Halfway through a three-week murder trial in Adams County, jurors arrived in the courtroom to hear that someone there had tested positive for the novel coronavirus.
“The court became aware that an individual who has been in the courtroom, but who has typically been seated back behind the bar, did have a positive test,” Judge Mark Warner told the jury earlier this month.
But, he continued, since everyone in the courtroom had been following public health guidelines — including wearing masks, sanitizing exhibits and keeping six feet of space between people — the trial could continue. The likelihood that anyone else was exposed was low, he said.
It was one of several brushes the Colorado’s court system has had with the highly contagious virus as the courts continue to function despite the pandemic. Staff members, prosecutors and attorneys have contracted the virus, at times forcing courts to shut down or limit operations. Judges have declared mistrials because of the pandemic, and other trials and proceedings have been delayed when attorneys got sick or needed to quarantine.
Despite those scattered incidents, the courts in Colorado have not seen any large-scale COVID-19 outbreaks and have been able to keep operating, albeit with a variety of cumbersome safety protocols and at a slower-than-usual pace. But the ongoing threat from the virus, coupled with the unprecedented backlog created when nearly all jury trials in the state were stopped for more than four months earlier this year, means the courts are still facing an uphill battle.
The months-long stoppage of jury trials this summer created an immediate backlog of cases ready and waiting to be tried. Most jurisdictions are now holding limited jury trials at a reduced pace; the trials require more resources than normal because of the social distancing and other health precautions that must be taken.
With new cases created every day, that backlog will grow as time goes on, said Michael Dougherty, Boulder County district attorney.
“It is going to be an extremely significant problem,” he said.
There are concerns about defendants’ right to speedy trial, victims receiving timely justice, and whether courts will have the manpower and resources to catch up on jury trials as cases go forward in the coming months, or if the delays will ripple through the system for years.
In Boulder County, the scheduled jury trials are piling up for the spring of 2021, Dougherty said. This week, his office is handling three trials, which about what a normal week looked like before the pandemic — but during the pandemic, three trials stretches resources thin, he said.
“I’m literally telling our deputy district attorney, ‘We’ll try it in the courtyard, in the parking lot, we’re ready, the victim is ready, the speedy trial time cannot be charged to the DA’s office,’” he said. “And the court is saying, ‘We can’t try this case because of capacity.’”
In the 18th Judicial District, scheduled murder trials are stacked up beginning next year, District Attorney George Brauchler said, and it’s already looking like it will strain the system.
“We don’t have the resources to do four or five murders every single week in the Arapahoe County courthouse,” he said. “We can’t do it. There are not enough jurors, there is not enough staff, and what do you do with the rest of the cases that should be progressing through the courts when they’re not in trial? I do think it will be a huge issue.”
The Colorado Supreme Court gave prosecutors some breathing room on speedy trial requirements in June, when the justices ruled that trials could be delayed for six months due to the pandemic without violating defendants’ right to speedy trials. But Dougherty called that decision a “temporary fix.”
Still, most criminal cases don’t go to trial — most end in plea agreements — and one way for prosecutors to reduce the trial backlog is to settle more cases.
In federal court, the U.S. District of Colorado held only 18 jury trials by mid-October this year — and 13 of those trials happened at the start of the year, before the pandemic, said Jeff Colwell, clerk of court.
“We are about 30 trials behind,” he said. “There are hundreds of cases pending trial, but the reality is they don’t all go to trial. Everything else is still moving. There are still hearings going on, the large bulk of them by video. Cases are still moving along.”
Defense attorneys say prosecutors seem more willing to offer plea agreements to defendants — or are offering more favorable agreements — as the courts deal with the growing backlog.
“I have noticed, with certain offices and certain deputy district attorneys, they’re looking at their caseload going, ‘I’ve got to figure out what to prioritize,’ and they’re extending offers, potential plea bargains with stipulated sentences that they wouldn’t otherwise consider,” said Josh Landy, a defense attorney and treasurer of the Colorado Criminal Defense Bar.
For Brauchler, being forced to offer less severe plea agreements solely because of the backlog caused by COVID-19 is untenable.
“Think about the injustice that is,” he said. “If a person commits a crime in April of 2019, they get treated one way, but if they committed it in April 2020, they get a better deal. How is that justice? The only people that will lose as a result of this backlog will be victims, and the district attorney’s office.”
For Landy, it’s been fascinating to watch the courts so quickly change the way cases are handled since the pandemic started. Aside from the shift in plea bargains and a move to virtual proceedings, judges are making an effort to avoid sending people to jail, offering more personal recognizance bonds and shifting sentences to probation more often.
“Perhaps the district attorney is doling out justice in a way that is different from what they would have otherwise done, but it may not necessarily be less justice, or worse result,” Landy said. “It may actually be a better way of running a court system, because the reality is we over-incarcerate so many people in this country. … Perhaps our idea of what is justice and what is fair for these people has shifted for the better.”
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