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Law360 (October 28, 2020, 6:37 PM EDT ) A public defender concerned over a spike of COVID-19 cases in a Colorado county was found to be in contempt after he appeared virtually rather than in person to represent his client at the beginning of a criminal trial.
Fourth Judicial District Judge Robert Lowrey on Tuesday ordered attorney Adam Steigerwald to appear in person on Thursday to be sentenced for contempt. Though the judge had ordered that the criminal trial be conducted inside the courthouse in El Paso County, Colorado, the lawyer appeared instead through a video link, according to a transcript of the proceedings.
Steigerwald told the court that under an August order by Chief Judge William Bain of the Fourth Judicial District, any criminal proceedings that can be conducted remotely should be done either by phone or by WebEx, the court's video link.
The attorney also asserted that the Colorado State Public Defender's Office has a COVID-19 policy that attorneys should not proceed to trial in person — during which over a dozen people living in different households would need to be in the same room together — if the public health data suggests that it would be unsafe to do so, according to the transcript.
"This is not a position I take lightly," Steigerwald said. "It's not a position our office takes lightly, but it is our position."
Steigerwald's assertions did not sway Judge Lowrey, who told the lawyer that Judge Bain's orders do not apply to trials, according to the transcript. Judge Lowrey stated he believes that the safety procedures put in place at the courthouse in El Paso County have allowed in-person trials to be conducted safely for over two months.
"The results that I've heard have been very good," Judge Lowrey said. "The juries have been pleased. No one has been ill. So I believe it is safe to proceed to trial."
The judge asked Steigerwald whether given that COVID-19 is "going to be around for years," at what point would the lawyer consider it safe to hold trials, according to the transcript.
"When we're not in the middle of the worst spike in our community that we have," responded the attorney, noting that he had represented a client in person for a trial in August, when rates in El Paso County were much lower.
Over the last two weeks, the county has had an incidence rate of 271.8 per 100,000 people and an average test positivity rate of 6.49 percent, according to the El Paso County Public Health Department's website. The average test positivity rate for the last 14 days has increased by 28% compared with the previous 14-day period, according to the data.
The Colorado State Public Defender's Office believes that the recent increase in confirmed cases — including at the courthouse and jail in El Paso County — make the locations "unsafe working environments," given that participants, members of the jury and others would need to have extended exposure to each other, the office said in a statement.
"We support our lawyers who have an ethical responsibility not only to their clients but also to the system which they work and to their own families to keep themselves and the people around them safe," the office said in the statement.
Jon Sarche, a spokesman for the Colorado Judicial Department, said that judges may set their own policies for their courtrooms concerning attorney appearances amid the pandemic.
"There is no blanket policy on attorneys appearing in person — each judge has latitude in managing his or her own courtroom," Sarche said.
Judge Lowrey ordered Steigerwald to appear in person in court on Thursday for sentencing and to determine how the case will proceed for his client, Marshall Scott Beaver, according to the transcript, which did not detail the charges that Beaver faces.
Counsel for the parties could not be reached for comment on Wednesday.
Colorado is represented by Nicole Triola of the Colorado District Attorney's Office.
Beaver is represented by Adam Steigerwald of the Colorado State Public Defender's Office.
The case is People of the State of Colorado v. Beaver, case number 19CR3081, in the District Court of El Paso County, Colorado.
--Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
