COVID-19 and Speedy Trial Rights in Colorado

How is the COVID-19 pandemic affecting the scheduling of criminal cases in Colorado state courts? And perhaps most importantly, does a defendant’s right to a speedy trial provide any relief to defendants, any constraint upon the prosecution’s efforts to delay cases until a time when courts can accommodate juries more safely?

COVID-19 is presently killing hundreds of people per day in the United States, and extreme measures, from shelter in place orders to closures and modifications to core state services, like courts, are being used to slow the spread of the disease and save lives. The responses from individual state courts have varied widely, but generally they have tried to limit the number of in-person appearances that criminal defendants and lawyers must make. Some phone appearances are being permitted, but mostly courts have simply tried to continue criminal case hearings out until May or June, to buy time and see if it becomes safer to hold in-person court hearings. The rules of criminal procedure (rule 43) were even modified to adjust the normal requirement that all criminal court business be conducted in person. This is a dramatic change for the courts, lawyers, and parties. In-person appearances on certain types of cases, like victim-centered domestic violence cases, have been a firm requirement for years. So we will see how this evolves.

If you’re wondering what will happen to your particular case, call your lawyer. If you don’t have a lawyer, you should call the clerk of your particular courthouse to find out. Clerks are extremely helpful, but they may be overwhelmed with work right now, so be patient trying to reach them. For links to general information and some court announcements, see here: https://www.courts.state.co.us/

The biggest challenge to criminal case scheduling, though, is presented by cases that are set for jury trial. A jury trial requires not just the attorneys, judge, clerks, and the defendant to be present in the courtroom, but also witnesses and jurors. Even a misdemeanor case with only 6 jurors will begin with a group of 20 or so prospective jurors that will be reduced to 6 during jury selection. Conducting a jury trial right now, with all these people sharing a courtroom, presents an unacceptable risk of disease transmission. It is not enough to tell sick people to stay home, since the incubation period for COVID-19 is so long—many people will be asymptomatic but contagious.

Many in the system would like to simply push all the trials back in time, and hope that holding trials becomes safer in the summer. The Chief Justice of the Colorado Supreme Court issued a directive that said there would be no jury trials until at least May 15th, 2020, and it is possible this date will be extended further into the future. The problem is that the law, both the US Constitution and state law, guarantees defendants the right to a “speedy trial.” It is inappropriate to keep a person, presumed innocent by law, to be kept under the stress, stigma, and uncertainty of a criminal prosecution indefinitely. Speedy trial laws require dismissal of a case if it takes too long to prosecute. The 6th Amendment of the Bill of Rights established this as a constitutional right, but the constitutional right has always lacked specificity. For most situations, Colorado’s speedy trial law, C.R.S. 18-1-405, is more specific and protective of a state criminal defendant’s right to a speedy trial.

Colorado’s speedy trial law requires that the state put on its trial against a defendant within six months of the defendant pleading not guilty. There are ways that that six month timeline gets extended, primarily if the defendant waives his right to a speedy trial (typically if the defendant wants additional time to prepare his defense). But without a waiver of the right to a speedy trial, the state generally has to “put up or shut up” within six months of the not guilty plea.

So what happens if a trial was set in April 2020, near the end of that 6 month speedy trial window? Such a trial, it seems, can not be reset for June—it would violate the defendant’s right to a speedy trial. The answer isn’t clear. For now, the Chief Justice directive, the one that prohibited jury trials until May 15, contained an exception for trials that were nearing the end of speedy trial—it suggests those trials should go forward! But those defendants have been asked, by many courts and DA’s, to waive their right to a speedy trial for the health of the community. This is where it is important to remember the difference between a prosecutor and a defense attorney. A defense attorney is obligated by law and ethics to seek the best result for his client. It is foundational to our adversarial system. In contrast, it is the prosecutor, the District Attorney, who is supposed to consider (among other things) the public good in deciding what to prosecute, and how to do it. If holding a jury trial causes more harm, or risk of harm, than dismissing a case, then the public is better protected by dismissing a case. That is arguably the job of the prosecutor, then: to reset what cases it can for the summer, when perhaps (only perhaps—further evaluation will be necessary) things will be safer, to proceed to trial presently on the most urgent and serious cases, and to dismiss those cases up against speedy trial where convening people for a trial is more dangerous than not prosecuting the particular case at all. Outsiders may be surprised by this, but the number of cases that could be dismissed without any significant risk to the public is probably quite high.

