Public Health Crises and Consitutional Rights of Criminal Defendants in Colorado
The Covid-19 Pandemic has affected every part of our lives in ways that are still difficult to understand. One area in which the changes have been profound is in the criminal courts where issues of the public health crisis have changed court practice, rules, statutes, while having an inestimable impact on constitutional and statutory rights of the criminally accused. This article will cover the developments and issues in criminal law going forward as we enter the age of public health crises and the criminal justice system in Colorado.
Origins - the Pandemic
After declaring a state of emergency in Colorado on March 11, 2020, Governor Polis issued a statewide stay at home order on March 25, 2020. Executive Order D2020-016. On or about March 13, 2020, President Donald J. Trump declared a National State of Emergency as the COVID-19 Pandemic began its sweep through the United States. The scope of the Pandemic was profound: According to statistic compiled by the National Chamber of Commerce on February 9, 2021, 24% of small business have temporarily closed due the COVID 19 Pandemic. It was estimated by the National Chamber that by February 23, 2021, the number of small business closures would reach 54% of all small businesses.
The Colorado Supreme Court Acts Quickly to Protect Jurors from Unsafe and Illegal Congregation
On April 7, 2020, the Colorado Supreme Court, acting in response to the state of emergency and the public health crisis, amended Criminal Procedure Rule 24 to read: “At any time before trial, upon motion by a party or on is own motion, the court may declare a mistrial in a case on the ground that a fair jury pool may not be assembled in that particular case due to a public health crisis or limitations brought about by such crisis. A declaration of a mistrial under this paragraph must be supported by specific findings.” Colo. Crim. P. rule 24(c)(4).
The Public Health Crisis Directly Interferes With a Defendant’s Right to a Speedy Trial
Immediately, defendants throughout the state found their speedy trial rights compromised, because jury pools could not be assembled. With the public health orders in place, Colorado courts were not equipped to impanel jurors safely nor did they have enough room to adhere to the distancing requirements. During the pandemic, defendants’ trials were delayed sometimes up to two years due to pragmatic and legal consideration of executive orders relating to safety public safety in times of the public health crisis and stat of emergency.
Speedy Trial Review
Some review of a defendant’s right to a speedy trial is warranted to provide the necessary backdrop for understanding the impact a public health crisis has upon the right.
In Colorado, a defendant enjoys both a statutory right a speedy trial and a constitutional right. As with most rights, the statutory and constitutional rights may be waived by the defendant. The statute, C.R.S. §18-1-405, was enacted to implement the constitutional right to a speedy trial. However, the analysis whether the Speedy Trial Statute was violated is different than the constitutional right. The probable reason for this distinction is that the constitutional right does not dictate a specific time period while the statute creates a six-month limitation of time from when the defendant enters a not guilty plea. Other specific time limitations of three months exist based upon the posture of the case-such as the period after a mistrial, severance of the defendant from others, unavailability of the defendant, an interlocutory appeal, or by reason of the defendant’s illness, disability, or pendency of examinations or observations of a defendant’s mental condition. Both Criminal Procedure Rule 48(b)(1) and C.R.S. §18-1-405 require dismissal of the case without consideration of the prejudice to the defendant if the time limitations are violated and not tolled in some manner according to the terms of the statute and rule. Importantly, the defendant has the burden of proving that he was denied his constitutional right to a speedy trial. Yet in the final analysis, the burden of insuring compliance with the speedy trial statute’s time compliance is on the prosecution and the trial court, the only affirmative action required of the defendant is to move for dismissal prior to trial.
The constitutional analysis is different. The U.S. constitutional right to a speedy trial is "fundamental" and is imposed by the Due Process Clause of the Fourteenth Amendment on the States. The constitutional right attaches with the filing of a formal charge or a defendant’s arrest. Violation of the constitutional right is determined by an ad hoc balancing test of four factors. “A defendant has no duty to bring himself to trial, the State has that duty as well as the duty of insuring that the trial is consistent with due process.” Yet, “the defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” In Barker v. Wingo, the Supreme Court emphasized that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Based upon the ad hoc balancing test, which considers public interest, only in the rare case will a violation of a constitutional right to a speedy trial be violated by a true state of public emergency or health crisis.
