An El Paso County judge incorrectly postponed a defendant’s trial past the legal deadline, and consequently her convictions are void, the Court of Appeals ruled on Thursday.

Under Colorado law defendants must be brought to trial within six months of a not guilty plea, pursuant to the Sixth Amendment’s guarantee of a speedy trial. Unless an exception applies, the General Assembly has provided one consequence for a violation: dismissal of the charges and a prohibition against future indictment.

“It is the prosecution and trial court’s duty to make sure the defendant’s speedy trial rights are upheld,” deputy public defender Meredith O’Harris told the three-member appellate panel during oral argument.

Lonnie E. Shaffer pleaded not guilty to two drug charges in April 2017. The El Paso County prosecutor had two witnesses: a drug analyst who could testify that the substance found in her vehicle was heroin, and the state trooper who arrested Shaffer. He estimated their testimony would take about two hours.

Shaffer’s trial was scheduled for Aug. 21, but a series of requests pushed the start to Oct. 5. That morning, the defense attorney had an obligation in another case, so District Court Judge Gregory R. Werner pushed the trial to the afternoon. When everyone reconvened in the courtroom, the prosecutor announced that the state trooper scheduled to appear at 4 p.m. would not be available the following morning. 

Therefore, if the parties could not get through jury selection and opening statements in time, the witness would have to appear in the afternoon again. The prosecutor suggested the trial proceed with that scheduling note in mind.

However, Werner responded that “we’re not going to be able to get a jury done or selected here today and get the witnesses on that need to be on.” He reset the trial to Oct. 16 and, because the defense lawyer’s morning obligation in the other case was also rescheduled, attributed the day’s delay to the defense.

When Oct. 16 arrived, the prosecutor disclosed that the drug analyst was unavailable and asked for another extension. The defense objected, but Werner rescheduled the trial to Feb. 5, 2018, a practice known legally as a continuance.

“Six months is not always enough time to bring a case to trial, especially when the defense requires extensive investigation, preparation, and litigation,” explained Charles J. Testa on the website of Berg Hill Greenleaf Ruscitti. “When the defense requests a continuance, that constitutes a waiver of the right to a speedy trial, re-setting the six-month clock as of the date of the waiver.”

By ascribing the Oct. 5 postponement to the defense counsel, Werner believed the new trial date complied with the law. A jury convicted Shaffer on both charges following her February trial.

“The problem, it seems, was the state trooper’s schedule,” wrote Judge Elizabeth L. Harris in the court’s opinion. But the prosecutor “did not share with the court until the moment trial was set to begin.” Under the panel’s reading of events, Werner had already agreed to start the trial on the afternoon of Oct. 5, and the defense attorney was ready to proceed at that time. Therefore, Werner was incorrect to find the defendant waived her speedy trial right with that day’s late start.

The appellate panel observed that a six-month extension is allowable if prosecutors have diligently attempted to obtain evidence that is key to the case, but it is unavailable by the trial date.

Prosecutors argued that even if the court determined the defense was not responsible for the extension of the speedy trial deadline on Oct. 5, the extension Werner granted on Oct. 16 was proper because the drug analyst, a central part to the state’s case, was unavailable. 

“She was under subpoena. She was legally required to be in Virginia that week. There was only so much the prosecutor could do,” Daniel Rheiner, representing the attorney general’s office, told the judges at oral argument. O’Harris, the public defender, disagreed.

“The state didn’t even allege at the hearing that it had acted diligently in securing either witness’s presence,” she responded.

The appellate panel sided with the defense. Because the law requires prosecutors to show “due diligence” to obtain evidence, the trial court would have needed to evaluate the prosecutor’s attempts to get the drug analyst to appear. Werner, believing the defense had already triggered a six-month extension, did not make those findings.

“The prosecutor did not offer any information about the efforts he had made to secure the drug analyst’s appearance for trial on October 16 and the reason why those efforts were unsuccessful,” Harris noted.

The panel overturned the two convictions. The case is People v. Shaffer.