To go to court in Colorado these days, you might need to drive to the courthouse, park, pass through security — belts and watches off, please — don a mask (or maybe not) and put your seat in a seat. Or you might just curl up on your couch, power up a laptop and log in to a video chat for virtual court.
It all depends on which judge is hearing your case and what exactly you need to get done.
Colorado’s initially ubiquitous use of virtual courts during the pandemic has faded into a patchwork of judge-by-judge decisions about when proceedings go forward in-person or online, even as many in the justice system call for some virtual options to be preserved post-COVID.
The mishmash of procedures across the state follows the court system’s radical transformation since the pandemic began in March 2020, with the public health crisis forcing an unprecedented shift toward remote hearings and virtual appearances — leading to increased transparency and participation in the court system, along with some new difficulties.
The Colorado Supreme Court has yet to put out any detailed statewide guidance for how virtual courts should be used long-term, but Chief Justice Brian Boatright recently formed a working group of eight chief judges to examine how online courts work (and when they don’t) as a precursor to potential long-term strategies, said Weld County Chief Judge James Hartmann, who co-chairs the chief judge’s council.
“In what types of proceedings is Webex working well, and where are court users experiencing challenges?” he said of the Colorado court system’s online video platform. “Once we get that information in place, then we can take the next view as to, where do we go from here as far as long-term planning.”
The committee, which includes chief judges from rural and urban judicial districts, will ask for input from attorneys, court staff and other stakeholders in the justice system before presenting their findings to Boatright, Hartmann said. He estimated that process may take 30 to 60 days.
“We want to be able to use Webex when Webex is an effective way of conducting court proceedings,” Hartmann said. “We certainly don’t want to trade convenience for someone’s due process rights. But that balance will be there — we definitely can strike the balance, we just don’t know where the needle is going to fall yet.”
Earlier this year, Boatright gave chief judges the authority to make policies on virtual appearances for each of Colorado’s 22 judicial districts, continuing the court system’s pandemic-long approach of letting local jurisdictions make their own rules within a broad framework. A Denver Post review of those policies shows many chief judges further delegated decision-making to individual judges.
Whether a court hearing is held online or in-person is left up to each judge’s discretion in eight judicial districts, with two of those districts encouraging online appearances and three emphasizing in-person proceedings, the review found.
“We don’t have a set protocol, we just play it by ear,” said Joanne Montero, clerk of the courts in the 3rd Judicial District, which covers Huerfano and Las Animas counties. “We recently had an outbreak of COVID in the jail, so we moved cases to Webex for that reason.”
Another six judicial districts are operating fully online or with a presumption that hearings will occur remotely. Three districts are the opposite of that — hearings are presumed to proceed in person unless there’s an exception — and in two districts, chief judges have issued specific policies on how and when virtual courts should be used. Three districts have no policies posted online and did not return requests for comment from The Post.
“I think we would all like a little bit more guidance from chief judges and statewide,” Denver Assistant District Attorney Zach McCabe said. “It’s just easier for everyone to operate if we all know the rules.”
Wider shift to virtual court
The massive shift from in-person courts to virtual courts during the pandemic happened nationwide, said David Slayton, vice president of court consulting services at the National Center for State Courts.
“We found we really could do any type of proceeding in any type of case remotely,” he said. “I’m not making an argument that it’s always the best way, but it can be done, and we did it.”
Colorado’s courts went from spending about $61,000 on 250 licenses for Webex in the 2020 financial year to spending $338,000 on 4,000 licenses in the 2022 financial year, according to data provided by the judicial branch.
“The most surprising thing we learned is we saw an increased level of access to justice,” Slayton said.
When courts moved online in Arizona, eviction cases in one county shifted from seeing a 40% no-show rate — 40% of people were evicted without ever being heard in court — to a 13% no-show rate, according to a 90-page reportsubmitted to the Arizona Supreme Court in June. Across the country, virtual jury calls have seen a 60% to 90% response rate, when in-person jury calls typically peak around 40%, Slayton said.
“It shows there are barriers to access to justice that exist outside the pandemic, like transportation, child care, the ability to get off work,” Slayton said.
Anecdotally, Colorado saw a similar increase in participation with virtual courts, particularly when links to online courtrooms were easily available to defendants, those in the justice system told The Post, though they had not reviewed hard data.
During the height of the pandemic in Mesa County, defendants in misdemeanor and traffic cases received a reminder text on the morning of their court date that included a link to the correct virtual courtroom, said Steve Chin, manager of criminal justice services.
