UPDATE: On Monday, March 23, District Judge Mark Warner cited health concerns when postponing proceedings in Dearing’s trial until April 6.
The death penalty trial against Dreion Dearing is currently expected to go on despite a Colorado Supreme Court order suspending normal state court operations as a precaution against the coronavirus.
Dearing, 24, is accused of killing Adams County Deputy Heath Gumm in January 2018.
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.
“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.)
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.