In late October, after a few hours of deliberation, an Elbert County jury convicted 57-year-old Joseph Robert Hendershott of driving under the influence. While the conviction was hardly a groundbreaking legal case for prosecutors in the 18th Judicial District, there was still reason to celebrate: As COVID-19 cases were rising across Colorado this past fall, a trial with 12 jurors had gone off without delay—a small victory in a year when most everything had been flipped upside down. “I am pleased that our judges and criminal justice system partners continue to prove that we can pursue justice and protect Constitutional rights even during a global pandemic,” District Attorney George Brauchler said in a statement released from his office the next day.
The feeling didn’t last long.
A week after Hendershott’s conviction, the district’s chief judge ruled that the court would stop summoning jurors until mid-January, effectively postponing trials within the district. Overnight, dozens of cases in Arapahoe, Douglas, Elbert, and Lincoln counties were put into judicial limbo—joining a slew of counties across Colorado that had suddenly shelved jury trials over COVID concerns. “We were totally caught off guard,” says Brauchler, whose office this winter said that it will prosecute 121 fewer felony trials this year than last because of the pandemic. “Cases are piling up, and they don’t go away,” he says. “This is not justice for anyone.”
Across Colorado, judicial staffs, prosecutors, and attorneys contracted the novel coronavirus through the fall, throwing a wrench into proceedings and forcing some courts to restrict operations or shut down completely. How those trials might happen next year is anyone’s guess right now, even with the COVID-19 vaccine rolling out in mid-December. One thing is certain, though: Trials scheduled for 2020 will bump into 2021 trials, which could push more trials back throughout the year.
By November, every judicial district within the metro area had postponed trials until 2021, creating an unprecedented backlog within the state’s court systems. In Boulder County, where jury trials were halted until mid-January (and most civil trials would be put off until July) District Attorney Michael Dougherty worried that delays could eventually run afoul of speedy trial rules. The jury hiatus in Douglas County could create issues with the prosecution team in the 2019 STEM shooting case because Brauchler, who is term limited, will be out of office a month before that trial now is supposed to begin. “These can become huge problems,” Brauchler says.
Among those who have pushed for delays are the state’s public defenders, who’ve cited health and safety issues—among a slew of other pandemic-related dilemmas. In October, a potential COVID-19 contact within the defense team resulted in an El Paso County mistrial for a 32-year-old murder case. Less than a month later, a judge in La Plata County declared a mistrial in the murder trial of a man accused of killing his son after public defenders in that case said they were possibly sick with COVID-19.
Public defenders also have complained that remote access between attorneys and clients have sometimes been restricted because of jailhouse rules, whether that’s because of health-related issues or blanket restrictions on technology. Public defenders are also anxious that the lack of in-person meetings can create distrust with clients, making the criminal defense more difficult.
So too have they been concerned about indigent clients who were released from jail on bond, don’t have reliable phones, and can’t be contacted in person. In rural areas, public defenders have complained that spotty cell phone and internet service has made connecting with clients a hassle, and that COVID-19 has made home visits an impossibility. “What should be a 20-minute meeting for our public defenders can turn into a two- or three-day search, and that doesn’t work for anyone,” says Maureen Cain, the director of legislative policy and external communications for the Office of the Colorado State Public Defender, which has 22 regional offices across Colorado. “It’s like we’re working twice as hard and not getting nearly as much done. Still, the quality of our defense cannot be diminished. We’re in a challenging environment, and I’d hope everyone can understand that.”
Brauchler says defendants’ attorneys across the state likely will press for more plea bargains next year—hoping to settle cases, rather than risking jury trials—which could be enticing for prosecutorial teams looking to clear cases and make room for a host of new trials in the coming year. Brauchler has been particularly troubled by the case of Devon Erickson, one of two people accused in the STEM School shooting. His trial was postponed until February—amid protests from Brauchler and the family of Kendrick Castillo, the teenager who was killed in the shooting.
While Douglas County prosecutors are confident in their case against Erickson, prosecuting other postponed cases could become troublesome simply with the passage of time. Witnesses might become reluctant to testify, and memories can fade. “Very few prosecutions get better with time,” Brauchler says. “Victims deserve to have a resolution, and right now, no one can say when that’s going to happen.”