“So they could just click that link,” he said.
State courts in Alaska, Massachusetts, Florida, Idaho, Indiana and Iowa have all issued some statewide rules on what proceedings can and can’t be done virtually, according to the National Center for State Courts. In the summer of 2020, the Conference of Chief Justices and Conference of State Court Administrators, which represent state courts in all 50 states, declared that courts should adopt “remote-first or remote-friendly” approaches.
“We can’t turn our back on all the advances we saw during the pandemic,” Slayton said.
Many in Colorado’s justice system would like to see some sort of hybrid virtual-and-in-person future for courts.
“Particularly for short appearances, it makes a ton of sense to continue allowing virtual appearances,” said Boulder County District Attorney Michael Dougherty. “It would save time and money to allow individuals the option to appear virtually.”
“It is a huge time and cost saver for many types of proceedings — short hearings, status conferences, trial readiness conferences — it works extremely well for those types of proceedings,” said Hartmann, the Weld County chief judge.
Still, virtual courts can make it difficult for attorneys to speak privately with their clients, and it all but ends the informal hallway negotiations between prosecutors and defense attorneys that are key to resolving many low-level cases, transforming what might be a five-minute conversation into long email exchanges or back-and-forth phone calls.
“The attorney-client relationship gets a little abbreviated, and diminished when you’re not able to stand next to your client in the courtroom and be there and be the client’s voice,” said Maureen Cain, director of legislative policy and external communications at the Colorado State Public Defender’s Office.
She added that public defenders also need their clients to fill out and sign paperwork, which can be difficult when they’re not in the same room, particularly if the clients don’t have a stable living situation and mailing address.
Prosecutors alsohave seen cases stretch on for longer during the pandemic, Dougherty and McCabe said, in part because defendants didn’t face hard deadlines to enter plea agreements when jury trials stalled due to COVID-19 restrictions, and in part because of virtual appearances.
“People are less likely to trust a defense attorney they’ve never met in person and less inclined to plead guilty from their living room couch,” Dougherty said.
Greater public transparency
But accessing the justice system from one’s own home isn’t limited to defendants. Members of the public and victims of crime can also tune in from afar, greatly increasing the court’s transparency, said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
“It’s made it easier for the public to watch the criminal justice system in progress, and I think that has been a good thing,” Roberts said. “It’s also made it easier for reporters to cover the process in certain cases.”
Additionally, some victims prefer to watch proceedings from home, prosecutors said, rather than sitting feet away from the person accused of killing their loved one or traveling a long way for a short hearing.
Currently, online streaming of in-person proceedings purely for public access is unpredictable across Colorado’s courtrooms.
In September, the judge in the high-profile Letecia Stauch murder case in El Paso County allowed only pre-approved family members of victim Gannon Stauch to watch a key hearing online — everyone else had to show up in person.
A La Plata county sentencing hearing for Mark Redwine, convicted of murdering his son Dylan, scheduled for Friday was open online for anyone to watch and even rebroadcast, but for the preliminary hearing in the Barry Morphew murder case in Chaffee County, virtual viewing of the courtroom was barred altogether.
In the Morphew case, Chief Judge Patrick Murphy cited “enormous public interest” as a reason not to stream the hearing online. He noted that more than 1,100 people tuned in to watch a prior broadcast of a hearing in the case, and that some viewers carried on an “inappropriate” conversation using the streaming service’s chat feature.
“Broadcasting the proceedings via Webex would very likely result in thousands of people viewing the hearing,” he wrote in an August order. “This would seem to thwart the purpose of limiting expanded media coverage in criminal cases. Those purposes include not interfering with the rights of the parties to a fair trial, not detracting from the decorum and dignity of the court and not creating adverse effects that would be greater than those caused by traditional media coverage.”
Public access to the Morphew hearing was limited to 24 people, with proceedings streamed to a mostly empty overflow room across town in Salida.
Best practices for using Webex for public access needs further study, Hartmann said, noting that it’s difficult to enforce courtrooms’ typical bans on photography and recording when the proceedings are streamed online.
McCabe said prosecutors in the Denver District Attorney’s Office are split on the issue of online streaming. Some are against it, he said, because of how much it broadens who can easily and anonymously tune in.
“Others, I think will agree with the idea that we have public courtrooms, so anyone can come down and watch if they want to, and that this,” he said of streaming, “is now a 21st-century version of a public courtroom.”
