With jury calls suspended since mid-March, district attorneys across the state have been left with few options on what to do with impending jury trials.

Twenty-first Judicial District Attorney Dan Rubinstein said Colorado courts have been continuing trials on two independent theories: 1) there is a mistrial because a jury can’t be seated; 2) speedy trial deadline is extended because witnesses can’t be brought in.

The Colorado Supreme Court provided some direction for district attorneys earlier this week in a ruling regarding two Gilpin County cases, in which the court said a continuance can be granted for the speedy trial period for up to six months if three requirements are met. The prosecution must establish: evidence material to the case is unavailable; due diligence has been exercised to obtain that evidence; and it is reasonable to believe that the unavailable evidence will be available on the new trial date.

“If the prosecution cannot get or use evidence material to its case — including, for instance because a public health crisis prevents it from safely compelling the presence of witnesses in general or a specific witness in particular — then that evidence is unavailable,” the Colorado Supreme Court said in its ruling last Monday. “...(However) the prosecution cannot use a public health crisis for its lack of due diligence.”

Courts have pointed to the fact that witnesses cannot be safely compelled to appear in court due to the health crisis as a reason why evidence material in their cases is unavailable. Similarly, jurors would be in “extremely close proximity” to each other if a trial were to be held.

Rubinstein said the Colorado Supreme Court’s clarification will help solve many problems as prosecutors now know the best way to continue cases facing speedy trial deadlines.

“A mistrial gives you 90 days, this gives you six months,” Rubinstein said.

He said there have been 85 trials that his office has continued thus far.

“The urgency to have our court resolve the question today cannot be overstated,” the Colorado Supreme Court decision read. “The COVID-19 pandemic has turned our lives upside down and made it virtually impossible to hold jury trials in criminal cases.”

Since the start of the pandemic, trial courts have thus far struggled with what to do with a defendant’s statutory right (six months) to a speedy trial, the Colorado Supreme Court admitted, as the two Gilpin County cases illustrated.

In one case, a defendant pleaded not guilty on June 12, 2019, with their trial originally scheduled for October 9, 2019. That trial date was pushed back to March 17, 2020 with the defendant’s speedy trial period set to expire on April 9, 2020.

In the other, a defendant pleaded guilty on Oct. 9, 2019 and their speedy trial deadline was set to expire on April 9, 2020.

On March 16, the Chief Judge of the First Judicial District issued an administrative order requiring all jury trials set through May 1 to be vacated. Both cases were continued until May 13, more than a month past the speedy trail deadline, the Colorado Supreme Court explained.

Rubinstein said the 21st Judicial District did not have any cases as “egregious” as the ones referenced by the Colorado Supreme Court, but he felt Monday’s decision helped solve many problems, but not all.

He remains concerned about what will happen when the court opens back up and his 85 trials are allowed to resume at once.

“Once the crisis is over, there is no relief for the backlog it caused,” Rubinstein said. “These cases keep getting pushed back and it has created a bottleneck situation. We have a lot of trials set for August and September right now.”

Discussions across the state continue as to what jury calls will look like once they are allowed to resume. In an order issued June 15, Colorado Supreme Court Chief Justice Nathan B. Coats said no one could be summoned by state courts to assemble for jury service any time prior to Aug. 3.

Rubinstein said a committee has been formed with a proposal to have prospective juries called 30 at a time to adhere to social distancing guidelines and will utilize empty courtrooms and live monitors to streamline the process.

Juries would be funneled into a final courtroom, utilizing not only the jury row but the audience aisles to spread out to 6 feet between one another, with other potential jurors watching on video until 12 are ultimately selected.

Rubinstein said his proposal has been sent to the chief judge with a meeting scheduled for July 10, but with four to six weeks for jury calls, he felt it was “unrealistic to think we’ll be ready in August.”

The 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln Counties, obtained a waiver from the Colorado Supreme Court to resume jury trials in Arapahoe and Douglas Counties with requirements of seven jurors or less.

Juror summons have started to be issued with these limited jury trials expected to resume the week of July 20.

In an order released this week, Colorado Chief District Court Judge Philip Brimmer said the Wayne Aspinall Federal Building and United States Courthouse in Grand Junction, where federal trials are held, is a historic courtroom and because of size limitations “cannot be configured to meet social distancing requirements for certain types of court proceedings.”

Effective Aug. 3 and until further notice, no civil or criminal trial requiring a jury of 10 or more shall be held in the courthouse, he ordered.

The presiding judge can determine whether a non-jury trial or trial of a jury of less than 10 may proceed.

The grand jury for Jury Division 3 will not convene until further order of the court, he said.

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