A Jefferson County judge’s comments about the defendant, accidentally broadcast over a live stream that the judge did not realize was running, do not provide grounds for a new trial, Colorado’s second-highest court ruled last week.

Daniel Boman Olguin stood trial in 2021 for a felony trespassing charge. Due to pandemic precautions, the proceedings were streamed online and jurors remained in the courtroom for deliberations to comply with distancing guidelines.

After Chief Judge Jeffrey R. Pilkington read the jury its instructions, everyone temporarily left the courtroom to prepare for the jurors’ deliberations. Although Pilkington closed his laptop, he neglected to stop the live stream over Webex. Consequently, observers heard Pilkington and his court reporter talking about the case. 

Only after the jury entered and began its work did court staff alert Pilkington that Webex was still broadcasting from the courtroom. A law clerk told jurors to stop what they were doing and Pilkington shut off the live stream. Roughly 20 minutes of erroneous broadcasting occurred after Pilkington closed his laptop.

Based on what he heard from listeners of the live stream, Olguin’s lawyer asked Pilkington if he had said there was “no question” Olguin was guilty during his conversation. The defense also produced statements from listeners, one of whom allegedly heard Pilkington say Olguin’s state-of-mind defense was “crap” and “nonsense.” 

Another listener said Pilkington’s alleged comments about Olguin’s guilt made her lose confidence in the judicial system.

Case: People v. Olguin

Decided: January 11, 2024

Jurisdiction: Jefferson County

Ruling: 3-0

Judges: Jerry N. Jones (author)

Sueanna P. Johnson

Timothy J. Schutz

Background: Colorado Supreme Court issues uniform guidance for livestreaming criminal cases

After confirming with jurors that the accidental live stream did not affect their verdict, Pilkington addressed the lawyers with his own recollection about what happened. He acknowledged he spoke with his court reporter about issues he thought the jury might ask about, including Olguin’s state of mind.

“But I have no recollection of stating or suggesting that (Olguin) was guilty,” Pilkington continued. “It’s something that, quite frankly, I talk about with my law clerk and my personnel. It’s part of being a judge that we have these conversations. Apparently, others overheard that and they can draw whatever conclusions, but it was, in my mind, an intellectual conversation about where this jury might ask questions.”

On appeal, Olguin argued Pilkington’s alleged statements about his guilt rose to the level of denying Olguin his right to a fair trial.

“The judge’s comments denigrating Mr. Olguin and Mr. Olguin’s defense, that were broadcast over the Webex livestream, showed the judge’s ‘negative bent of mind’ against Mr. Olguin, which infected the entire trial,” argued Deputy State Public Defender Kira L. Suyeishi.

A three-judge panel for the Court of Appeals noted it could only question the fairness of a trial when a judge is actually biased. But even if Pilkington said the things the witnesses alleged he said, the panel concluded Pilkington’s own thoughts about the evidence were not enough to establish bias.

Pilkington’s “opinion as to Olguin’s guilt or innocence after the presentation of all the evidence and outside the jury’s presence doesn’t demonstrate subjective motivations indicative of deep-seated antagonism toward Olguin,” wrote Judge Jerry N. Jones in the Jan. 11 opinion.

Outside of Colorado, there have been examples of judges facing scrutiny for their use of live streams. The Chicago Sun-Times reported in 2022 that a trial judge made sexist comments about a defense attorney before realizing he was broadcasting online. The San Antonio Express-News also reported on a trial judge who used YouTube to live stream her courtroom, upsetting lawyers who saw viewers’ freewheeling discussions in the comments and chat sections.

The case is People v. Olguin.