An El Paso County judge incorrectly dismissed a domestic violence case after the alleged victim did not appear on the morning of trial, when she should have instead granted the prosecution’s request to issue a warrant, Colorado’s second-highest court ruled last week.

Under the rules of criminal procedure, a judge “shall issue” a warrant for a person’s arrest when the person does not obey a subpoena to appear and the party that issued the subpoena requests that law enforcement bring them in. Instead, the judge presiding over Robert Neal Henderson’s criminal case declined to issue a warrant, rejected a request to postpone the trial and dismissed the charges.

“We recognize that the court had to balance significant competing interests, including the prosecution’s interest in having the victim testify in the case, Henderson’s statutory right to speedy trial, the availability of a jury pool, and the court’s limited availability,” wrote Judge W. Eric Kuhn in the May 29 opinion of a three-judge Court of Appeals panel.

Nonetheless, he continued, “the court misapplied the law by not issuing a bench warrant for the non-appearing subpoenaed victim at the prosecution’s request.”

Consequently, the Court of Appeals reinstated the charges against Henderson.

Henderson stood accused of multiple domestic violence-related offenses. He pleaded not guilty in January 2024 and had to be brought to trial within the six-month speedy trial deadline. Originally, Henderson’s trial was scheduled for April 23.

At a pretrial readiness conference on April 1, the prosecutor said she had not been able to serve the victim with a subpoena to testify. At a second conference the day before trial, the prosecutor still had not subpoenaed the victim, and she said the victim was possibly being evasive. 

As a result, District Court Judge Lin Billings Vela postponed Henderson’s trial until June 4. That morning, however, the victim did not appear, despite being subpoenaed.

The prosecution suggested the victim may have overslept or she was purposefully avoiding testifying. One prosecutor said she had spoken with the victim the previous day and told the victim she had to appear. The prosecution then asked Billings Vela to issue a warrant, but to hold off on arresting the victim until the following morning.

The prosecution also suggested postponing the trial to the next day and pulling from a new group of jurors; moving the entire trial to late June; or doing jury selection with the jurors who were there and pushing the presentation of evidence to the next morning.

Billings Vela identified problems with each scenario. First, the jurors coming in the next day were already intended for other trials, so there might not be jurors available for Henderson’s trial. Second, Billings Vela could not do a trial in late June.

Finally, Billings Vela was concerned about starting jury selection with the victim’s appearance up in the air.

“You want the citizens to give up today and tomorrow,” she said. “To you it may just be no big deal because this is your job. We ask citizen jurors to give up their jobs.”

Ultimately, Billings Vela said the “Court of Appeals may disagree with me” that juror inconvenience is a concern, but she denied the request to postpone the trial in the hope that the victim would show up.

“Hope is not a plan that I can make decisions on,” she said in dismissing the case.

The district attorney’s office appealed the dismissal, arguing Billings Vela first failed to honor the prosecution’s request to issue a warrant and, further, placed too much weight on the inconvenience to jurors.

“Part of their duty is going to require some inconvenience,” Deputy District Attorney Tanya A. Karimi told the Court of Appeals panel during arguments in May. “And that inconvenience shouldn’t override dismissal of a case.”

Judge Jerry N. Jones observed Billings Vela did not even address the request for a warrant, despite the rule’s requirement that she “shall issue” one.

“I know judges — and should — consider jurors’ convenience and all that sort of thing. But there are some weightier concerns at issue here,” he said. “It just seems like it’s kind of error on error.”

In its decision, the panel agreed Billings Vela was obligated to issue a warrant for the victim’s arrest after the prosecution had asked for one. She also failed to consider whether postponing the trial would have allowed the prosecution to get the victim into court.

“After all, the prosecutor knew where the victim lived and was in contact with her. The prosecutor had even warned the victim that the court could issue a bench warrant,” wrote Kuhn. “Under these circumstances, the district court should have considered whether the requested bench warrant and a one-day continuance would have allowed the prosecutor to use the threat of arrest associated with the warrant to compel the victim’s attendance in court.”

The case is People v. Henderson.