Colorado Supreme Court: Courts Can’t Avoid Speedy Trial Deadlines through Retroactive Mistrials

Ralph L. Carr Colorado Judicial Center
The Colorado Supreme Court on Sept. 13 concluded that long-term video surveillance of a suspect’s yard constituted a warrantless search under the Fourth Amendment.

At least one defendant will have charges dismissed due to COVID-19 delays following a state Supreme Court decision.

The Colorado Supreme Court on Monday held that courts may not declare retroactive mistrials in order to get around the deadlines set by the state’s speedy trial laws. The decision resulted in the dismissal of charges against a defendant, Alexander Nunez, who challenged an Arapahoe County judge’s decision to retroactively declare a mistrial after the pandemic made it impossible to hold a jury trial last spring.

 Colorado’s speedy trial statute requires a criminal defendant to be brought to trial within six months of entering a “not guilty” plea, after which charges may be dismissed. The statute spells out a few exceptions to the six-month requirement. For example, the deadline can be extended if a mistrial is declared, a defendant is unable to appear in court or prosecutors are unable to obtain necessary evidence or prepare despite due diligence.

Nunez, who pleaded not guilty to drug-related charges in 2019, had a trial scheduled for May 4, 2020, and a speedy trial deadline of June 12, 2020.  However, due to the COVID-19 pandemic, trials in the 18th Judicial District were halted starting in late March. In April, the Colorado Supreme Court amended the Rules of Criminal Procedure to allow a court to declare a mistrial if a public health emergency prevented a jury from being assembled.

The prosecution moved for a continuance during an April 30, 2020, pretrial readiness conference. The court didn’t rule on the motion but rescheduled the trial for June 1.

At a pretrial conference on May 28, the prosecution moved for a mistrial based on the public health crisis. But attorneys for Nunez, who wasn’t at the hearing because the sheriff’s office was not transporting defendants to court due to the pandemic, said the defendant was not willing to waive his right to a speedy trial. The court didn’t rule on the motion for a mistrial, citing reluctance to act without Nunez present, and scheduled another hearing for June 19.

Nunez on June 15 filed a motion to dismiss the charges against him, arguing his speedy trial deadline had passed. In late July, the court denied Nunez’s motion, noting that “the April 30th pretrial readiness conference would have been the date by which the Court would have declared a mistrial.” The speedy trial statute allows a three-month exclusion from the speedy trial calculation if a mistrial is declared. This “retroactive” mistrial declaration brought the new trial deadline to July 30, the lower court said, and it then declared a second mistrial due to its continued inability to assemble a jury. Nunez appealed the case directly to the Supreme Court.

On appeal, the prosecution argued the speedy trial deadline could have been delayed under exceptions to the speedy trial statute. The court could have declared a mistrial, according to the prosecution, and the court effectively did declare a mistrial at the April 30 hearing.

But the Supreme Court, in a unanimous opinion penned by Justice Melissa Hart, said a court cannot “effectively” declare a mistrial but “must explicitly do so.” And while “it seems entirely possible that the court could have declared a mistrial” at the hearing, Hart wrote, the facts show it did not. The high court also opted not to deal with arguments that because the defendant was unable to attend hearings and the prosecution could not obtain necessary evidence, a speedy trial exception should apply. The court’s opinion sidestepped both arguments, noting that either of these might have provided a reason to extend the speedy trial deadline, but the former was never argued before the district court and the lower court never ruled on the April 30 continuance motion dealing with the latter.

Tristan Gorman, policy coordinator with the Colorado Criminal Defense Bar, said the decision will likely “apply to an incredibly narrow swath of cases,” but by concluding judges cannot retroactively declare a mistrial, the Colorado Supreme Court is “recognizing how important that right” to a speedy trial is. “That it is a right afforded to someone who is still presumed innocent and has not yet been convicted,” Gorman said. “And it’s simply overreach for the government to try to get around the mandatory deadlines that are set in that statutory right.”

Gorman noted that Hart’s opinion didn’t discuss Nunez’s defense counsel’s actions. “The analysis in the opinion all seems to be about what the government, the district attorney and the trial judge did and said, or did not do and say,” Gorman said. “So I think this is really a case where the issues are all framed by government action, whether it be the trial court or the prosecution.”

“This decision emphasizes the importance of the legislature creating a clear statutory change to deal with the backlog of cases created by COVID-19,” said Tim Lane, legislative liaison and policy analyst for the Colorado District Attorneys’ Council.CDAC supports the need to give courts flexibility in handling these delays so that victims, defendants and the community do not suffer undue delays as a result of this unprecedented situation.”

State lawmakers earlier this month introduced a bill that would permit courts to extend the trial deadline as a result of delays caused by the pandemic. HB21-1309 would allow courts to exclude from the trial deadline calculation a period of delay of up to six months resulting from the backlog of jury trials caused by COVID-19. The bill has been assigned to the House Judiciary Committee and its first committee hearing was scheduled for today Tuesday.

Gorman said the CCDB “strongly opposes the bill,” noting that prosecutors have already had a lot of discretion to prevent a trial backlog during the pandemic by prioritizing cases, dismissing cases and offering favorable plea bargains to resolve cases without trial. “And now the courts are starting to open up again and trials are able to be held and juries are safely able to be gathered. They’re trying to infringe on the statutory right of the accused to a speedy trial.”

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