BRECKENRIDGE — The pandemic has continued to impact local courts over recent months as judges, attorneys and others adjust to the ever-changing criminal justice landscape in the face of COVID-19.
The Summit County Justice Center has kept its doors open since the arrival of the novel coronavirus in early March, but the pandemic has stressed court systems around the state dealing with trial backlogs and staffing shortages. For local officials, there’s been a concerted effort to keep the dockets lean and to prepare for the eventual opening of the floodgates.
“We have a long backlog of trials, and we started to whittle away at that during a brief six-week period where we could do them,” Fifth Judicial District Attorney Bruce Brown said. “For now, our courts in the Fifth are doing a good job, and managing some of these cases through virtual appearances has been a game changer for us. It’s enabled people to answer to the requirements of the court and at the same time stay healthy. … But at some point, we’re going to have to pay the piper and have people coming in for jury calls on a frequent basis.”
In April, Colorado Supreme Court Chief Justice Nathan Coats issued an order suspending all jury trials throughout the state. Courts in the Fifth Judicial District — Summit, Lake, Eagle and Clear Creek counties — launched back into trials as soon as the order expired Aug. 2. But the return to action was short lived.
Earlier this month, Fifth Judicial District Chief Judge Mark Thompson issued another moratorium, pushing all jury trials until at least Jan. 19.
With the absence of jury trials, Thompson said court officials have been able to prioritize things like civil disputes, child welfare cases and other hearings to move through the process virtually. But criminal cases have presented officials with considerable challenges.
There are about 35 cases awaiting jury trials throughout the district, about three times as many as officials would typically see on the docket at any given time. Brown noted that his office has had to change policies to help get cases adjudicated before trial to keep from overwhelming the courts.
“We’re trying to avoid a backlog accumulating that we cannot get out of,” Brown said. “It’s a situation where realistically some moderately serious cases, where in the past we might have insisted on a term of imprisonment, probation has been on the table. We try not to sacrifice public safety, so that isn’t happening on any serious cases. But on moderate cases it has and will continue to.”
Officials around the district already are planning for the reintegration of jury trials into their schedules in late January, but questions remain about what will happen if the pandemic hasn’t improved or if the state returns to a stay-at-home order. Any further delays could create substantive negative impacts for individuals waiting for their day in court, in particular for individuals currently incarcerated.
Virtual jury trials remain a possibility, albeit an imperfect one. Thompson, who sits on a pair of judicial technology and virtual proceedings committees for the state, said nobody in Colorado has attempted a virtual jury trial. Civil cases have worked well over the court’s streaming system, but jury trials create additional obstacles like ensuring a panel of jurors that’s reflective of the community despite existing technology gaps in the area.
Thompson said before any online jury trials move forward, officials also would have to work out solutions to a number of in-court problems, like making sure there’s an accurate record and that evidence can be entered virtually and efficiently.
While not necessarily a legal issue, Thompson said that taking away the in-person element of jury trials also could fundamentally change the proceedings from an emotional perspective, which often plays a role in how judges hand down sentences and how attorneys approach addressing jurors or witnesses.
“If you’re a lawyer, you’re looking at that panel of folks and gauging the impact of your statements and questions on people’s facial expressions and body language,” Thompson said. “Interviewing people on camera doesn’t convey as much information. … Can you adequately cross-examine a witness who has a mask on? Would it matter from a legal perspective if the victim in a case were testifying in person close to the defendant versus by video? Is that meaningful? Those are questions that don’t necessarily have clear answers in the law, and there are practical limitations to some of these things.”
Thompson said he and other judicial workers around the state are still exploring the use of a virtual jury concept to see if it’s feasible sometime down the line.
As officials prepare for the return of jury trials, there also are concerns about how the district’s court staff will be able to handle the increased load. Budget cuts have created staffing shortages statewide, including in Summit County, where Thompson said one individual has been laid off and two vacant positions have been eliminated.
The cuts will help the court to maintain its essential services, but it also will likely mean longer wait times for some cases to be resolved or for some phone calls to be returned.
“It’s been a combination of creative solutions to try and preserve positions that are absolutely critical to maintain our operations,” Thompson said. “We looked carefully at positions we could eliminate or leave unfilled, knowing it’s going to push work to other people and create its own set of problems. It’s put a lot of pressure on our staff, but you’ve got to figure out a way to tighten your belt. I think we’ve done a good job of that.”