(CN) — A bill mandating Colorado courts to provide remote public access to criminal proceedings passed the House Judiciary Committee unanimously just after midnight Thursday morning.
When Covid-19 pandemic spread through the state in March 2020, courts were reluctant to shut down and quick to implement technologies allowing proceedings to occur remotely. As the world adapts to life with Covid-19, some courts have maintained remote infrastructure while others were quick to pull the plug.
Without guidance from the Legislature or state Supreme Court, individual judges in each of the state’s 22 judicial districts decide on a case-by-case basis how to handle requests for remote access.
“I watched literally thousands of hours of remote court in all of our jurisdictions and most of the 2022 judicial districts over the last three years,” said state Representative Elisabeth Epps, a Democrat representing Denver who co-sponsored the bill. “I’m please to say, even from my biased perspective, most of the courts are doing a good job, but there are some gaps in terms of access and consistency.”
Co-sponsor Representative Javier Mabrey, a Democrat representing Denver and Jefferson county, works as an eviction attorney. While the bill only applies to criminal proceedings, Mabrey detailed the hardships his clients faced when they rely on public transportation to access the court.
“Before Covid restrictions were in place, the only way members of the public, including Colorado Freedom Fund staff, could watch court proceedings was to block off a minimum of a half a day, travel to the courthouse which could be 2 miles to 200 miles away, and sit in the court for hour without access to a laptop or cellphone, waiting for a proceeding that would last less than an hour,” said Rebecca Wallace, senior council at the Colorado Freedom Fund, in support of the bill. “This did not encourage public observation of the court.”
To create consistency across the state’s patchwork system, Colorado Supreme Court Chief Justice Brian Boatright published draft rules last month that would limit remote civil proceedings and ban streaming of criminal trials.
Critics however have pointed out that the Supreme Court’s rules would roll back court access, limiting it in ways that more than predate the pandemic. The draft rules for example would have prohibited the broadcast of the 2015 trial of mass murderer James Holmes, which was televised to the public without incident.
Jack Johnson, a public policy liaison for Disability Law Colorado, called the statewide rollback of remote court access ableist.
“As we sit in a building that is inaccessible to people with disabilities, it’s a reminder that the most inaccessible spaces are often our courtrooms and our Legislature,” Jackson testified. “For a long time, people with disabilities have been kept out of the courtroom. Online court access came into place because able-bodied people were at risk.”
While supporters described the bill as strengthening transparency, education, accessibility, and government accountability, critics worry about preserving victim privacy and maintaining the integrity of sequestration orders meant to prevent witnesses from gaining new information from watching court proceedings.
“Broadcasting court to the entire world, that’s what putting things out on the internet is, is different from anyone being able to walk into a courtroom,” argued James Karbach, the head of Colorado State Public Defender’s Office.
Karbach said remote court access allowed attorney-client privileged information to be negligently broadcast to the public, and let case witnesses to listen to proceedings they should have been barred from.
While bill sponsor Epps said the bill benefitted victims by allowing them to watch court proceedings without having to sit within 10 feet of their perpetrator, the Rocky Mountain Victim Law Center testified against the bill.
“We do not believe this bill adequately addresses the needs of crime victims,” said Emily Tofte Nestaval, executive director of the Rocky Mountain Victim Law Center. In particular, Nestaval worried about nefarious actors recording remote court proceedings and uploading them to the internet. Even though courts could hold individuals in contempt, Nestaval said, “You can’t unring that bell.”
Though the bill focuses on providing access to court proceedings solely for the purpose of observation, other research indicates benefits for maintaining remote infrastructure for participants.
A December 2022 analysis from the Colorado Access to Justice Commission found remote access helped individuals in rural areas of the state obtain legal representation. In a 2021 analysis, Pew Research Center found offering individuals the ability to participate in court remotely generally led to an increase in participation.
"Arizona civil courts, for example, saw an 8% drop year-over-year in June 2020 in the rate of default, or automatic, judgment — which results when defendants fail to appear in court — indicating an increase in participation,” the report found. The increase in participation — and decrease in automatic dismissals — led to a corresponding uptick in work for the courts.
In a budget proposal, the Colorado Judicial Branch anticipated spending $482,160 annually on WebEx licenses to maintain remote operations to conduct 17,500 monthly meetings among 130,000 individuals statewide.
The Remote Public Access to Criminal Court Proceedings bill, HB23-1182, will now go to the full House, which must vote three times in favor then send it to the state Senate for consideration.
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