David H. Yun swearing in

Judge David H. Yun speaks on June 30, 2022 after his formal swearing-in to the Colorado Court of Appeals, with Chief Judge Gilbert M. Román at right.

An El Paso County judge failed to follow the law when she preemptively dismissed a low-level drug case during the COVID-19 pandemic, the state's Court of Appeals has determined.

Although former District Court Judge Deborah J. Grohs was convinced the ongoing public health emergency and ensuing backlog of jury trials meant defendant Marckus Antonio Maxwell would not be brought to trial within the legal deadline, a three-judge appellate panel nonetheless found Grohs had no authority to decide on her own to throw out the case.

"Thus, a court must wait for the speedy trial clock to run before dismissing a defendant’s charges," wrote Judge David H. Yun in the panel's Aug. 18 opinion.

The Sixth Amendment guarantees criminal defendants the right to a speedy trial, but Colorado law is more specific. A defendant who pleads not guilty must be brought to trial within six months. If not, the consequence is dismissal of the charges and a prohibition on being charged again for the offense.

Prosecutors charged Maxwell with possessing drugs and drug paraphernalia. He pleaded not guilty on March 5, 2020, shortly before Colorado and the judicial branch implemented public health restrictions to combat the spread of COVID-19. The Colorado Supreme Court quickly modified its rules and allowed trial judges to declare a mistrial if a jury pool could not be assembled safely amid the pandemic.

On July 16, Maxwell waived his right to a speedy trial and reset the six-month window, such that his new deadline to be brought to trial was Jan. 16, 2021. Grohs scheduled the trial for mid-October.

However, when October arrived, Grohs still could not conduct a jury trial due to the pandemic. She rescheduled the trial for Dec. 7, but once more the courthouse was closed on that date. Instead, Grohs declared a mistrial, which temporarily paused the speedy-trial clock.

The prosecution and defense appeared on Jan. 21 for a conference before the trial, which was now planned for Jan. 25, 2021. Grohs confirmed the trial would again not proceed, but then she cast doubt on the ability to bring Maxwell to trial by early March, when the new speedy trial deadline fell because of the mistrial.

"We have received word that we’re going to resume jury trials the week of Feb. 22," she said. But "the chief judge will be selecting which trial is going to go forward on those particular days, again based on a list of criteria — age of case, seriousness of the case, is there a victim of the crime, is the defendant in custody and things of that nature."

Grohs explained she had many cases scheduled for trial between Feb. 22 and Maxwell's speedy trial deadline, including cases that had been pending longer or were more serious than his.

"It seems highly unlikely to the court that the chief judge is going to pick a (drug case) to go to trial," she told the parties, adding that she had already declared one mistrial. "The court does not feel that it’s prudent to continue to go forward ... and so the court at this time is going to dismiss the case."

The 4th Judicial District Attorney's Office appealed, arguing state law places the responsibility on the defendant to request dismissal for a speedy trial violation. Further, a preemptive dismissal before the actual speedy trial deadline was improper, prosecutors added.

"Multiple reasons such as witness availability, plea resolutions and even the effects of the COVID-19 pandemic could have led to higher priority cases being continued or resolved and leaving room on the docket for Defendant’s case to proceed," wrote Deputy District Attorney Tanya A. Karimi. "There is no support in the speedy trial statute for a district court to speculate on the likelihood a case will go to trial and use that speculation as support for dismissing a case."

The public defender's office, on behalf of Maxwell, countered that trial judges have the authority to manage their dockets, allegedly including the discretion to dismiss a case when it appears that fulfilling the speedy trial deadline is impossible.

The Court of Appeals panel reviewing the case agreed Colorado's speedy trial law does not allow for dismissals based on an anticipated violation of the deadline, nor was Grohs permitted to unilaterally make the decision without a motion from the defense.

Grohs also misunderstood the mistrial rule, believing she could only grant one mistrial in the case.

"The rule’s plain language does not limit the number of mistrials that a district court can declare," Yun clarified.

The panel ordered the reinstatement of Maxwell's criminal charges.

The case is People v. Maxwell.

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