A man convicted of murdering his estranged and pregnant wife and inflicting damage on her fetus will have a new trial after the Colorado Supreme Court on Monday decided 4-3 that excluding the defendant’s parents from the courtroom violated the Sixth Amendment, and that the state legislature did not appear to criminalize child abuse of a fetus.

“After using various tools of statutory construction and failing to ascertain the General Assembly’s intent,” wrote Justice William W. Hood III for the court’s majority, “the term ‘person,’ as used in the child abuse statute, does not include an unborn fetus.”

In September 2013, Andre Demetrius Willi Jones broke into the Colorado Springs apartment of his estranged wife, Lakeisha Jones. He shot her in the abdomen through the door when she returned home. Lakeisha Jones, 30 weeks pregnant, died from her injuries. But doctors delivered the baby, who survived with severe neurological defects.

Andre Jones received a life sentence for the crime, including on charges of murder, unlawful termination of a pregnancy and child abuse resulting in serious bodily injury. He appealed, citing a violation of his Sixth Amendment right to a public trial.

The claim stemmed from the trial court judge’s decision to exclude Jones’s mother and stepfather from the courtroom while Jones’s two children testified. The prosecution reported that days before the testimony, the mother “started bawling uncontrollably and said, ‘I’m sorry you are going to have a tough week,’” to son A.J. Based on A.J.’s negative reaction, the prosecutor asked the court to remove the grandparents, saying that they “put the children on edge.”

The 1984 U.S. Supreme Court case of Waller v. Georgia established that keeping courtrooms open to the public encourages witnesses to come forward and discourages perjury. The court cited permissible uses of a courtroom closure, such as for protecting sensitive information that the government discloses during trial. 

A partial closure occurs when only certain people are excluded from a trial. Some courts have viewed this as a lesser threat to Sixth Amendment rights because there are still some representatives of the public inside the room who can serve as watchdogs on the process.

Hood, in his opinion, observed that Jones’s trial court judge gave no explanation for the partial closure. Further, the Supreme Court saw no logic to excluding Jones’s stepfather and the second child, let alone a compelling reason like removal of a disruptive spectator or a potential for witness intimidation.

Consequently, the court’s majority found the partial courtroom closure unwarranted, and that its effect was not trivial. “[N]umerous courts have concluded,” wrote Hood, “that the presence of a defendant’s family at trial reminds the trial participants of their duty to treat the defendant fairly.”

Excluding Jones’s parents, the majority decided, amounted to a nonpublic trial that violated the Constitution. In part because the trial judge had since died and could provide no further insight into the closure, the Supreme Court ordered a new trial for Jones.

In deciding whether Jones could have committed child abuse in the shooting, the court’s majority found that the relevant statute did not define what a “person” is, nor was the legislature’s intent toward fetuses readily apparent. Hood declined to adopt the “born alive” doctrine that permits certain criminal charges against those who injure a fetus that then survives birth.

While not commenting on the multiple failed ballot initiatives in Colorado that have attempted to give personhood status to fetuses, the court’s majority said that the definition of a person for child abuse purposes is best left to the General Assembly.

“[W]e are particularly concerned that adopting the ‘born alive’ doctrine to define a criminal element would usurp the role of the legislature,” Hood wrote. “Therefore, we decline the temptation to make law, no matter how sympathetic the alleged victim.”

Justice Brian D. Boatright, in dissenting for himself and for Chief Justice Nathan B. Coats and Justice Justice Carlos A. Samour Jr., disagreed with both conclusions of the majority. Writing about the partial closure, Boatright asserted that “when people are excluded from the courtroom for their conduct, as was the case here, that exclusion is not a closure that implicates the Sixth Amendment.”

Referring to the emotional distress that the mother caused A.J., Boatright contended that “trial judges should not have to wait for a spectator to actually interfere, disrupt the proceedings, or influence a witness in his or her presence before they decide to exclude a spectator if the court already has good cause to believe the spectator has violated an order or admonishment.”

Although there was no record of a court order telling the parents to avoid speaking to the children about the case, the dissent deemed the exclusion well-founded. The only problem was a lack of documentation from the deceased judge justifying the decision. Even so, the partial closure was trivial, the justices felt, and there was no record that the mother was even present on the day of the exclusion.

The dissenting justices also advocated for adopting the common law “born alive” doctrine precisely because the legislature had not specifically written a statute to the contrary. Boatright referenced a 2009 decision of the Colorado Court of Appeals that determined a fetus injured in the womb but who is born alive and dies of injuries is a “person.” The fact that the decision stood until now, he contended, was proof that the law effectively treats fetuses as people.

“[I]f the General Assembly had disapproved,” he countered, “then it would have amended the statute.”

Per the majority’s opinion, Jones cannot be tried again for child abuse in his new trial. The case is The People of the State of Colorado v. Andre Demetrius Willi Jones.