trial judge, described how a judge's comments inherently carry weight with jurors, even if the judge is intending to be conversational. 

"Everyone stands when the judge comes in. The judge is wearing a robe. Somebody tells you when the judge sits down you may be seated. There’s a lot of gravitas," she said. "If I’m on that jury, how am I supposed to know when to listen and follow, and when I don’t have to? How am I supposed to know the difference between the definition and the definition of the definition — and know I don’t have to follow the definition of the definition?"

Assistant Attorney General Jacob R. Lofgren advised against a "hypersensitive reading" of Kiesnowski's comments, given that the judge repeatedly read the legal definition of reasonable doubt. His explanation earned pushback from some of the justices.

"I’m sensing from your argument that the gist of it is, 'Don’t worry. The jury didn’t follow that improper instruction'," said Justice Monica M. Márquez.

"Put yourself in the position of a juror," added Justice Richard L. Gabriel. "Isn’t it reasonably likely that jurors are going to listen to what the judge said, particularly when the judge undermines the stock instruction?"

Judges' inclination to use a reasonable doubt illustration is by no means limited to Colorado. Appellate courts across the country have similarly thrown up red flags to their trial judges. In one case where a judge deployed an escalating series of analogies to clarify reasonable doubt, the opinion from a California Court of Appeal quoted from The Beatles in saying: "Let It Be."

Although Colorado's Supreme Court resolved another reasonable doubt case in 2019, the justices at the time concluded that particular judge's explanation of reasonable doubt — "[Y]ou just can’t bring yourself to do it. You just have to hesitate. It’s not there" — was "nonsensical" and did not lower the burden of proof.

In Tibbels' case, by contrast, the cracked foundation analogy was clear and recognizable. Justice Melissa Hart observed that in Kiesnowski's example, the default assumption was that the house was perfect, until shown otherwise. But in criminal proceedings, it is not the defendant's obligation to disprove his guilt. 

"I just wonder whether part of the problem is when we start talking about these analogies to daily life, we all come with different ideas" about where to draw the line of doubt, she added. Tibbels' attorney agreed, noting that Kiesnowski had primed the jury to believe reasonable doubt has to be "really big."

"It’s gotta be ‘huge crack doubt’," Berkenkotter replied.

In the second case, William Scott Pettigrew appealed his conviction for pandering of a child after text messages and sexually-explicit photographs suggested he encouraged a 17-year-old girl to become a prostitute. In Pettigrew's trial, District Court Judge Francis C. Wasserman, also in Adams County, used an analogy to a juror's birthday in explaining reasonable doubt, and told jurors there was a difference between "innocent" and "not guilty."

The justices heard additional arguments about the constitutionality of the search of Pettigrew's phone. A police supervisor was concerned that Pettigrew's initial arrest was unlawful, but officers retained Pettigrew's phone when they released him. He was re-arrested the following day, and police obtained a search warrant for his phone.

The Court of Appeals found the search to be constitutional, but Pettigrew claimed the police's decision to seek a warrant was influenced by information they learned from his unlawful arrest.

The cases are Tibbels v. People and Pettigrew v. People.

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