Courts Left in Limbo During COVID-19 Pandemic
Most jury trials are postponed and some courts have chosen to close to the public

by Julia Cardi

The novel coronavirus has now reached Colorado’s courts, suspending some functions and leaving uncertainty about how resulting caseload backlogs will be managed once operations return to normal. Chief Justice Nathan Coats on March 16 issued an order limiting jury trials statewide until at least April 3, and on March 20 he extended the order through May 15

The order includes postponing jury trials that hadn’t started at the time of the order, except for criminal trials “facing imminent speedy trial deadlines.” For civil trials already underway, judges and parties in each case may decide to postpone them or keep them going, according to an email from a spokesperson for the judicial branch.

According to the order, state courts will continue operations for matters considered emergencies, such as petitions for extreme risk protection orders and shelter hearings in dependency and neglect proceedings.

Chief judges in some judicial districts have put out orders extending trial postponements past April 3, including the 1st and 20th judicial districts. Some districts are choosing to also mostly close their courthouses to the public.

The court closures and postponements implicate constitutional rights of criminal defendants to have a speedy and public trial. In Colorado, a criminal defendant has the right to go to trial within six months of pleading not guilty. There are exceptions for circumstances such as mental health evaluations and changes of venue.

There are also considerations of rights to access courthouses and judicial proceedings. Chris Jackson, a member at Sherman & Howard, said even civil disputes carry a presumption that the court system is available to resolve them through. Jackson said he’s not aware of any centralized set of rules that governs how courts should handle emergency situations like the coronavirus pandemic that pit public health and safety against rights related to the court system.

“A lot of this is a patchwork of trying to pull together, how do the courts comprehensively address this, given all the different little things going on?” Jackson said. “There’s a bedrock principle of democratic government that courts are open to the public; that they can resolve issues in a fair, unbiased and public manner.”

Federal courts in Colorado have also suspended much of their functioning for the next few weeks. The U.S. District Court for the District of Colorado has suspended scheduled jury selections and trials through April 3. The Byron White U.S. Courthouse, which houses the 10th Circuit Court of Appeals, announced March 17 it is closed to the general public until further notice. The court has suspended requirements to submit paper copies of briefs, appendices, and petitions for rehearing.

Jackson said federal law allows an exception in criminal speedy trial rights for a finding by a judge that delaying a trial serves the interest of justice, and federal courts are invoking that exception in their decisions to postpone trials.

But he said Colorado doesn’t have an analogous law with a catch-all grant of discretion to judges to delay criminal trials if they believe it’s in the interest of justice. In 2018, a Colorado House committee killed a bill that would have expanded circumstances that are exempt from the state’s speedy trial statute to include trial continuances granted by judges if they are deemed necessary to protect defendants’ constitutional rights.

“I think Colorado is going to have a bigger problem moving forward if this thing goes on longer, because there are just going to be more and more cases that have to go to trial, or the person gets acquitted and can never be retried.” Jackson added he expects to see negotiating between prosecutors, judges and private lawyers to work within emergency rules set out and constitutional requirements to make substantial compliance work.

It’s not yet clear what steps judges and prosecutors may take to manage trial backlogs once court operations return to normal. Prosecutors contacted by Law Week did not comment specifically on whether they might use plea agreements or ask for expedited trial timeframes as tools to mitigate docket loads. Instead, a few offered statements on taking steps to reduce jail populations during the coronavirus pandemic, such as pretrial release of defendants on personal recognizance bonds and early release for some inmates.

Shannon Carbone, a spokesperson for 20th Judicial District Attorney Michael Dougherty, said in an email the office is specifically reviewing lists of inmates for possible early release who have pre-existing compromises to their immune systems or who have less than 45 days remaining on their sentences. The court has also approved a list of offenses for pretrial release on personal recognizance bonds.

“With law enforcement issuing more summonses, jail bookings have already declined a lot,” she wrote.

ON THE CIVIL SIDE

Constitional criminal speedy trial rights in state and federal law may mean civil trials take a backseat once court operations return to normal. Wheeler Trigg O’Donnell chair Mike O’Donnell said in a given civil case, judges have a lot of discretion to set rules for how the trial will run. They can limit the amount of time each side has to present their cases, for example.

“I’ve tried cases in other states where they put you on a clock,” he said, referring to decisions to give the parties each a set number of hours to put on their cases. “And anytime you’re on your feet, in direct or cross-examination, or opening or closing, that goes against your time. That would, I think, be one way to unclog.”

O’Donnell added he expects to see a slowdown in new case filings in the near future as courts try to catch up with caseloads. He said in a few of his out-of-state cases, judges have already planned for doing proceedings like depositions and mediations remotely.

Even though parties in civil disputes don’t have the same constitutional rights as criminal defendants, O’Donnell said the need to prioritize criminal cases has a negative trickle-down effect on civil cases.

“In the court system you need to prioritize criminal cases, but you’ve got a bunch of civil cases with commercial disputes that are impeding business or personal injury and private liability suits where people are unemployed and waiting for their opportunity for justice and defendants are waiting for their opportunity to prove their innocence.”

So far, the state’s courts have announced closure and postponement orders on their websites. Jackson said going forward, he hopes Colorado’s state and federal courts are proactive in notifying lawyers about new orders resulting from the coronavirus containment efforts, such as using the e-filing system for notifications.

“It’s only going to help if that information is distributed as quickly as possible.”