The Colorado Supreme Court Clarifies the Statutory Right to a Speedy Trial Still Exists in a Public Health Crisis
Justice Carlos Samour wrote in People v. Lucy, “[e]ven during the Pandemic, trial courts are required to comply with the speedy trial statute, C.R.S. §18-1-405.” In Lucy, the Court was called upon to determine whether a prosecution request for a continuance of the trial based upon its inability to obtain evidence material to its case. In answering the question affirmatively, the Court held absent the defendant's consent, section 18-1-405(6)(g)(I), C.R.S. (2019), authorizes a trial court to grant the prosecution a continuance with a tolling of the speedy trial period for up to six months if the prosecution establishes that: (a) as a result of a public health crisis, evidence material to its case is unavailable; (b) it has exercised due diligence to obtain that evidence; and (c) there are reasonable grounds to believe that the unavailable evidence will be available on the new trial date. Following Lucy, the Supreme Court expounded on its holding in People v. Nunez, stating, “the language of the speedy trial statute is mandatory—it leaves no discretion for the trial court to make exceptions to the six-month rule beyond those specifically enumerated in section 18-1-405(6). Nunez importantly clarified that a court may not declare a mistrial under Crim. P. 24 after the six month period has run and make the order retroactive to some date within the six month period. In People v. Sherwood, the Court cited the Speedy Trial statue and reiterated that after a mistrial declaration the period for a new trial is three months.
On June 21, 2021, legislative efforts to amend the Colorado Speedy Trial statute became effective. The law was amended to add the following section as follows:
C.R.S. §18-1-405(j)(I)-- Upon a motion by the court sua sponte, a period of delay for any continuance due to the backlog of jury trials directly resulting from a restriction, procedure, or protocol implemented during the 2020 and 2021 health emergency related to the COVID-19 pandemic, not to exceed six months if the defendant is not in custody for the case pending a jury trial or not to exceed three months if the defendant is in custody for the case pending a jury trial. The backlog of jury trials resulting from the COVID-19 pandemic does not include any consistent and ongoing jury trial backlog that existed prior to March 1, 2020. The court may grant only one continuance pursuant to this subsection (6)(j) if it makes the following specific findings on the record after the prosecution and defendant have had the opportunity to be heard:
(A) The case is a part of a court backlog of jury trials directly resulting from a restriction, procedure, or protocol implemented during the 2020 and 2021 health emergency related to the COVID-19 pandemic, and the court has determined, based on available evidence, that a continuance is not attributable to any consistent and ongoing jury trial backlog that existed prior to March 1, 2020;
(B) No court in the county with jurisdiction to try the case is available, and the court has exhausted all reasonable means to bring the case to trial;
(C) The court has not previously granted a continuance pursuant to this subsection (6)(j); and
(D) Granting the continuance serves the interest of justice. When determining whether the continuance serves the interest of justice, the court shall make specific findings regarding the impact of a continuance on the prosecution and the defendant.
(II) In considering whether to grant a continuance pursuant to this subsection (6)(j), the court shall prioritize cases to proceed to trial that:
(A) Were declared a mistrial pursuant to rule 24 (c)(4) of the Colorado rules of criminal procedure;
(B) The defendant is in custody in the case and does not waive speedy trial; or
(C) Include a charge of a crime listed in section 24-4.1-302 (1) to ensure a victim’s right to a swift and fair resolution of the case pursuant to section 24-4.1-302.5 (1)(o).
(III) Prior to granting a continuance pursuant to this subsection (6)(j), the court shall inform the prosecuting attorney, and the prosecuting attorney shall notify and receive input from the victim, as defined in section 24-4.1-302 (5), to give to the court before the court makes a final determination concerning a continuance. A victim has the right to be heard at a court proceeding concerning a continuance pursuant to this subsection (6)(j).
(IV) If a court grants a continuance pursuant to this subsection (6)(j) and the defendant is in custody for the case pending a jury trial because the defendant is unable to satisfy the monetary conditions of bond for release despite being eligible for release, the court shall reconsider the monetary conditions of bond for release pursuant to section 16-4-107.5.
Moving forward, the basic concern about the amendments to the speedy trial statute is that the legislature specifically ties the permissible continuances to the 2020/2021 covid-19 pandemic only. Since statutes are construed according to their plain meaning, it remains to be seen whether the statute’s new subsection 6(j) can be applied to future public emergencies and public health crises. This author anticipates that the legislative authority for extending or tolling statutory speed trial rights in a public health crisis will be limited to the 2020-2021 Covid-19 pandemic. While this seems to limit the statute to retrospective application, practitioners should be mindful that Crim. P. 24(c)(4)(governing the ability to safely impanel a jury), will survive for future public health crises.
Right of Confrontation
The Sixth Amendment of the United States’ Constitution and Article II, §16 of the Colorado Constitution guarantee an accused’s right of confrontation. The framers expressed a preference for “face to face” confrontation. Time-honored jurists such as Judge Learned Hand believed that a true assessment of the witness's demeanor should not be limited to words and phrases but should include "consideration [of] the whole nexus of sense impressions." United States’ Supreme court Justice has echoed the importance of judging a witness’ demeanor to make credibility determinations in Anderson v. Bessemer City, the Supreme Court acknowledged the importance of the finder of fact viewing the demeanor of a witness to determine credibility.
