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Due to the COVID-19 pandemic, prosecutors may request up to a six-month delay without violating the constitutional requirement to a speedy trial, the Colorado Supreme Court decided on Monday.

“We have never had occasion to consider whether an unprecedented public health crisis like COVID-19 may justify a speedy trial tolling continuance,” wrote Justice Carlos A. Samour, Jr. for the court. “We have been fortunate. That is, until now.”

In a pair of misdemeanor cases from Gilpin County, both before the same county court judge, the defendants were to reach their trial deadline on April 9. The Sixth Amendment guarantees the right to a speedy trial, and under Colorado law, prosecutors have six months from the date of a not guilty plea to bring a defendant to trial. If they fail to do so, the charges are dismissed. 

The Gilpin County court scheduled both defendants to begin trial on March 17, but the day before, Jeffrey R. Pilkington, chief judge of the First Judicial District, halted proceedings because of the pandemic unless there were “exigent circumstances” or “speedy trial constraints.” Prosecutors asked for a six-month continuance, termed a “tolling,” but Judge David C. Taylor scheduled both trials for May 13 without delivering a ruling.

On March 25, Pilkington again extended the cancellation of trials from May 1 through May 15. Taylor responded to another request from the prosecution by again delaying the trial and not ruling on the merits of extending the speedy trial window. He pointed out, according to the summary from Samour in the Supreme Court’s opinion, that “proceeding to trial in these and other cases during a pandemic would prompt jurors to question the justice system’s dedication to the public’s well-being,” in addition to putting them in close proximity to each other.

Taylor added that there was no way to safely hold a hearing on the prosecution's motion until a May 13 hearing. Prosecutors then appealed directly to the Supreme Court, bypassing the normal appeals process. The justices accepted, with the opinion noting that asking a judge within the judicial district to first interpret the order of their chief would create an “uncomfortable position.”

“Here, the court continued both cases past the speedy trial deadline without giving the prosecution an adequate opportunity to be heard and without making any findings or issuing final rulings,” wrote Samour. He noted that state statute contains reasons for extending the six-month window, such as if evidence were likely to become available past the deadline.

The Supreme Court decided that a six-month continuance owing to the pandemic is permissible, as long as evidence that is key to the case is unavailable and there are grounds to believe that such evidence will be obtainable by the new trial date. Samour clarified that “evidence” could include testimony from a witness whose health or age makes them especially vulnerable to death from COVID-19.

“Without affording the prosecution a suitable opportunity to be heard and without making an adequate record or issuing a final ruling, the county court continued each trial beyond the speedy trial deadline,” Samour concluded. “Though we appreciate the extraordinary situation the county court confronted and fully understand that its actions were sparked by an administrative order from the Chief Judge, this was nevertheless error.”

Peter Weir, the district attorney for the First Judicial District, said he was pleased that prosecutors statewide now have guidance from the court. 

"Originally we were very concerned with overwhelming the healthcare system," he said. "We've had an analogous situation now in the criminal justice system. What has happened is, even though courts have been operating in a very limited or almost a suspended capacity for quite some time, cases keep coming in."

Weir pointed out that earlier in June, Chief Justice Nathan B. Coats extended a moratorium on jury trials until Aug. 3. In Weir's district, which covers Gilpin and Jefferson counties, he said that prosecutors have taken to offering more attractive plea bargains to some defendants in order to "triage" cases.

"Given the extraordinary circumstances that the court recognizes with this decision that the coronavirus presents," he added, "we were pleased that it now allows us some relief."

Ian P. Farrell, an associate professor of law at the University of Denver, approved of the Supreme Court's decision, saying the alternatives would be to provide "get out of jail" free cards to people whose six-month deadlines had passed during the pandemic, or to hold jury trials in unsafe conditions.

"Either of those options seems worse to me than extending the time for a criminal trial by six months or less — with the enormous caveat of: as long as the defendant is not held in jail during that time. Just as the prosecution are not to blame for the evidence being available, neither are the defendants," he said.

The justices ordered the county court to hold a hearing on the prosecution's request for a continuance for up to six months. The cases are In re Lucy & Meresa.

This story has been updated with additional comment.

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