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Colorado courts face two crises: A crisis of confidence and a COVID case backlog

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Posted at 7:52 PM, Feb 18, 2021
and last updated 2021-02-18 21:52:51-05

DENVER — During his State of the Judiciary address Thursday, Chief Justice Brian Boatright spoke candidly about a series of allegations involving sexual harassment, discrimination and payoffs at the Colorado courts’ highest levels.

Normally, the speech doesn’t garner much media attention. This year, though, after a Denver Post investigation shed light on allegations of wrongdoing, the chief justice used the time to talk to lawmakers about how it’s being handled.

“We are going to get this right. Where there was wrongdoing, we will address it. Where there was an abuse of power, we will stop it. Where our policies are deficient, we will change them,” Boatright said.

The chief justice called for an independent investigation into the alleged misconduct and said he has asked the governor, the attorney general and legislative leaders to form a panel to draft a request proposal to define the scope of the investigation. That process will take 30 days.

Afterward, the panel will choose an independent counsel to conduct the investigation. The members of the panel are expected to be announced this week.

“It’s a great exercise in humility to invite the other two to have oversight and the judiciary and chief justice, to his credit, said we need the executive legislature to really make sure that we’re cleaning up shop, and we’re addressing his issues, and we’re happy to work with them to do that,” Gov. Polis said in an interview with Denver7.

Until the investigation is completed and recommendations are implemented, he has requested to be made aware of any new allegations of misconduct on a weekly basis.

Even before the investigation, Boatright said the court has already started to take steps to clean up its actions.

“While the culture problems were not caused by any specific individual — and I am not blaming anyone — we realized that change was necessary. As a result, since that time, almost the entire SCAO leadership team has been replaced,” he said.

The court has also changes the way it handles administrative responsibilities. In the past, all of those tasks fell on the chief justice.

Now, the administrative work will be divided among the justices. The justices will also start rotating the chief justice position, and Boatright said they have stepped up their efforts to bring more diversity to the bench.

Members of the House and Senate Judiciary Committees commended the chief justice for his candor in the challenges the court is currently facing.

“I have to admit, I was impressed with his acknowledgment of the issues and grateful that he did it because I think in order to restore credibility of the judiciary and confidence with the public, he had to do that,” Sen. John Cooke said.

He first found out about the allegations through the Denver Post reporting and said the entire contract in question needs to be looked through.

Sen. Bob Gardner, meanwhile, said the issues the Judicial Department is now facing are similar to ones other branches and workplaces have faced in the past.

“This is not unlike what we in the legislature dealt with two and three years ago with our own processes,” Gardner said.

He believes the investigation into wrongdoing is one aspect, but the Judicial Department also needs to take a serious look at its internal processes and procedures for reporting complaints.

“You are dealing with public officials who in so many ways don’t report directly to anyone but are responsible to everyone, and that creates a particular challenge,” Gardner said.

Beyond the investigation, lawmakers from the Judiciary Committee say they also want more transparency, which could come in the form of a bill to reform open records laws for the judicial branch.

Along with facing a crisis in confidence at the court’s highest levels, the chief justice spent a considerable time in his speech talking about the impact the COVID-19 pandemic has had on the court system.

“It’s a huge problem that we need to address because, again, I think people lose faith in the system and then the judiciary if cases won’t be heard,” Cooke said.

On average, the state has 2,716 jury trials each year, 2,400 of which are criminal trials. As of Jan. 19, Boatright said the court has 14,635 jury trials scheduled statewide, including 10,000 criminal trials.

Not all of the 14,635 cases are expected to head to trial; most of them are likely to be resolved through plea deals or other methods of resolution.

“When you can’t bring things to trial, you don’t have that sort of forcing factor, I call it. Only 5% or 10% at max of civil and criminal cases actually come to trial in this country,” Gardner said.

Still, the backlog has put a significant strain on the judicial system.

Cooke, who is as former sheriff, checked in with Weld County last week and said within that county alone there are 22 homicide cases that still need to be tried this year, which require weeks for each.

In his address, Boatright said he knows lawmakers are likely upset about the recent allegations, but he asked them to not take it out on the trial courts or probation.

“So I ask you: If you are mad, then be mad at me. Our trial courts need help to provide the access to justice that our citizens need and deserve,” he said.

Boatright asked lawmakers for help in three areas. First, he asked legislators to introduce a bill to revise the senior judge program to allow for more flexibility. This would allow judges who have retired to come back and preside over jury trials in order to lower the backlog.

The chief justice said he has recently retired judges who are willing to return to help out but who do not want to commit to a 60 or 90 day contract. He also asked for more money to expand the program.

The second request Boatright made of lawmakers was for additional staff and magistrates. During the budget cuts last year, the Judicial Department laid off 110 people. They are now asking for money to hire new staff to help with trial courts and probation.

Lastly, the chief justice asked lawmakers for a bill that would allow for some flexibility in the six-month statutory deadline for trials.

Denver7 asked the members of the judiciary if they would feel comfortable allocating more money to a branch that was just accused of misspending it to pay off an employee to silence her.

“On one hand, I don’t feel comfortable doing it, but on the other hand, I think it’s needed, and I think if they are willing to be open and transparent with their books and records and everything that’s going on, then I think we could be a good watchdog over how that money is spent and where it goes,” Cooke said.

Gardner and Roberts also both agreed there needs to be resources provided by the state to help cope with the backlog.

“We can do two things at once; we can respond to the crisis of confidence that exists in our judicial branch in terms of misallocation of funds and workplace harassment, but we also need to focus on the thousands of Coloradans who are waiting for their day in court,” Roberts said.