In Maryland v. Craig, the Supreme Court clarified that a defendant’s right to confrontation does not mean face to face confrontation when the right must give way to considerations of public policy and the necessities of the case. In Craig, the high Court found it permissible to allow child sexual assault victims to testify by closed circuit television. The Colorado Supreme Court has adopted this reasoning in People v. Hernandez, 488 P.3d 1055, 1061 (2021). Noting that it has never extended the confrontation right to pre-trial hearings, the Colorado Supreme Court in Hernandez permitted witnesses to testify by interactive audio-visual device in a pre-trial hearing to determine the applicability of the “make my day” law.
Distilling these authorities, courts will likely permit witnesses to appear remotely in pre-trial hearings in times of public crises; however, counsel should be diligent to object to this accommodation in trial settings where the right of confrontation is recognized as more critical. It is important for the trier of fact to make credibility determinations based upon the whole demeanor of the witness, not just his face on a screen. It is similarly important for the defendant to be able to see the witness in person as well as for that witness to testify in the defendant’s presence. With the continuing increase in use of remote means for testimony, an accused’s confrontation rights bear great risk of further erosion.
Our institutions are changing with unfamiliar speed. The court system especially has had to improvise and adapt. We must anticipate that public health crises and emergencies will become more frequent in the future. Given the necessity for government institutions to adapt to preserve the common good, one can expect that an accused’s constitutional rights will often lose the battle when the public interest is weighed against a defendant’s constitutional rights. Practitioners should be prepared for this certainty by familiarizing themselves with arguments that highlight the prejudice a defendant may suffer; whether the delay of trial causes a loss of witnesses, evidence, and memory or where a judge or jury is called upon to judge credibility by a witness appearing on a television monitor. A defendant’s rights are grounded in long standing constitutional and common law principles that are necessary to make trials a search for truth, and not a perfunctory exercise in which truth is compromised by the social demands of the day.
 “Seemingly overnight, we f[ou]nd ourselves living in an almost unrecognizable new world—one even Nostradamus couldn't have foreseen. The COVID-19 pandemic has turned our lives upside down and made it virtually impossible to hold jury trials in criminal cases.” People v. Lucy, 467 P.3d 332, 339 (Colo. 2020).
 The constitutional right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by article II, section 16 of the Colorado Constitution. See, e.g., People v. Nelson, 360 P.3d 175, 180-81 (Colo. App. 2014).
 Keller v. People, 153 Colo. 590, 387 P.2d 421 (1963).
 People v. Deason, 670 P.2d 792, 796 (Colo. 1983).
 C.R.S. §18-1-405(1); see also, Crim. P. 48(b)(1).
 C.R.S. §18-1-405(6)(a)-(f).
 People v. Small, 631 P.2d 148, 154 (Colo. 1981); Glaser, 250 P.3d at 635.
 People v. Abeyta, 195 Colo. 338, 578 P.2d 645, 646 (1978).
 Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184 (1972)
 People v. Glaser, 250 P.3d 632, 635 (Colo. App. 2010) (citing United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)), and People v. Chavez, 779 P.2d 375, 376 (Colo. 1989)).
 1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Chavez, 779 P.2d at 376.
 Barker v. Wingo, 407 U.S. 514, 527, 92 S. Ct. 2182, 2190 (1972).
 Barker v. Wingo, 407 U.S. 514, 531-32, 92 S. Ct. 2182, 2192-93 (1972).
 People v. Lucy, 467 P.3d 332, 336-37 (Colo. 2020).
 Id. at 334.
 People v. Nunez, 486 P.3d 1149, 1151 (Colo. 2021).
 Id. (citing People v. DeGreat, 461 P.3d 11, 15; People v. Gallegos, 946 P.2d 946, 949 (Colo. 1997); People v. Byrne, 762 P.2d 674, 676 (Colo. 1988)).
 People v. Nunez, 486 P.3d 1149, 1153-54 (Colo. 2021).
 People v. Sherwood, 489 P.3d 1233, 1236 (Colo. 2021).
 Cowen v. People, 431 P.3d 215, 218 (Colo. 2018).
 Maryland v. Craig, 497 U.S. 836, 846 (1990).
 Id. at 849.
 Dyer v. MacDougall, 201 F.2d 265, 268-269 (2nd Cir. 1952).
 470 U.S. 564 (1985).
 Id. at 575.
 This point becomes more salient when witnesses are infected and cannot attend court for medical reasons in which it is possible that a court may find that the Americans with Disabilities Act requires that their testimony be remotely held. According to the United States Department of Health and Human Services published Guidance, short term covid is not a disability but long term covid is. Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557