COVID-19 shutdown creating constitutional dilemma in Colorado courts
DILLON — Should a defendant have a right to a speedy trial, even if it could endanger members of the public?
The new coronavirus shutdown has impacted almost every corner of society, and the criminal justice system is no different.
The area’s courts and elected officials have had to make numerous changes to keep things from grinding to a halt, and to help protect employees and members of the public from the illness.
Fifth Judicial District Attorney Bruce Brown said COVID-19 presents entirely new challenges, which could pit constitutional rights against public health interests.
“There’s a chance that we’re going to have to make some really hard decisions,” Brown said. “The Constitution wasn’t written with the idea that courts would be trying to do business in an epidemic. That’s why so many of a person’s constitutional rights involve things like confrontation, the ability to look somebody in the eye, and speedy trial, the ability to do things quickly and not have inordinate delays.
“Those constitutional rights are being tested by a virus that’s requiring people to physically space and to let business that isn’t an immediate public health issue be deferred.”
Earlier this month, Brown wrote a letter to Gov. Jared Polis asking him to exercise his authority to temporarily suspend defendants’ right to a speedy trial, which in Colorado means six months. That means that if a defendant insists on trial, members of the community could see jury duty notices start to pop up in their mailboxes despite the public health closures.
For those who’ve never attended a jury selection, the scene often involves a jam-packed parking lot, crowded hallways and sitting shoulder-to-shoulder with dozens of strangers on the courtroom pews. And once a jury is selected, the situation doesn’t get much better in regard to mitigating person-to-person exposure, requiring gathering in the jury box and in the jury room for hours on end.
There were about 25 trials scheduled in the Fifth Judicial District alone this month. Most of those already have been postponed, but Brown said cases could be kicked down the road only so far.
“As we get into May and June, we’re going to be in a situation that the law doesn’t really have any ready answer for,” Brown said. “We’ve been able to collaborate and continue cases, but at some point, we won’t be able to anymore. And we’ll either have to jeopardize our jury panel’s health or dismiss cases for defendants whose right to a jury trial can’t be afforded.”
Brown’s response will be to ask the district and county judges to declare that the circumstances are extraordinary and continue cases despite a defendant’s objections, essentially temporarily infringing their right to a speedy trial.
But it might be unlikely a judge would make that call. The district’s Chief Judge Mark Thompson said the issue has been on his mind, as well, along with other judges around the state. Most have since adopted policies piggybacking on a mandate put out by Colorado Supreme Court Chief Justice Nathan Coats, which calls for cases with imminent speedy trial deadlines to move forward.
“It’s becoming increasingly difficult to navigate,” Thompson said. “It’s hard to reconcile the public health orders and the tension we have with a statutory tight to a speedy trial. At some point, we’re going to have to face the issue. … But there isn’t anything in the statutes right now that allows us to continue trials for a public health emergency. It simply doesn’t exist in the statutory framework.
“It’s a dilemma. But I can’t see any chief judge at this point say we’re not going to have criminal trials. I haven’t seen a compelling argument that would force that yet. But it’s possible.”
Thompson said the COVID-19 virus pandemic and subsequent public health guidelines would create a number of other issues once jury trials start back up, noting that prosecutors might have a difficult time compelling witnesses to attend, and that the orders would make it difficult for defendants and others to make it to hearings.
Thompson continued to say that judges were looking to the state Legislature to provide guidance on the issue. But until that happens, the local justice system is bracing itself for what comes next. The best-case scenario is that courts are left with an overabundance of work over the next six months.
“We’re going to be taking at least a month and a half of trials and other hearings, and cramming them into the second half of the year,” Thompson said. “It’s going to create some problems. But we’ll figure out how to get it done.”
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