Boulder judge swap highlights concerns over failure to appear warrants in virtual hearings

Mar. 6—A Boulder district judge filling in for another judge led to confusion and a series of defendants failing to appear for their hearings last week, which defense attorneys say highlights the problem with issuing warrants in the new era of virtual court appearances.

Boulder District Judge Bruce Langer was filling in for Boulder District Judge Norma Sierra on Feb. 26. Judges filling in on dockets is not unusual, but Boulder managing public defender Nicole Collins noted that in pre-COVID-19 times, a note would be placed on the courtroom door that the hearing had been reassigned to a different judge and courtroom.

In this case, no notice was posted on the virtual courtroom directory, so some defendants who clicked in to Sierra's virtual courtroom on the WebEx platform or called in by phone did not realize that their names were being called over in Langer's virtual courtroom.

"There were a ton of FTAs, which was sort of extraordinary," Collins said. "Once I got off the court call, my administrator told me they were getting inundated with calls from people who were logging into Sierra's courtroom, but nothing was happening."

Collins said the public defender's office was able to resolve most of the warrants that were issued for their clients this week. But Collins said even though the warrants did not result in arrests, it still means a failure to appear will be noted on their case files.

"Every time the court marks someone as a failure to appear, regardless of the reason, it will then get used against the client in the setting of bond," Collins said. "Say a person has several failures to appear, but if only one of those was attributed to them actually not showing up to court, that's unfair because it gets used against them regardless of the situation. If you ever listen to a bond hearing, or even when a DA is arguing bond, almost every time if there is an FTA, they will bring it up."

In this case, Collins said defendants who might not have attorneys or those who for one reason or another did not have recent contact with their attorneys would not have known about the court change.

"There really wasn't a safeguard to redirect the clients to the room where the judge actually was," Collins said. "Is there some mechanism to redirect people? But what about all the clients that just dial in on the phone? Even if there was a notice posted on the WebEx page, if I called in I wouldn't know that. Once you're in district court, there is no reason to think your cases are going to switch judges. There's no public posting that would alert you to what you need to do or public redirection to where you need to be."

Overall, Collins said web hearings have actually benefited defendants, who now no longer have to worry about transportation or child care or taking off work for shorter hearings that last only a few minutes. But virtual hearings have created a situation in which technical difficulties have begun to play a larger role in cases.

Dead phone batteries, spotty reception, muted mics and sometimes a simple lack of technical know-how have all led to defendants being marked as failing to appear since Boulder County began doing hearings online during the pandemic.

Collins says given the multitude of things that can go wrong with virtual hearings, she hopes judges will be more inclined to delay warrants for defendants in the future.

"Overall it would be nice if the court was more accommodating regarding that part where you have PR (personal recognizance) bond," Collins said. "Right now we have a lot of PR bonds, so the courts have a lot more latitude that could be used giving folks benefit of the doubt."

Collins said something as simple as a call from the courts to defendants with the time and courtroom of their hearing could be a helpful reminder and also a way to notify people of any changes to their hearing, especially for those who might not have attorneys.

"I think that would be extremely helpful," Collins said. "There is research that says calling or texting folks a reminder before their court date significantly reduces failure to appear."

Boulder District Attorney Michael Dougherty said failures to appear can cause delays that "can be very difficult for the courts, victims and witnesses."

But he also said he was not opposed to judges hearing the circumstances of defendants.

"In the interest of fairness, when a defendant returns to court, the judge should be open to whatever reason the defendant can provide for their absence," Dougherty said. "The judges in Boulder County take that careful approach."

But while last week's particular snafu was unique to the virtual hearings in place for the pandemic, Collins said there are lessons the court can take on how they handle defendants who fail to appear, in much the same way the pandemic has caused people to re-examine bonds and arrests.

"It's extremely stressful to clients who are concerned about ending up in jail should they miss court," Collins said. "I think it's hard for a certain sector of the population to understand how you could possibly miss a court date, because that should be the most important thing in your life. But some of these people are struggling with issues most of us can't even understand, like homelessness and poverty.

'It might seem obvious to you or I, but I really think people generally don't want to miss court."

Collins said the way failure to appear warrants are issued now actually in some cases compounds the problem. Clients who miss a hearing for innocent reasons then become afraid of the consequences of the warrants, and that scares them into reappearing for court.

"For most people, it's not like they're in Mexico," Collins said. "They were at home, but they just don't know how to address the warrant without going into custody."

This is where Collins did note that Boulder County's Fresh Start program, which allows people to come in on certain days and resolve their warrants without fear of arrest, has helped.

"This highly innovative program is designed to give individuals with active warrants stemming from nonviolent, low-level misdemeanor cases an opportunity to resolve their warrants and move toward a resolution in their case," Dougherty said. "This program, which is held on Saturdays, resolves open warrants and cases, while saving law enforcement the significant resources that would have been expended in the arrest and custody process."

But Collins said she still hopes the courts can do more to make sure those warrants don't happen in the first place as a result of mix-ups like the one last week.

"The question is, what do we do about this?" Collins said. "There's got to be a better way to address this, because this isn't going to be the only time it happens."