Court and Law

A prosecutor’s positive COVID-19 test has renewed health concerns about resuming court in El Paso County during the pandemic.

Starts, stops and money woes created by the coronavirus pandemic have put a strain on Colorado’s court system. The latest major court proceeding to fall victim to COVID-19 delays is the Pueblo County murder trial of Donthe Lucas, 27, accused in the 2013 killing of Kelsie Schelling. 

The long-awaited trial was postponed for two weeks on Feb. 10 when an unnamed person who was in the courtroom on Feb. 8 and 9 tested positive for the coronavirus. The Pueblo Department of Public Health and Environment told Colorado Politics in an email. “The positive COVID-19 case informed their employer, and that employer reached out to the health department.”

Presiding Judge Thomas Flesher postponed the trial until 1:30 p.m. Feb. 24. 

“This delay is unfortunate,” Flesher told the courtroom via Webex.  “But it’s necessary given the nature of the world we are in today.”

Flesher’s decision came after an emergency phone call on Feb. 9 to discuss the policy of courtroom safety with public health and court officials and reportedly lasted until 9 p.m. He spoke with a host of public health professionals, including the PDPHE director, medical director and regional epidemiologist. Also on the call were prosecutors, court administrators and Lucas’ attorneys. After safety conditions inside the courtroom, including discussions on airflow, mask protocols and social distancing with the infected person were determined, Flesher was convinced the trial could not go on as scheduled. “We’re in challenging times,” he said. “This is another challenge we have to deal with and we will deal with it the best way that we can.”

The chief judge in each of Colorado’s 22 judicial districts is responsible for making decisions that affect their courthouses, and the rules change according to coronavirus levels in their respective counties.

Currently, Pueblo County is at the Blue level on the Colorado Department of Public Health and Environment’s COVID dial, meaning that residents should use caution when it comes to coronavirus transmission. The courthouse is operating trials and hearings with a policy requiring appropriate social distancing, masking at all times, having temperatures taken and inquiring visitors if they have symptoms of the virus. 

Concerns from both sides 

Mesa County District Attorney Dan Rubinstein is concerned that trial delays due to the virus will lead to uncertainty and a workload four times what his prosecutors would normally see. 

“This could result in softer plea offers and lack of justice for a lot of victims. It’s difficult on them,” he said. 

Criminal Defense Attorney Ryan Brackley, whose career until now was spent as a prosecutor in Manhattan and, more recently, in Boulder County and Denver, sees the other side — prejudice to the defendant. He is worried that when courts send jurors home, they do so in good faith that the jury will return without discussing the case or giving in to curiosity and reading news reports.

“Any delay in the middle of a trial, particularly a lengthy trial with complex and circumstantial evidence, has to be viewed in terms of prejudice to the defendant and on his right to a fair and impartial trial,” Brackley said.

After numerous delays, including one last spring due to the coronavirus, the judge declared a mistrial in the case of Mark Redwine, 59, accused of murdering his 13-year-old son, Dylan, in 2012. Sixth Judicial District Judge Jeffrey Wilson’s decision came last November over COVID-19 concerns. Initially, the defense team requested a delay of up to two weeks, stating that their team was showing coronavirus symptoms. Next, the prosecutor turned the case around, accusing the defense of being reckless over the previous weekend and ignoring quarantine protocols. 

Later,  Wilson suspended jury trials until Jan. 25, stating that “a jury pool cannot be safely assembled due to the COVID-19 pandemic.” The new trial, to begin April 21, 2021, has been set for seven weeks.

Budget worries

Budget cuts to Colorado’s courts prompted by the pandemic are creating backlogs due to staff layoffs and fewer resources. 

Sixteen law clerks lost their jobs in the 18th Judicial District, Colorado’s largest district by population, which covers Arapahoe, Douglas, Elbert and Lincoln counties. 

In an unprecedented move, Boulder County’s 20th Judicial District laid off its court reporters, the people who transcribe every word said in a courtroom hearing. The district now relies on a machine to transcribe court hearings, which Boulder County District Attorney Michael Dougherty says is an imperfect system.

“The machines are not as good as humans because we have masks and are not always near the microphones,” Dougherty told Colorado Politics. “Court reporters let us know when they cannot hear. Machines don’t.”

The 20th is now relying on funding from the CARES Act to bring in human beings to transcribe their bigger trials, but these freelance court reporters can charge as much as $600 per day. That can rack up to tens of thousands of dollars for a complex murder trial. Transcription for the Jose Rios trial last fall, for example, cost $15,000. Rios was found guilty of first-degree murder and felony murder in the 2019 killing of Gary Hockaday and was sentenced to life in prison without the possibility of parole. 

As more people are vaccinated, courts will begin to open up and the juggling of backlogged cases will begin. For Dougherty, even a slow, consistent start is better than the uncertainty of the last year. 

“There is a light at the end of the tunnel,” he said. “I’m excited for it.” 

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