As courts face unprecedented trial backlog, Colorado lawmakers debate bill to help

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Posted at 9:25 PM, Jun 04, 2021
and last updated 2021-06-04 23:25:22-04

DENVER — Over the past year, the COVID-19 pandemic has caused a serious delay in the court system. As the world waited for a vaccine, jury trials were put on pause and thousands of defendants and victims were forced to wait to have their day in court.

During the start of the legislative session, Chief Justice Brian Boatright delivered his state of the judiciary speech, outlining the backlog in cases across the state and asking the legislature for help.

According to Boatright, more than 14,000 jury trials were awaiting their court date as of January. In a normal year, there are only 2,716 jury trials held.

“It is overwhelming, and we’ve had the judicial branch of our government come to the legislature here and ask for some relief, and they don’t normally do that. They try to stay impartial and out of politics. So, this is very rare of them to do, which makes me think there’s a serious problem,” said Rep. Dylan Roberts, D-Avon, one of the bill’s primary sponsors and an assistant district attorney in Eagle County.

In an effort to help, the Colorado Supreme Court ruled that a mistrial can be declared if the court room does not have the capacity to safely hold a trial or if a jury pool cannot be compiled due to the pandemic.

High-profile cases, like that of Mark Redwine, have been declared a mistrial using this court decision, leaving families waiting for a new court date and for the process to start over again.

Other trials have slowly begun to move forward after months worth of delays, like the trial of the teen accused of killing Kendrick Castillo in the STEM Highlands Ranch school shooting.

Now, Colorado lawmakers are considering a bill that would take some of the pressure associated with speedy trials off the court system to allow for some delays.

House Bill 1309 would allow for a delay to the speedy trial process of up to three months for someone who is in pre-trial detention and up to six months for someone who is out on bond.

“Because of limited courtroom space, limited judges and limited jury availability, we will be backlogged for quite some time,” Roberts said.

A defendant’s right to a speedy trial is in the U.S. Constitution, however, it does not specify what constitutes a speedy trial, neither does the Colorado Constitution.

Instead, Colorado statute specifies that a speedy trial means six months. The law would only be applicable for the next year and would extend that deadline.

In order for the continuance to happen, the judge would need to find good cause for it and make known on the record that there is no courtroom available for the trial, no jury pool available and that a different judge cannot be used for the case.

If that continuance is granted, a second portion of the bill would require another bond hearing for the defendant with the presumption of release.

“We don’t want to have people sitting in jail longer than they need to. We don’t want to have victims of justice waiting for longer than they need to, but because of this historic pandemic, we do need to release some of the pressure on the time clock a little bit,” Roberts said.

The case for the bill

For district attorneys, like Beth McCann, this past year has been difficult.

“People just have so many trials set that it’s difficult to devote the attention to each one that we would like. I think we’re doing as best we can,” McCann said.

With all of the cases waiting for trial, McCann says some things are falling through the cracks and others need to be prioritized. It’s also been a challenge for the crime lab to have enough time to get all of the evidence evaluated and ready for each case.

“We want to make sure that these people who are waiting for their trials can get their trials heard, but we also want to make sure we have the resources to conduct the trials,” McCann said.

In order to help cut down on the backlog, Roberts and McCann say defendants are being offered plea deals that are lighter than would be given under normal circumstances in order to get cases out of the system.

“Yes, we have been offering some dispositions of cases that we wouldn’t normally offer because we just have to deal with the crushing workload,” McCann said.

Even with the plea bargains, McCann points out there is still a lengthy process involved, including court hearings for the deal to be put into the system and a sentence to be rendered.

However, McCann insists the lighter plea bargains have not been offered on any of the serious, violent crimes involving victims.

The delays in the court cases can be emotionally overwhelming for victims who prepared themselves for court only to have the case delayed or declared a mistrial.

“To hear that it’s going to be delayed is devastating, but to hear that it might get dismissed altogether because of a right afforded to the defendant that isn’t exactly afforded to the survivor is even worse,” said Emily Tofte Nestaval, the executive director of the nonprofit Rocky Mountain Victim Law Center.

Tofte Nestaval worries that these delays have lead to an increased feeling of helplessness and a distrust in the criminal justice system among victims.

The lighter plea bargains can be even more devastating for victims to come to terms with.

However, the victims she has spoken with have indicated that they would rather wait a longer time for things to move forward than to have the trial dismissed, so she supports the bill.

Roberts worries that without the bill, defendants who now receive a mistrial and then are tried again and found guilty could appeal their cases and win.

“We’re trying to avoid is a bunch of jury decisions being overturned on a technicality,” he said.

The case against the bill

The bill has bipartisan support but has also received bipartisan pushback from some lawmakers, including Rep. Adrienne Benavidez, D-Commerce City.

“These are people who have not been convicted, are presumed innocent and then we have people who can’t pay the bond, and they’re sitting and languishing in our jails,” she said.

Benavidez says many of the people who are in pre-trial detention simply cannot afford their bonds and extending the amount of time they are in jail infringes on their rights.

Tristan Gorman, the policy director for the Colorado Criminal Defense Bar, says having defendants in jail, particularly poor defendants, for months on end can cost people their jobs and more.

“You’re very likely to lose public benefits, housing, transportation, access to healthcare, custody of your children... I mean the list goes on and on. There are so many collateral consequences,” Gorman said.

Gorman disagrees with the notion that there is a large backlog of jury cases, pointing out that in most cases, trials are set but that 90% resolve without a trial. She argues that the number of cases set for trial is not indicative of how many will actually end up in trial.

She worries the bill would double or triple the wait times for trials, leaving those in custody at a higher risk to being exposed to COVID in a congregate environment.

“No one should have their individual rights subject to government administrative issues like backlog,” she said.

Another argument Gorman makes against the bill is that for misdemeanor crimes, it’s possible for a person to spend longer in jail waiting for trial than any potential jail sentence they would face if convicted.

“If you’re found not guilty by a jury or a DA dismisses your case, there’s absolutely no provision in the law for you to get anything out of it. You don’t get that time back,” Gorman said. “You don’t even get an apology on the way out, even though it may have completely decimated your life and the lives of your family.”

Benavidez at least wants the defendants to have a voice in the continuance process if the bill passes. Even with the extra bond hearing, she isn’t sure defendants would be able to afford the new bail set since they have been in pre-trial detention and their financial situation likely hasn’t improved.

Benavidez says the courts have already found a way to address the backlog without legislative intervention and there are things like mediation, further negotiations, dismissal with the right to bring the case up again and plea bargains to help bring down the backlog instead of a bill.

“There is nothing stopping the court from making an additional rule. The difference is having the legislature make a law it provides them differences because this is a constitutional issue, and it will be challenged,” she said.

HB 1309 passed the House in a 51-11 vote Friday with three people excused. Benavidez voted against the bill, along with four other Democrats. The bill now moves to the Senate for debate.