Some criminal cases among backlog could be dropped due to Colorado’s speedy trial mandate

Colorado judicial districts got the green light to resume criminal jury trials this week after the coronavirus shut down much of in-person court operations in mid-March.

The nearly five-month delay has created a hefty backlog of criminal cases awaiting trial, which some worry could result in prosecutors dropping some because of Colorado’s speedy trial mandate. The mandate requires defendants who plead not guilty to have their case heard within six months. 

“I’m not a ‘sky falling’ type of guy, but in a few months I think we’re going to see cases that have been delayed that are going to likely face dismissal,” said Michael Dougherty, the district attorney for the state’s 20th Judicial District, which encompases Boulder County. 

“Because ultimately, when we’re dealing with the flood of cases in the backlog, time is going to run out on us,” he added. “… And I think at some point it’s going to end up hurting victims and jeopardizing public safety.”

Most jury trials in Colorado were first suspended March 16 by Colorado Supreme Court Chief Justice Nathan B. Coats. Since then, the order has been extended four times and expired on Monday. In July, a handful of judicial districts, including El Paso, Arapahoe and Douglas counties, were granted variances that allowed them to resume some jury trials before Aug. 3. But one of those districts has already had to shut down again due to the virus.

“We will use this experience to enhance our safety protocols so the community may safely continue to conduct business in El Paso County’s courthouse,” Chief Judge William Bain said in a press release on Monday, after court operations shut down because a court staff member tested positive for COVID-19.

Dougherty said that the El Paso County court’s recent shut-down highlights the reality that all courts are facing. 

“We have to recognize that we could put all the precautions in place, and there’s still the possibility of people getting sick,” said Dougherty, whose county held its first jury trial on Tuesday. “I’d like to believe that we’ve taken every step possible to eliminate that risk, but when it comes to the coronavirus, I don’t think anybody could say that they’re 100% foolproof.” 

Balancing speedy trial rights with public health concerns

Like many of Colorado’s jurisdictions, Boulder County’s judicial branch has been meticulously planning for the reopening of jury cases since the state shut down due to the coronavirus in mid-March. 

Dougherty’s biggest worry is that prosecutors across the state are going to struggle to meet defendants’ speedy trial requirements because of the steep backlog of cases. Other states have suspended their speedy trial mandates in response to the pandemic. But that hasn’t happened in Colorado. 

“The Legislature was encouraged to pick it up and did not do so,” Dougherty said, adding that there is disagreement over whether the governor has the authority to suspend the mandate. “… But either way as a state, we should have some process in place for the next time a crisis strikes so that speedy trials could be suspended.” 

At the end of May, the Colorado Supreme Court issued a rule that allows judges to grant a mistrial if they believe the pandemic makes it impossible to conduct a fair trial, said Dougherty. “But there’s a lot of uncertainty there and it does not address the overall backlogs,” he added.

Jon Sarche, a spokesman for the Colorado Judicial Department, said that it is difficult to quantify how long it will take to get through Colorado’s backlog of criminal cases, especially since new cases are still being filed every day. 

“There are just too many variables to get a real clear idea of how long it’s going to take to get through cases on the criminal docket statewide,” he said, adding that cases that require a speedy trial will be bumped to the top of the list. Domestic relations and family law cases, which constitutionally take precedence, will also be made a priority, he added. 

But ultimately, prosecutors decide how cases will be prioritized. 

Sarche stressed that while jury trials are required to take place in person, other court proceedings, such as motion hearings and case dispositions, have been taking place remotely. 

“The work has continued, it’s just slowed down,” Sarche said. “Our staff and the courts and the judges around the state, they’re doing what they can to clear it. But it’s going to affect court operations for some time. We just don’t know for how long.”

For Thomas Raynes, the executive director of the Colorado District Attorneys’ Council, one of the biggest challenges is the lack of consistency between the judicial districts.

“Which is kind of troublesome because you get differing levels of involvement. Some courts are working, some aren’t. Some are better at WebEx, some aren’t,” said Raynes, referring to the video application that courts are using for remote court proceedings. “And ultimately, everything is left up to the judges. So that’s some of the difficulty, the lack of continuity throughout the state by the judiciary.”

Alleviating the backlog in criminal cases

In an attempt to elevate the growing backlog of criminal cases, Dougherty said his office is working to resolve as many cases as possible before they even make it to trial. 

His office has been reaching out to defendants before their first appearance date to explain the process and talk about what they will be charged with. “Those conversations have been extremely productive. As a result, we’ve been able to resolve a lot more cases because we’re connecting with people earlier.” 

They have also been conducting over video calls other court proceedings that don’t require a jury. Dougherty said that since his district’s courts started conducting some proceedings via video, it has seen a decrease in the number of “no shows.” Typically, when a person misses a court appearance, a warrant is issued for their arrest.

Dougherty said the reason for the decrease is that video conferencing is less disruptive to people’s lives. “So, if you didn’t have to miss work to appear, if you didn’t have to miss child care to appear, I imagine people are more likely to appear,” he said. “I think those are some lessons we can take with us after the pandemic that may actually improve the rate of appearance.”

He said since the pandemic, Boulder County has reduced its jail population by over 50% in an attempt to limit the spread of the coronavirus within jail facilities. Throughout Colorado, the jail population has decreased by over 30% on average, Dougherty added. 

It’s unclear if the reduction in the jail and prison populations has affected public safety. But Dougherty said his office is evaluating that. “And if the answer is no, then there are definitely some positive lessons to be taken from that going forward in terms of how we can reduce the jail population, engage in more bond reform, while also maintaining a high level of community safety,” he said.

For Tristan Gorman, a legislative policy coordinator for the Colorado Criminal Defense Bar, a backlog of criminal cases brings up two major issues of concern.

“One, the fact that our clients are being held in custody, in jails and prisons, during the global pandemic, which makes their chances of contracting coronavirus shoot through the roof,” Gorman said. “The other prong, of course, is what’s going on with the courts, where it’s not really safe to do in-person court appearances, in-person evidentiary hearings, or in-person jury trials.”

She said that ultimately prosecutors have the power to prioritize which cases move forward.

“So they have a lot of latitude to dismiss cases in the interest of justice, to offer more favorable plea bargains, to agree to personal recognizance bonds so that defendants can get out of jail and aren’t trapped inside with COVID,” Gorman said.

She said that her organization supports any efforts being made to increase the safety of jury cases but that health concerns need to be balanced with the defendant’s right to a speedy trial. 

Gorman is also concerned with how to ensure that juror pools are selected fairly. “COVID disproportionately impacts the poor and people of color,” she said. “And so those are the folks who are more likely to not be able to show up on a jury summons.”

Answers just aren’t there

Emily Tofte Nestaval, executive director of the nonprofit Rocky Mountain Victim Law Center, described the number of criminal cases in the backlog as a “tidal wave” barreling towards Colorado’s criminal justice system.

Defendants’ right to a speedy trial has been a large topic of conversation since March. But another aspect that is often overlooked, according to Tofte Nestaval, is how delay and uncertainty around criminal jury trials affects crime victims. 

“The majority of victims that we work with, what we typically hear is, ‘We’re used to delays, but we’d like to know something that’s predictable. Will this get set, when it’s going to get set, how it will move forward?’” Tofte Nestaval said. “And unfortunately, those answers just aren’t there.”

She said she’s unsure how the long-term impacts will play out as a result of the backlog of criminal cases. “But I don’t think it’s a very rosy picture at this point,” Tofte Nestaval said. “The system, to my knowledge, has never had to stop the way it has with this pandemic. This is new uncharted territory for our state.”