But I am a criminal defense lawyer, and of course many prosecutors and judges feel differently. The DA’s, especially, do not want to dismiss a lot of cases. It’s just not what DA’s signed up for. Some judges agree with the DA’s. Some judges, in cases where the defendant would not waive their right to a speedy trial for a trial set in April or May, have continued the cases and “tolled” speedy. When a judge tolls speedy for a continuance, that period of delay is not counted against the six month window. Can a judge continue a case and toll speedy, over the objection of the defendant? Usually, no!
The District Attorneys and judges, though, are arguing that an exception to the speedy trial statute is in play. In fact, Phil Weiser, Colorado’s Attorney General, issued a press release on March 23rd arguing that the unique circumstances of the COVID-19 pandemic warrant the tolling of speedy trial under existing law. Mr. Weiser based his argument primarily on the statute’s provision that allows for tolling of the 6 month speedy trial window if the trial’s “…continuance is granted because of the unavailability of evidence material to the state’s case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date.” See C.R.S. 18-1-405(6)(g)(I).

That is a curious reading of the law, however. That provision plainly contemplates a different situation than we have here, a situation where the government has tried diligently to obtain the presence of a witness, or certain other documentary or physical evidence, but has been unsuccessful. The law also requires a showing that there is good reason to believe the government will have the evidence by the continued trial date. The focus on “evidence” in that provision is glaring and specific. COVID-19 does not, in its most literal sense, present a problem with “evidence.” Court closures due to juror safety concerns are plainly not matters of “evidence.” The state may argue that because of COVID-19 fears, certain witnesses are “unavailable” to testify. That’s creative, but it isn’t the most natural reading of the text of the law. And the government’s job has never been to creatively interpret criminal statutes to take away the people’s rights. In fact, there is a so-called Rule of Lenity, a principle of statutory interpretation which requires that ambiguous criminal statutes be interpreted in favor of the defendant.

Though this issue will surely be litigated aggressively wherever the state makes Mr. Weiser’s argument, the flaw in this argument is evident in his own press release. The press release concludes: “Over the longer term, I will recommend to the General Assembly that we clarify that public health emergencies should be recognized in the speedy trial law as a basis to stop the clock.” If DA’s and courts presently have the power, under existing law, to force continuances of trials and force the tolling of speedy trial, then why would the Attorney General be recommending that the state legislature amend or clarify any law? That closing suggestion makes clear that, at best, the law is ambiguous. Ambiguous provisions of law should not be read aggressively to take away an individual’s rights.

These are unique times, and we will see how this issue gets litigated over the coming months. If the state wins that argument based on Colorado’s speedy trial statute, there will still be the issue of whether constitutional speedy trial kicks in. Though normally less protective than Colorado’s statutory speedy trial, constitutional speedy trial protections may help a defendant whose case gets delayed repeatedly, with tolling of statutory speedy trial, over his objection. That is a topic for another post.

For trials that get moved to the summer months within their original six month windows, there is no speedy trial issue—at least not yet. We will see whether courts can safely accommodate jury trials even then. The pandemic may peak in April or May of 2020, but still present grave risks for several months, it’s too soon to tell. Even if the courts are handling jury trials in, say, June, they may find that the backlog of jury trials is simply too much to handle all at once. If that happens, DA’s and courts, with perhaps two or three trials for every available courtroom, may find themselves triaging cases and either dismissing or pleading out far more cases than they wanted to.