Colorado attorneys argue jury selection amid pandemic putting people at ‘needless and severe risk’

Every morning and afternoon, groups of 250 people are reporting to the Adams County Justice Center to complete jury questionnaires in a death penalty case

Attorneys in a Colorado death penalty case have filed a motion for the court to protect prospective jurors from coronavirus. (Photo by Getty Images)
Attorneys in a Colorado death penalty case have filed a motion for the court to protect prospective jurors from coronavirus. (Photo by Getty Images)

Lawyers for a Colorado death penalty defendant say the court is subjecting scores of prospective jurors “to needless and severe risk” of contracting the coronavirus. 

Jury selection began this week for the trial of Dreion Dearing, who is accused of killing Adams County Deputy Heath Gumm in January 2018. 

About 8,000 Adams and Broomfield county residents have been summoned for jury service. Every morning and every afternoon, groups of 250 people are reporting to the Adams County Justice Center to complete jury questionnaires.

As Dearing’s defense lawyers tell it, three or more prospective jurors are being crowded around tables that, along with the pens the court has provided, appear not to have been sanitized between morning and afternoon sessions. They say jurors – many of them over 60 – have not been instructed on current state health protocols or given protective masks, and that the court has made only one or two bottles of hand sanitizer available for each group of 250. 

As of Wednesday afternoon, about 300 Coloradans had been tested for COVID-19, the disease caused by coronavirus, with about 10% coming back positive.

In a motion filed late Wednesday, Dearing’s defense lawyers argue the court’s treatment of prospective jurors runs counter to recommendations by the Centers for Disease Control, the Colorado Department of Public Health and Environment and Gov. Jared Polis that people – especially the elderly and others with health risks – should not be forced to congregate in crowded areas. They are asking Adams County District Court to:

  • Ensure at least three feet of space between prospective jurors during jury selection and between jurors during trial
  • Sanitize furniture and office supplies
  • Provide jurors with hand sanitizer and masks
  • Empanel more alternate jurors in case jurors contract the coronavirus

“At present, with few protocols in place, these proceedings create an undue and unnecessary risk to potential jurors’ lives, the integrity of the trial, and the community,” their motion reads. “All potential jurors —particularly those at higher risk — currently face a Hobson’s choice: comply with their legal obligations and subject themselves to a much higher risk of infection and propagating a deadly virus or complying with health recommendations issued by our state and federal governments.”

“Inaction is no longer an option,” the motion continues. “Mr. Dearing objects to … any procedure likely to result in the exclusion of fair and eligible jurors either who decided to follow their government’s recommendations and not come to court or who contracted coronavirus from other potential jurors.”

According to the motion – the 285th motion filed in Dearing’s case – the court promised at a hearing last week to provide hand sanitizer and paper towels to prospective jurors, saying it would seek further guidance on how to keep safe. It could take lawyers several more weeks to select a jury of 18 people, including six alternates. Once picked, Dearing’s jury is expected to be empaneled for several months.

Administrators at Adams County District Court have not responded to several inquiries for this story.

Meantime, 17th Judicial District Attorney Dave Young’s office says it will not comment on the motion.

A spokesman for the state judicial branch told The Independent Wednesday afternoon that county commissioners and judges in some of Colorado’s 22 judicial branches have started discussing safety protections for jurors as coronavirus infections spread throughout the state, but that “at this point, no decisions have been made.”

“We are still open for business throughout Colorado,” Rob McCallum said. 

Coloradans summoned for jury service may ask for a postponement once a year, McCallum says. But after that, he adds, “you need to come in.” 

He notes that measures to protect jurors’ health are at the discretion of local judicial districts, not the state.

The death penalty prosecutors are seeking in Dearing’s case would not be exempted by a bill Colorado’s legislature approved last month to end capital punishment. That bill, once signed into law, as expected, by Gov. Jared Polis, would only apply to crimes charged on or after July 1, 2020.

A recovering newspaper journalist, Susan reported for papers in California and Nevada before her 13 years as a political reporter, national reporter and metro columnist at The Denver Post. “Trashing the Truth,” a series she reported with Miles Moffeit, helped exonerate five men, prompted reforms on evidence preservation and was a finalist for the Pulitzer Prize in investigative journalism. Her 2012 project, “The Gray Box,” exposed the effects of long-term solitary confinement. The ACLU honored her in 2017 for her years of civil rights coverage, and the Society of Professional Journalists honored her in April with its First Amendment Award. Susan and her two boys live with a puppy named Hymie whom they’re pretty sure is the messiah.

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