(WATCH) The Covid Court Backlog

Across the country a lingering side effect from the Covid shutdowns is a daunting backlog in the American court system. It’s causing headaches and raising constitutional questions. Today we speak with Attorney General of Colorado Phil Weiser about the unprecedented situation. Phil Weiser: Almost every institution, public and private, in March of 2020, it was like a storm came through and closed everything down. The court said, “We’re now closed.”

News Clip (March 18, 2020): The American shutdown perhaps spreading faster than the Coronavirus, today more city centers, small businesses, and rural schools shuttered.

Weiser: The hard part was we didn’t know when they’re going to reopen. So it’s like, we’ll do trials again, starting in June. No, starting in September. No, starting November. And during this time, we had to start figuring out how to adapt to what was a changing and uncertain picture.

Sharyl: And what did you do?

Weiser: The first thing we had to do was think about our speedy trial rule. In Colorado, like most states, there’s a requirement: You’ve got to give defendants a trial within a certain amount of time. And the concern we had, is if you literally could say, “The courts are closed, we can’t give you a trial,” does that mean that every single defendant is going to walk free? We thought that was unreasonable.

By one account there were 14,600 jury trials stacked up and on hold in Colorado due to the shutdowns, five times the number in a typical year.

According to Law.com Bexar County, Texas had 50,000 felony and misdemeanor cases awaiting trial when courts reopened.

In New York City there were nine criminal trials in nine months instead of about 800.

Georgia officials estimate it’ll take three years and cost $60 million dollars to erase the backlog. In many places the reported logjam has at least doubled what it was before the shutdowns.

Sharyl: Did any defendants try to claim they weren’t getting a speedy trial? What kind of challenges have you had?

Weiser: That issue actually got litigated up to the Colorado Supreme court, where there was an argument about whether or not the speedy trial rule demanded either a trial, or dropping charges. My recollection is that we prevailed in our principle, in that we worked closely with district attorney’s offices, with the state judicial branch, because we all had an interest in finding a way to make our system operate during a really challenging time.

Sharyl: So even if it’s legitimate to put off a trial, you’re still faced with a couple of things. One of them is, people, some of them, I guess, waiting in custody for a trial, which isn’t fair. Not that it’s your fault, but it’s still not fair to them.

Weiser: This whole system created a lot of unfairness. Victims were waiting for their loved ones, who might have been harmed or even killed, to be given justice through a criminal process. Defendants who might be in jail because they can’t afford a bail bond, potentially, could be subject to an injustice of being held longer than they should. I’ve recognized all that. What I want to say though, is we in Colorado showed a lot of collaboration and innovation, to adapt to these challenges. For example, we saw more aggressive decisions to use personal recognizance bonds. Let somebody out because we were aware that keeping people in jail during this time was unfair.

Sharyl: Why wasn’t there a decision to try to make some kind of adaptation where trials could be held, pretty much like the rest of the country functioned at some time, by computer, such as Zoom?

Weiser: It’s worth noting, the appellate process pretty quickly snapped back in, using Zoom. So the judicial system did adapt where it felt it could. The trial level, however, posed a challenge. Can you make credibility determinations looking at a screen over Zoom? Whereas that’s something you want to have in person. Do you get to look at the jurors as they react, if you’re a lawyer, or do you have to accept Zoom as a intermediary platform? And I don’t know of any judicial trials in Colorado that happened over Zoom. People will look back and ask, “Maybe we could have, and for next time, maybe we should.” But in that first moment, there was a lot of hesitancy to try to use the trial process over Zoom. By contrast, the appellate process, people pretty quickly said, “We can make this work.”

Sharyl: What do you think is going to happen in the future? Now that states have gone through this challenge, will there be a system put in place, in case something like this happens again?

Weiser: We, as a society, have a lot to learn from what we experienced during this pandemic. And it’s incumbent on us to ask questions. If this happened again, how would we proceed? What are smart and effective ways? I do think, as we learn from best practice, we’re going to have to do differently. As for how hard we push Zoom in the trial process, that’s going to be an important conversation. I’m not sure where that’s going to land.

Sharyl (On-camera): Some defendants and their lawyers are still trying to challenge the notion of putting off a trial for more than a year – saying it violates the legal right to a speedy trial.


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