In a divided ruling last week, Colorado’s second-highest court decided an El Paso County judge wrongly dismissed a criminal case when she should have instead issued warrants to arrest the witnesses who failed to appear.

Given the circumstances in March 2021, which included COVID-19 restrictions on jury trials and the prosecution’s lack of evidence, then-District Court Judge Jann P. DuBois threw out the charges against Zacharia Childers after determining the case would not go to trial in time. In doing so, she denied a request from the district attorney’s office to issue arrest warrants against two witnesses who were no-shows.

But by a 2-1 decision, a panel of the Court of Appeals believed the rules of criminal procedure required DuBois to grant the prosecution’s request, with no leeway for her to decide otherwise – thereby keeping the case alive.

“Simply put, based on the plain language of the rule, the prosecution was entitled to have the court issue bench warrants for the arrest of the two nonappearing witnesses,” wrote Judge Craig R. Welling for himself and Judge Jerry N. Jones in a Dec. 8 opinion.

Judge Timothy J. Schutz disagreed. Reading the sequence of events that unfolded in DuBois’ courtroom, Schutz felt the prosecution had the opportunity to ask DuBois for another trial date or otherwise object to the dismissal of the charges. Instead, the prosecutor remained silent on both issues.

“The context in which the requests and objections are made, or not made, to the trial court matters,” Schutz wrote.

A sheriff’s deputy arrived at Childers’ home in Yoder with the intention of performing a welfare check, having received a call about a suicidal person. Then the deputy learned Childers had allegedly threatened a family member with a knife. In response, the deputy arrested Childers and prosecutors charged him with felony menacing and a bias-motivated crime.

Under state law, defendants must be brought to trial within six months of their not guilty plea, with limited exceptions. For Childers, the trial deadline was April 28, 2021. At that time, there were restrictions on the number of jury trials that could occur due to the ongoing COVID-19 pandemic, but Childers’ received a trial date of March 8.

At a pretrial conference on March 5, the prosecutor revealed that two of the witnesses – the victim and another relative of Childers’ – had received a subpoena to testify only a couple of days beforehand. Warning that it would be too late to bring in jurors, DuBois asked the parties to suggest a new trial date before the deadline, but the prosecutor requested to maintain the March 8 date. Childers’ lawyer replied that if the witnesses did not appear, she would ask DuBois to dismiss the case.

When March 8 arrived, none of the prosecution’s witnesses was present, including the family members, a 911 dispatcher and the sheriff’s deputy. As promised, the defense asked to terminate the case, arguing the COVID-19 restrictions meant a trial within the legal deadline would be unlikely.

DuBois asked the prosecutor if the district attorney’s office had even interviewed Childers’ family members yet. No, the prosecutor replied.

“I’m dismissing this case,” DuBois said. “Given the current status of immeasurable cases we have in front of us, if the DA didn’t (subpoena) until a couple of days before the trial, hasn’t interviewed these family members or the victim, then I see no reason – no societal reason – for this to proceed forward since they failed to appear.”

She asked if the prosecutor wanted to add anything on the record, and the prosecutor began to ask DuBois for a bench warrant for the witnesses’ arrest.

“I’m not issuing warrants for them,” the judge interrupted. “These are family members who were served.” DuBois once again asked the prosecutor if there was anything else she wanted to say.

“No,” responded the prosecutor.

The Fourth Judicial District Attorney’s Office then appealed the dismissal of the case. It pointed out that under Colorado’s Rules of Criminal Procedure, judges are required to issue a bench warrant upon request when witnesses who are under subpoena fail to appear. Childers’ attorney, on the other hand, noted the prosecutor never objected to DuBois’ dismissal order.

“When the state shows up for trial with no evidence, dismissal is a perfectly appropriate remedy,” Deputy State Public Defender Mark Evans told the appellate panel during oral arguments.

Jones was the most vocal critic on the appellate panel of DuBois’ actions, speculating “she just didn’t like the case” and never gave the prosecutor an opportunity to ask for a new trial date.

“When the prosecutor starts to talk, the court interrupts her mid-sentence,” Jones said. “She opens her mouth and gets half a sentence out and gets shut down.”

The panel’s majority agreed the prosecution was entitled to have DuBois issue a warrant to arrest the witnesses for their nonappearance, and she acted contrary to the law by denying the request. Given DuBois’ mistake, it did not matter that the prosecution had not specifically objected to the case’s dismissal.

“Asking for bench warrants for the arrest of the two nonappearing witnesses can only be understood as an objection to dismissal of the case,” Welling wrote.

Schutz saw things differently. The prosecution had not spoken to the witnesses prior to trial, insisted on keeping the March 8 trial date and ultimately showed up with no evidence to support its charges, he observed. Schutz also rejected the idea that DuBois had blocked the prosecutor from lodging an objection, noting the judge had asked twice if she had anything else to say.

“I cannot conclude the prosecution was denied the opportunity to request a continuance or object to the dismissal,” Schutz wrote. The failure to do so “cannot be excused.”

The case is People v. Childers.