During court shutdowns, prosecutors say they have to find ways to keep some criminal matters moving forward

The statewide order in Colorado suspending most court operations for several weeks has created logistical snafus. Some judicial districts are trying to hold proceedings that are still going forward by phone or video. Once court operations return to normal, prosecutors and judges will have trial backlogs to manage.

Chief Justice Nathan Coats issued an emergency order March 15 limiting court operations to emergency matters, including criminal trials coming up on constitutional deadlines. The order originally applied through April 3. Four days later Coats extended the suspension of jury trials through at least May 16. For matters that are still going ahead during limited court functioning, a handful of judicial districts, including the 5th, 9th and 16th, have specifically called for court proceedings to be conducted by phone or video when possible.

Although the hangups seem largely administrative in nature, the need to mitigate the novel coronavirus’ spread while keeping courts functioning in some capacity has some implications for resource differences between judicial districts that have different amounts of manpower and varying capabilities to conduct proceedings remotely.

Colorado has amended Rule 43, which governs the presence of defendants, in the state’s criminal procedure rules. It allows defendants to appear by audio or video in proceedings such as plea entries, sentencing and probation violation hearings during public health crises.

Christian Champagne, 6th Judicial District Attorney, whose jurisdiction covers Archuleta, San Juan and La Plata counties, said his district can use video from jail for defendants’ initial court appearances, and victims sometimes listen into court proceedings by phone. But under typical circumstances, defendants have the right to confront their accusers in court at trial.

“Generally, the defendants themselves have a pretty strong preference to appear in person in court, and, almost always, the courts honor that,” Champagne said. “It’s pretty rare that the prosecution is able to use audio and video testimony.”

James Bullock, 16th Judicial District Attorney, who has rural Bent, Crowley and Otero counties in his jurisdiction, said new court challenges caused by the coronavirus in his district aren’t about technology capabilities. The 16th District courts have setups to do proceedings by video, and they also allow some matters over the phone if necessary, such as for parties who live hours away from the court their appearance is set in. His district doesn’t need to reinvent the technology wheel to keep vital court functions going during this period of hamstrung operations.

“Some of the issues that we are facing are how to deal with people who need to be in the courtroom,” Bullock said. He said it’s difficult to remotely conduct what he calls “critical event” hearings, such as sentencing and preliminary hearings with testimony.

“For the court to hear that evidence, it’s very difficult to hear over the telephone,” he said.

A few prosecutors said they believe the upset in court functioning presents a chance for courts to evaluate whether expanding the types of proceedings done remotely makes sense to allow permanently. Dan Hotsenpiller, the DA in the 7th District, which includes a mix of rural and frontier counties, said he has thought about the possibility of increasing efficiency with remote proceedings during his more than two decades as a prosecutor.

The 7th District includes Gunnison, Delta, Montrose, San Miguel, Ouray and Hinsdale counties. Hotsenpiller said in the early days of his career as a prosecutor, he frequently traveled to the associate courthouse in Nucla, a small town in Montrose County near the Utah border.

He said even in the early 1990s, he thought, “Wouldn’t it make sense if people could appear in any county courthouse anywhere in the state of Colorado for most of their criminal proceedings?” he said. I think we should rethink entirely how are we functioning … and be willing to discard the way we’ve been doing things just because we’ve been doing them. Technology, to me, is one of the ways that we can change the quickest [and] the most.”

George Brauchler, the 18th Judicial District Attorney, said expanding the use of remote proceedings could make sense for criminal matters that are judge-driven and don’t require testimony or a jury, such as bail hearings and arraignments. He added the work-from-home mandates in place are a chance to evaluate whether working from home makes operations more efficient and raises morale among administrative staff.

“We should be having those conversations,” Brauchler said. “If … we have reverted back to where we were before this virus in terms of how we do business, we have missed an opportunity.”

MANAGING INEVITABLE BACKLOGS

The chief justice’s emergency order suspending jury trials makes an exception for those facing imminent speedy trial deadlines.

In Colorado, criminal defendants have the right to go to trial within 180 days of pleading not guilty to their charges. Prosecutors Law Week spoke to said their chief judges haven’t issued specific guidelines about how to interpret what constitutes an “imminent” speedy trial deadline but rather have been negotiating the circumstances of individual cases with defendants and defense attorneys.

And on March 23, Attorney General Phil Weiser asked courts to extend speedy trial deadlines. A news release also says he plans to ask the legislature to clarify public health emergencies should constitute an exception to speedy trial deadlines.

Suspending trials will create inevitable workload bottlenecks once the state’s court operations return to normal, likely by this summer, and prosecutors say they know it’s not reasonable to wait until then to figure out how to manage backlogs.

Caseload mitigation could involve negotiations with defendants to waive their speedy trial rights or come to plea agreements.

“I’m not going to have additional resources in June and July,” Hotsenpiller said. “We’ve got to think about, how we keep moving forward. Not just stop everything and deal with it in June and July.”

He said pushing for plea agreements out of necessity can mean tough compromises for prosecutors. Defendants have the right to reject plea offers, and prosecutors also may feel strongly about the public interest of taking certain cases to trial.

“Fundamentally, our job is to resolve cases as best as we can given all of the circumstances,” Hotsenpiller said. “Circumstances change, and we need to keep our eyes on the long-term goal of an effective resolution.”

As an example of a case where the prosecution was limited by a difficult practical reality, Hotsenpiller talked about a case he had involving a sex offense against an underage victim in which the victim was committed to a mental health facility in another state and couldn’t testify, which hamstrung the prosecution’s ability to prove its case.

Brauchler said his district has gotten the necessary consent to suspend all criminal trials for now.

Champagne said the limitations on Colorado’s court system caused by the coronavirus crisis have brought the need to use finite prosecution resources smartly into stark relief and has forced a “redefine” of what is an imminent risk to public safety.

“It really has sharpened our focus as to what is critically important for public safety right now that we deal with to ensure justice is done, and then what are the cases that we can look at a little bit differently and move them out of the court system if at all possible?”

Written by Julia Cardi
Law Week Colorado | March 30, 2020
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