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  • Rob Werking

STATUTORY SPEEDY TRIAL IN THE AGE OF COVID

In May of 2020, our Supreme Court recognized that it does not have the authority to rewrite a statute with mandatory language; that power rests with the General Assembly – not the judiciary. Griswold v. Ferrigno Warren, 462 P.3d 1081 (Colo. 2020).


Although C.R.S. § 13-2-109 authorizes the Colorado Supreme Court to prescribe, from time to time, rules of pleading, practice, and procedure with respect to all proceedings in all criminal cases in all courts of the state of Colorado, it does not permit it to set forth rules which contradict mandatory statutory provisions enacted by the General Assembly. Id.


Even in a pandemic, the Constitution cannot be put away and forgotten. Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 6948354 (2020) (per curiam). “[We should not] cut[] the Constitution loose during the pandemic.” … “we may not shelter in place when the Constitution is under attack. Things never go well when we do.”. (Gorsuch, J. concurring).


The speedy trial statute was intended to complement and render constitutional speedy trial guarantees more effective. People v. Gallegos, 946 P.2d 946, 949 (Colo. 1997).


“The [speedy trial] statute ‘must be construed and applied... so that [the accused’s] rights thereunder will be fully preserved and [the application will] not result in the miscarriage of justice.’ Henwood v. People, 143 P. 373 (Colo. 1914)


If a defendant is not brought to trial on within six months from the date of the entry of a plea of not guilty, […] the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode. C.R.S. 18-1-405(1) (emphasis added); R. Crim. P. 48(b)(1).


The provisions of the speedy trial statute are mandatory and leave no discretion for a court to fashion exceptions apart from those set forth in the statute. Further, the burden of compliance with the provisions of the statute rests with the prosecutor and the trial court – not the accused. People v. Rosidivito, 940 P.2d 1038 (Colo. App. 1996); see also, Watson v. People, 700 P.2d 544 (Colo. 1985).


It is essential that an early determination of guilty be made, so that the innocent may be exonerated and the guilty punished, and a defendant does not give up his right to a speedy trial by having posted bond and being released from custody. Jaramillo v. Dist. Court of Rio Grande, 484 P.2d 1219 (Colo. 1971).


Colorado law permits the prosecution to ask for and be granted a continuance of no more than six months without the consent of the defendant if: 1) the continuance is granted because of the unavailability of material evidence 2) when the prosecution has exercised due diligence to obtain such evidence and 3) where there are reasonable grounds to believe this evidence will be available at a later date. C.R.S. 18-1-405(6)(g)(I) (emphasis added).


Our Supreme Court recently held that the prosecution may be granted a continuance under C.R.S. 18-1-405(6)(g)(I) if the unavailability of the government’s material evidence is due to a public health crisis. People v. Lucy, 467 P.3d 332 (Colo. 2020).


In allowing a continuance requested by the prosecution under C.R.S. 18-1-405(6)(g)(I), the trial court must ensure that there is an adequate record that includes a final ruling supported by findings. Id.


Under the Colorado Supreme Court’s recent modification to R. Crim. P. 24, Subsection (c)(4) allows a trial court to declare a mistrial if, due to a public health crisis, a fair jury pool cannot be safely assembled. R. Crim. P. 24(c)(4)


Only the actual “period of delay caused by any mistrial” is excluded from the six-month speedy trial period. The amount of delay must be “reasonable.” People v. Pipkin, 655 P.2d 1360, 1362 (Colo. 1982). Such an extension via mistrial may not exceed three months. C.R.S. § 18-1-405(6)(e).


A court proceeds without jurisdiction if it tries a criminal defendant in violation of Colorado’s speedy trial statute. Hampton v. District Court, 605 P.2d 54 (Colo. 1980).


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