One-hundred-sixty-four. That’s how many jury trials were scheduled for between June and September, throughout the 7th Judicial District, as of the beginning of May.
Those trials are on hold, because Colorado Supreme Court Chief Justice Nathan Coates determined jury pools cannot be assembled in a manner consistent with state public health guidelines issued to slow the spread of COVID-19. Among other provisions, these orders limit gatherings to no more than 10 people.
Coates, on May 5, issued an order delaying all jury trials in the state until July 6. Although the order opens a door for waivers, seeking one for the geographically expansive 7th Judicial District would be difficult — there is no alternate site large enough in any of its six counties for jury selection with proper social distancing, and the counties have different local orders in effect. The trials set for the coming months are being delayed, adding to the backlog the courts must grapple with as their dockets continue to grow.
“A wave, getting bigger,” District Attorney Dan Hotsenpiller said of the situation. “The more we delay, the bigger the wave. And the wave is going to have to be dealt with in a very concentrated time.”
There was already a backlog going into the pandemic.
“That’s the problem. It is a real challenge to figure out how we are going to safely conduct jury trials in the current environment,” he said.
“Jury trials present significant challenges because of the need to bring a large group of people together in one place, from all across an individual county. That obviously presents risks for infection and causing individuals real problems.”
Realities and rights
The 7th Judicial District is composed of Montrose, Delta, Hinsdale, Gunnison, San Miguel and Ouray counties. Because of prior state orders, the court buildings have been closed to foot traffic and, when possible, hearings and other court business have been conducted by phone or through remote technology.
These are easier to manage, because the number of people who need to be present or participate is a known factor, which can be controlled.
“But jury trials present a different level of challenges,” said Hotsenpiller, who has been working with the Public Defender’s Office and Chief District Judge J. Steven Patrick to determine safe procedures.
“Not only that, but we owe it to folks to communicate to them ahead of time what is being done to try to make it safe,” the DA said.
For a trial to be safely conducted, the district would have to be able to separate when and where jury selection is conducted from conducting the trial itself, and in venues where social distancing can be practiced.
“The chief justice (Coates) is trying to weigh constitutional rights and public health,” Patrick said May 7.
“It’s not easy. (Of) public health orders in our district, none allow an event of more than 10 people. If we had a crystal ball, it would be easy to figure out when we could be back up.”
At least two counties in the 7th Judicial District, San Miguel and Gunnison, have in place orders that are more restrictive than the state’s. Montrose and Delta counties are intending to apply for variances to the state’s orders.
Patrick said Coates is also concerned about another delicate balance: uniformity of proceedings and local control. He said it would be difficult to balance the needs and issues of 22 judicial districts and still come up with a uniform, statewide system for conducting jury trials during the pandemic.
Two districts in the state are reportedly seeking waivers from Coates, which Hotsenpiller said the 7th is monitoring.
“Right now, I can’t imagine anyone receiving a jury summons (here),” Patrick said. “We have a large number of folks who are over 60 and more vulnerable. We have a number of folks who, as soon as things start to open up, are told you can go back to work, but now — you‘ve just been invited to jury duty.”
The pandemic doesn’t merely create issues with selecting juries. Defendants’ constitutional rights include a speedy trial and the right to confront accusers.
“It’s an important constitutional right,” Hotsenpiller said. The one thing people may not know is speedy trial in our Constitution is not a number; there is no period set forth in our Constitution. It’s a principle and it’s an important interest and right to have a trial as soon as reasonably practicable.”
Statute typically gives a timeline of six months, unless waived, and offers rules for what happens if the trials cannot. The statute of limitations for each type of charged offense is also a factor.
Across the state, judges have been declaring mistrials because it has not been possible to call jurors, Hotsenpiller said.
“And it’s not (possible). The (Colorado) Supreme Court says we can’t, as well as health reasons,” he said.
Once a court has declared a mistrial, though, the case can only be continued for 90 days. What happens after that, if people still cannot be called for jury selection?
Hotsenpiller said, simply: “We don’t know.”
With jury trials for now off the table, prosecutors have less leverage in resolving cases through plea agreements, which typically occurs in the vast majority of cases. “It has been our experience that we’re not reaching as many plea deals and that is consistent across the state,” Hotsenpiller said.
Legislative fixes are being discussed for the issue of jury trials, but the Legislature is not in session, Patrick said. The Supreme Court has revised rules to address public health crises that complicate speedy trial and other considerations, but when a jury cannot be called because of a health crisis, that is grounds for a mistrial.
“Once we start back up. There will be a series of jury trials everywhere in the state. We’re no different than any other place on those issues. There’s a lot of judges losing sleep at night trying to figure out what they’re going to do,” Patrick said.
Even once courtrooms are again open, there are only so many in the district — not enough, he said, even if the courts could shift into an all-trial by jury mode for a period to play catch-up.
“There’s a domino effect,” Patrick said — and there’s also the possibility of a second wave of the virus, another unknown.
Hotsenpiller said the state must determine a way to hold jury trials in consideration of restrictions.
“The coronavirus and COVID-19 are not going away. We have to recognize that we have to do things in a new way to keep people as safe as we reasonably can,” he said.
“ … Until we try it, we won’t figure out how to do it. We’ve got to move forward.”