Reasonable doubt is not “something you do every single day,” and faulty comparisons, plus a trial judge’s insufficient reactions to them, resulted in the Ninth Circuit’s reversal of a drug conviction and a new trial for the defendant.

The Ninth Circuit defines reasonable doubt as, “Proof … that leaves you firmly convinced that the defendant is guilty.” The prosecutor tried to compare this standard of proof to believing a meal will not make you sick or driving to court without anticipating an accident. Both are possibilities, but neither is a proper comparison to the legal definition. Instead, the court found them “highly inappropriate and misleading.”

The case began when defendant Alfred Velazquez was arrested at the U.S. Mexican border by Customs and Border Protection. His car, which he said belonged to his cousin, was searched and 2,000 grams of a fentanyl and heroin mixture were found in the engine. The estimated value of the drugs was “almost $150,000.” The defendant was indicted for importing fentanyl and heroin.

At trial, Velazquez took the stand and testified he was unaware that his car carried drugs--what the court called the “blind mule” defense. The reason for the vacated conviction came during closing argument, when the prosecutor compared reasonable doubt about the truth of Velasquez’s testimony to the normal amount of doubt people have when doing ordinary things.

In a 2-1 decision, Circuit Judge Richard A. Paez explained that the prosecutor erred when he compared the reasonable doubt standard to mundane activities. “Velazquez claims that this improper argument, and the district court’s failure to cure it, caused him prejudice. We agree,” Paez wrote in an opinion joined by District Court Judge Eric F Malgren of the District of Kansas, sitting by designation.

At the trial, two government witnesses from border patrol testified about how the drugs were found. Velasquez then provided several scenarios about how the drugs could have gotten into his car without his knowledge. Prior to closing arguments, district court Judge Cynthia A. Bashant of the Southern District of California, instructed the jury on reasonable doubt.

She told them, “It is not required that the government prove guilt beyond all possible doubt. A reasonable doubt is a doubt based on reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence or from a lack of evidence. If after a careful and impartial consideration of all the evidence you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty.”

The prosecution’s closing argument, which is the reason for the conviction reversal, followed. Assistant U.S. Attorney Christopher Michael Alexander of the Southern District of California, said, “Reasonable doubt is something that you make decisions about every single day.” Defense counsel, Brian J. White, objected.

Bashant did not sustain or overrule the objection. Instead, she instructed the jury to follow her previous instruction on reasonable doubt and not apply “what any attorney says the standard of reasonable doubt is.”

One retired judge, who reviewed the Velazquez case for this article, explained that during his judicial training, he was cautioned to avoid giving or permitting examples of reasonable doubt. He was taught to limit jury instruction to the words of the accepted legal definition. Bashant followed this advice.

Alexander ignored Bashant’s advice as he continued his closing argument and his rebuttal to the defense case. He gave more examples of “something you do every single day…” Defense counsel again objected, arguing that the prosecutor’s examples, “diminishes the burden of proof.”

This time, Bashant overruled the objection and did not admonish the jury a second time. They returned a guilty verdict and Velazquez was sentenced to 151 months in prison. He appealed, arguing “the prosecutor trivialized the standard during closing argument and substantially prejudiced him.” Paez agreed, then went on to explain the legal basis for reversal.

He began by providing a long list of precedents that establish “misstatements of law during closing argument provide grounds for reversal.” He explained that the “prosecutor, as a representative of the government, wields considerable influence over a jury,” and thus “could easily mislead the average juror.” He concluded that “The prosecutor’s comments here regarding the government’s burden of proof diverged significantly from what we require in a criminal trial.”

Paez went on to further reprimand the prosecutor. “People do not, “every single day,” bear the solemn task of examining evidence and determining an accused’s guilt. The comparison—to reflexive, quotidian decisions like “getting up,” “having a meal,” and “travel[ing] to . . . court”—is flagrant and seriously distorts the standard. The government’s analogies reflect an effort—even if unintentional—to “reduce [its] burden of proof.”

The defense repeatedly argued that Judge Bashant’s “curative statements,” her single reading of the law along with her single admonishment to the jury, were sufficient to instruct the jury about the proper reasonable doubt standard. But Paez did not agree. He concluded that here, “the court failed to neutralize the prejudice.”

The opinion concluded that the “ultimate issued boiled down to whether the government proved that Velazquez knew about the drugs in his car beyond a reasonable doubt.” He said that the U.S. Attorney’s comments “created an unacceptable risk that an honest, fair-minded juror would succumb to the prosecutor’s personal—rather than constitutional— view of the government’s burden of proof… Because the evidence demonstrating Velazquez’s knowledge was not overwhelming, and the district court failed to neutralize the prejudice, we conclude “that it is more probable than not that the misconduct materially affected the verdict.””

Circuit Judge Bridget S. Bade dissented. She wrote that the prosecutors’ comments, when taken in the context of the entire proceeding, did not “so infect the trial with unfairness” in a way that affected the defendant’s due process rights. She concluded that a thorough review of Bashant’s responses to objections, plus her repeated admonishments to the jurors, establish the impropriety of a reversal.

Velasquez will get a new trial and another chance to explain his innocence.