Scales of justice and Gavel on wooden table and Lawyer or Judge working with agreement in Courtroom, Justice and Law concept

After the state Supreme Court decided 4-3 in May that a lower court judge did not infringe upon a defendant’s constitutional rights by temporarily excluding the public from his courtroom, the Colorado Court of Appeals ordered a new trial last week on grounds that excluding the defendant and his lawyer was in fact a violation.

“Because we cannot know what effect defendant’s absence and that of his counsel had on the jury, the People carry a heavy burden,” wrote Judge David J. Richman for the three-member appeals panel.

Abel Lujan admitted to beating and strangling Bernadine “Bernie” Frost to death in 1999. In 2013, prosecutors charged him with first degree murder, but he argued that he committed the less serious offense of reckless manslaughter. A jury convicted him of second degree murder.

As part of the trial in Boulder County District Court, Lujan’s ex-wife and ex-girlfriend testified about his violence toward them. Judge Andrew R. Macdonald gave an instruction to the jury that the women’s remarks should only be considered for illustrating Lujan’s motive or mental state.

On the second day of the jury’s deliberations, Macdonald received a note asking him to write down the limiting instruction for jurors. There was disagreement between the defense and the prosecution about what language to use and how to administer it. Ultimately, Macdonald brought the jury, a bailiff and the court reporter back to re-read the instruction. The judge closed the courtroom to everyone else, including the parties to the case.

The Colorado constitution gives defendants the right to “appear and defend in person and by counsel,” and the Sixth Amendment guarantees the ability to confront witnesses. More broadly, Colorado recognizes that a criminal defendant has the right to be present at all phases of his prosecution. The appeals panel had to determine whether the jury’s re-instruction during deliberation was a critical stage of the trial.

The judges decided in the affirmative.

“One reason that these communications constitute a critical stage is that when a criminal defendant is absent from oral communications between the court and jury during deliberations, the defendant is ‘deprived of the “psychological function” of his [or her] presence on the jury during a crucial phase of [a] trial’,” Richman wrote. He added in an unpublished, non-precedent-setting opinion that jurors might also invent their own theories about why the defendant is absent.

The appellate panel cited precedent for the conduct of communications between judges and jurors. In the 1986 case of Leonardo v. People, a majority of Colorado’s Supreme Court ordered a new trial when a judge neglected to secure the presence of the defendant and his attorney before answering a question from the jury. 

Richman, in the Lujan case, observed that jurors’ pursuit of guidance from Macdonald indicated that they were undecided about Lujan’s culpability. Therefore, there was a reason to have him present for the jury. The fact that no one was permitted to observe the jury during the courtroom closure cast further doubt on the harmlessness of Lujan’s exclusion.

“A member of the jury might have appeared to be confused or inattentive. A juror might have raised his or her hand. The court’s tone might have indicated disdain for Lujan or his counsel,” Richman hypothesized. “It is also significant that, although the trial court agreed to explain the defendant’s absence to the jury, it did not do so.”

The appeals court also included in its reasoning for a reversed conviction the fact that a detective had testified at trial that Lujan did not seem upset or remorseful over the victim’s death. In fact, Macdonald excluded testimony from a different detective — on the basis that it was hearsay — that Lujan had been upset and “crying.” The appellate judges said the lower court’s exclusion left the original assertion about Lujan’s mental state uncontested.

"Following the most recent appellate ruling, we will work with the Attorney General and again assess our options," said Shannon Carbone, a spokesperson for the Boulder County District Attorney's Office. "Either way, we are committed to making sure the defendant remains held responsible." 

Emails sent to Boulder County District Court staff seeking comment from Macdonald were not immediately returned.

Colleen Kelley, a criminal defense attorney and partner at Wolf Law, LLC, said that the concept of defendants' "psychological influence" on a jury is a recognition that jurors might make detrimental inferences about why the defendant is not present during some parts of a trial.

"The problem really is that a jury is there to judge the defendant. They are judging everything from their clothing, haircut, posture, demeanor, facial expression and hand gesture. Every blink of the defendant's eye is there, on display, to be judged," Kelley said. "When the defendant is suddenly absent, these 'judges' of behavior are free to wildly speculate about the most sinister explanation for the defendant's absence."

She added, "My understanding from any studies is that we believe we are good at judging character and/or truthfulness when in fact we are notoriously bad at it."

Earlier this year, a majority of state Supreme Court justices found that Macdonald’s courtroom closure to observers did not violate the Sixth Amendment’s guarantee of a public trial. Justice Brian D. Boatright wrote for the majority that the closure was trivial, and was without “any additional conversation, instruction, or clarification given by the judge.”

Justice Monica M. Márquez, writing for the three dissenting justices, believed the action “undermined the interests served by a public trial.” The high court sent the case back to the Court of Appeals to resolve Lujan’s remaining contentions.

The case is People v. Lujan.

This article has been updated.

(1) comment


MacDonald is very arrogant to have pulled this in an effort to cover up his first mistake and save the trial.

Welcome to the discussion.

Keep it Clean. Please avoid obscene, vulgar, lewd, racist or sexually-oriented language.
Don't Threaten. Threats of harming another person will not be tolerated.
Be Truthful. Don't knowingly lie about anyone or anything.
Be Nice. No racism, sexism or any sort of -ism that is degrading to another person.
Be Proactive. Use the 'Report' link on each comment to let us know of abusive posts.
Share with Us. We'd love to hear eyewitness accounts, the history behind an article.