This is the third in a series of blogs today regarding the interplay between the pandemic and the death penalty. Earlier I wrote about the state of Texas canceling an execution due to the pandemic; a Pennsylvania death row inmate who wants released because he has COVID-19 symptoms; and now the death penalty trial proceeding in Colorado despite a State Supreme Court order suspending
normal state court operations as a precaution against the pandemic, as reported by the
Colorado Independent.
The showdown playing out between Dearing’s public defenders
and Adams County’s 17th Judicial District judges pits the constitutional right
to a speedy trial against the constitutional rights to a public and fair trial.
All this at a time when the state legislature just passed a bill to repeal the
death penalty, which Gov. Jared Polis is expected soon to sign into law.
“From what I’ve read and seen, the 17th Judicial District
and state judicial (branch) have failed in their obligation to ensure a safe
environment for jurors and all involved individuals in order to rush to kill
Mr. Dearing, another man of color facing the death penalty in Colorado,” said
Faisal Salahuddin, a civil rights and criminal defense lawyer in Denver who is
not involved in the case.
Dreion Dearing and his family members (picture included in a
court motion)
“What’s the purpose of all the metal detectors, cameras and
security you have to go through in courthouses if they’re willing to put jurors
at risk like this? I mean, is it all just a show?” he added. “This is unreal.”
District Attorney Dave Young, who is prosecuting Dearing,
has said through his spokeswoman that his office has no response to the
defense’s concerns.
Colorado Supreme Court Chief Justice Nathan Coats issued an
order Monday shutting down most state courts through at least April 3.
He has left the door open for chief state district judges to
allow some proceedings, including those for bail, protection orders, probation
revocation, child protection and parenting time, emergency health proceedings,
and “proceedings necessary to protect the constitutional rights of criminal
defendants.”
Dearing’s case falls into the last category because his
right to a speedy trial expires on March 23, a six-month time frame based on
when he entered his plea.
But his lawyers and District Judge Mark Warner have
disagreed about whether the trial already has started.
Beginning March 9, the judge had potential jurors report to
the courthouse in groups of 250 each morning and afternoon to fill out
questionnaires in the case. In what experts say is an unusual move, Warner
refused to let Dearing and his lawyers sit in on videotaped instructions to
prospective jurors and observe their reactions. The judge then set what he
called a “hearing” Tuesday, also prohibiting Dearing and his lawyers from
attending. (The judge also has barred this reporter from all future proceedings
for taking pictures in his nearly empty courtroom during a recess in violation
of court policy. The pictures included one of dirt from a courtroom bench on a
disinfectant wipe.)
Adams County Deputy Heath Dumm (picture included in a court
motion)
Tuesday morning, 17th Judicial District Chief Judge Emily
Anderson issued an
order saying
that because of the coronavirus outbreak, the courthouse in Adams County will
be closed to the public, operating with reduced staff and “a focus on matters
of immediate concern for public safety.” Anderson — who has not responded to a Colorado
Independent inquiry today — ordered that Dearing’s proceeding, set for 1:30
this afternoon, go forward despite health concerns.
Dearing’s lawyers filed a response this morning objecting to
the court holding any part of the proceedings in a closed courtroom, saying it
violated his rights to a public trial. They argue that his trial started on
March 9, when jurors were first summoned to the courthouse about the case, and
met the speedy trial requirement. Today’s proceeding would not be a hearing,
they say, but rather part of Dearing’s trial.
Judge Warner, in response, issued an order at 10 a.m.
postponing the proceeding until tomorrow, Wednesday.
Jurors are scheduled to appear this Friday, March 20,
for voir dire, the process in which prosecutors and defense lawyers
personally question them for jury selection. They are expected to be asked
about their views of the death penalty, their willingness to avoid publicity
about the case, and factors that would make jury duty a hardship.
A “hardship,” defense experts tell The Independent,
would include health concerns about having to sit through what likely will be a
months-long trial during a time of pandemic, social distancing, and,
potentially, quarantine.
Judge Warner said at a hearing on Friday that his staff has
taken precautions by measuring off seats six feet apart from each other so
potential jurors may undergo questioning at a safe distance from each other.
Six jurors will be called in each morning, then six in the afternoon each day
until lawyers agree on a pool of 125. From there, lawyers will whittle down
that pool to a panel expected to consist of 12 jurors and six alternates.
One of Dearing’s defense lawyers, Joe Archambault, chief
deputy state public defender, asked Warner on Friday to ensure that all
potential jurors be tested and deemed COVID-19 free before reporting back for
jury duty. The judge — who has promised his staff would use paper towels and
disinfectant in jury spaces — denied that request.
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