Prison Cells

The House of Representatives signed off on a proposal to push the dates of certain criminal trials three or six months into the future on Friday, setting the speedy trial bill on a speedy run through the Senate in the final days of the legislative session.

As introduced, House Bill 1309 ran into uniform opposition from defense attorneys, who argued against tinkering with the government's requirement to bring a criminal defendant to trial within six months of their not guilty plea. Maintaining that deadline, they said, even with scores of cases piling up, gives an incentive to prosecutors to take a hard look at the evidence and decide whether they are truly ready for trial, or if they can resolve the case by some other means.

And critically, keeping people in jail for three extra months or out on bond for six more months seemed, to some, too great an imposition to place on those who are innocent until proven guilty. A report from the ACLU of Colorado in October found jail populations in the state dropped to 47% of capacity on average during the pandemic, compared to 81% prior to March 2020. Still, the estimated jail population was in excess of 8,300 people every day as of September.

“We didn’t hear any testimony from anybody that’s in prison, and if they want their constitutional right to a speedy trial to be given up without their consent. We didn’t hear from that," said Rep. Adrienne Benavidez, D-Adams County, the lone vote against HB1309 in the House Judiciary Committee. She gave an impassioned speech on the House floor on Thursday in favor of defendants' rights.

While the Sixth Amendment guarantees the right to a speedy trial, Colorado law defines "speedy" as the government bringing a criminal defendant to trial within six months of pleading not guilty. The consequence for violating that deadline is dismissal of the criminal charges.

Although the Supreme Court has given judges methods of extending that window when COVID-19 made it difficult or impossible to safely assemble a jury, there were in excess of 14,600 cases awaiting jury trial as of January. Last year, roughly one-third of the normal volume of jury trials actually took place, largely before public health necessities shut down courtrooms in April.

Jon Wandersee, a deputy state public defender, disputed the argument from district attorneys and judges that giving flexibility to try cases beyond the speedy trial deadline would clear up the backlog. He gave the example of credit card debt, where the cardholder spreads payments out over time. Doing so does not wipe away the amount owed, and does not prevent new debt from being accumulated. Wandersee believed the end result, as with the speedy trial extension, would be to kick the can down the road.

"The reality is, defense attorneys are the only parties who can't do a single thing to fix the court backlog," he said. "The DA's are the only ones with authority to offer plea deals, and both them and the courts have the power to dismiss cases. We have no power."

Some criminal defense organizations remain opposed to HB1309, citing concerns about clients who may successfully receive bond under the bill for one criminal case, only to remain in jail on another case. However, the Office of the State Public Defender softened its position at the end of the week, after the sponsors agreed to add safeguards to defendants' rights and lower the length of the speedy trial extension for those in custody.

The public defender "believes it is not good public policy for the legislature to change the speedy trial statute," said Maureen Cain, the office's legislative and policy director. "However, we were asked by certain legislators to work on language changes that might make the bill more acceptable to OSPD. We did work with the sponsor on changes. So the amended bill is more limited in scope, includes better definitions, increased opportunity to be heard, and release from custody for certain persons charged with criminal offenses."

The sponsors of HB1309 argued their bill was narrowly-tailored and temporary, and that it did not infringe on the constitutional rights of the accused. Nevertheless, Benavidez believed prosecutors could do more to resolve cases before resorting to the drastic measure of ordering someone to wait an extra three or six months to be brought to trial, with potential consequences to their personal and professional lives from the criminal charges hanging over their head.

"Your Sixth Amendment right to a speedy trial is an individual right. Is not a right of the courts. It’s not a right of the DAs. It’s not even a right of the defense. It is of the individual," she said.

Rep. Dylan Roberts, D-Avon, who is himself a prosecutor, responded that a bill to take away constitutional rights "would never be something I put my name on."

As one of the Judiciary Committee members who voted to advance the bill, Rep. Jennifer Bacon, D-Denver, said during the second reading debate that she still harbored significant reservations.

"I think that at the end of the day, we have to figure out where is the cost of this going to lie," she said. "And for me, I do want to recognize all of the public defenders, but more importantly the defendants — those who are currently sitting in jail. The decision that we make really determines an outcome for them and so it is a difficult one."

The final vote on Friday was 51-11, with a bipartisan group of six Republicans and five Democrats, including Bacon and Benavidez, voting in opposition. The bill heads to the Senate, where Democratic Sen. Pete Lee and Republican Sen. Bob Gardner, both of Colorado Springs, recently joined as sponsors.

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