Colorado’s second-highest court on Thursday declined to find a defendant’s right to a speedy trial was violated, even as the appellate judges were disturbed that an Arapahoe County judge and prosecutor waited until the last minute to release 31,000 pieces of evidence to the defense.

As part of the constitutional guarantee of a speedy trial, Colorado law generally requires the government to bring a defendant to trial within six months of their not-guilty plea. Lawmakers have established one consequence for a violation: dismissal of the charges and a bar on further prosecution.

Brandon John Conlon argued his April 2022 trial took place beyond the December 2021 deadline, as he never consented to extending the window any further. The trial judge, instead, moved the deadline after delaying an evidentiary decision for months. Then, after the decision, the prosecutor further delayed handing over the 31,000 files of evidence because she was unaware she could.

A three-judge Court of Appeals panel determined that under Colorado Supreme Court precedent, it was obligated to find the extension of Conlon’s speedy trial deadline was attributable to the defense’s need to process the large amount of evidence. But even though Conlon was validly tried in April 2022, Judge Lino S. Lipinsky de Orlov conceded Conlon’s attorney had no choice but to accept a postponement because of the actions of others.

Such a scenario “forces defense attorneys to choose between two of their clients’ rights — the right to effective assistance of counsel and the statutory right to a speedy trial — when the defense receives a massive volume of discovery materials only days before trial as a consequence of the prosecutor’s lack of diligence,” he wrote in the panel’s Oct. 2 opinion. “Conlon and his counsel bore no responsibility for this situation.”

A jury convicted Conlon of multiple domestic violence-related charges. He received a sentence of 13 years in prison. Although the criminal case began in 2019, there was a series of postponements due to COVID-19 and other factors.

Initially, the victim consented to law enforcement extracting all the contents of her phone. However, she later changed her mind. In December 2020, the prosecution asked the trial judge to review the cell phone contents and determine which portions the defense was entitled to see.

Several weeks later, District Court Judge Joseph R. Whitfield Jr. inherited the case after the prior judge left the bench. By June, there was still no decision about the cell phone evidence. Whitfield said he got access to the files “late last week” and he “could have those ready” for the planned Oct. 11 trial. At that point, the six-month speedy trial deadline landed on Dec. 1.

On Sept. 27, one day before the pretrial conference and two weeks before the trial itself, Whitfield issued an order for the prosecution to disclose 31,000 files from the cell phone.

In court the next day, Conlon’s attorney said he needed time to review the files and requested that the trial be rescheduled within the speedy trial deadline. Whitfield, instead, found Conlon was waiving his right to a speedy trial. Over the defense’s protest, he reset the deadline into 2022.

On Nov. 21, public defender Zack Tennant moved to dismiss the two charges that were relevant to the cell phone evidence. For his reasoning, he told Whitfield the prosecution never gave him the 31,000 files.

Deputy District Attorney Leah Perczak responded that her office did “not have possession of” the evidence. Instead, she believed Whitfield had the only copy and he should “release the materials … to both parties.”

She was incorrect, as she acknowledged in a Nov. 23 court appearance that the sheriff’s office also had a copy of the phone data. Whitfield said Perczak “should be well aware” that law enforcement had her evidence. Nonetheless, he did not find that Perczak acted in bad faith.

The Court of Appeals panel, in analyzing whether Conlon should have been tried before the Dec. 1 deadline, looked first at Whitfield’s delay in issuing a decision and then Perczak’s delay in disclosing the evidence.

The panel initially agreed Whitfield incorrectly found Conlon had forfeited the Dec. 1 deadline, as the defense had “no choice but to seek a continuance” because of Whitfield’s last-minute evidentiary order.

“Conlon was not responsible for the court’s 169-day delay in deciding which additional phone records needed to be produced to defense counsel,” wrote Lipinsky. Because Whitfield could not sanction himself, as he might sanction a prosecutor, the only option for the defense was to postpone the trial, which it objected to doing.

Lipinsky elaborated that bringing Conlon to trial by Dec. 1 was feasible, but only if Perczak had promptly obeyed the order to disclose the 31,000 cell phone files.

The panel turned to People v. Duncan, a 2001 decision of the Supreme Court, which held that a postponement to allow the defense to review late-disclosed evidence can only be attributed to the government when the prosecutor acts in “bad faith.”

“Although the prosecutor may have been ignorant of basic law enforcement procedures,” wrote Lipinsky, she believed “she had provided the court with the only complete copy of the contents of the victim’s phone.”

Because there was no bad faith on Perczak’s part, the panel found Conlon’s attorney “effectively” triggered an extension of the speedy trial deadline by saying he was unprepared to defend against the charges without the evidence.

Lipinsky emphasized that bad faith was the “only factor” until the Supreme Court said otherwise. Yet, it was “difficult to fathom” why Conlon’s speedy trial right had to cave due to Perczak’s “lack of diligence and ignorance of the discovery rules.”

“We appreciate the untenable position in which the court and the prosecution placed defense counsel,” Lipinsky concluded.

Colorado Politics contacted the U.S. Attorney’s Office, where Perczak now works, for her response to the opinion. The office did not immediately respond.

The case is People v. Conlon.