Colorado law says anyone can watch most criminal courts online. But not all judges comply.

Eighteen months after Colorado legislators changed state law to require that courtrooms livestream most criminal proceedings, Denver District Court Judge Anita Schutte started her Monday afternoon with a declaration.

“This court doesn’t livestream,” she said from the bench.

The judge issued what seemed to be a blanket rule at the start of the afternoon, before any cases were called. She didn’t make case-specific findings about not livestreaming, as required by state law.

“I think it creates a safety issue for all the people in this courtroom,” she said.

Schutte’s practice stands alone among Denver’s regular criminal courtrooms, The Denver Post found during a four-month review of Colorado judges’ livestreaming practices in the wake of the 2023 law change.

The Post spot-checked which courtrooms were livestreaming once daily over five weeks between November and February — 24 statewide point-in-time checks. The newspaper found that of the 374 courtrooms listed on the Colorado Judicial Department’s livestreaming website, 253 — 68% — livestreamed at least once during those point-in-time checks, which The Post did at different times of day.

The majority of Colorado judges are complying with state law and livestreaming criminal proceedings at least to some degree, The Post’s analysis shows, though day-to-day practices around how that livestreaming happens still vary from courtroom to courtroom.

There remains room for improvement as the courts settle into a what lawmakers envision as new era of widespread livestreaming, advocates and former lawmakers said.

“There are a lot of places that are consistently doing it well and demonstrating they are trying to,” said Elisabeth Epps, a former state representative who sponsored the 2023 livestreaming bill. “And there are some judges who have decided the law doesn’t apply to them.”

In Denver, Schutte was the only judge with a regular criminal docket who did not livestream at least once during the newspaper’s spot-checks, The Post found.

State law requires judges to livestream criminal court proceedings except in a handful of exceptional situations. Livestreaming can be shut off if the court doesn’t have the technical ability or staffing to stream, or if the courtroom is closed to the public both in person and online.

Judges can also turn off livestreaming if they find it compromises anyone’s safety, a defendant’s right to a fair trial (including violations of sequestration orders) or a victim’s rights — as long as the judge also finds that there is no “less restrictive alternative” to let the public continue to watch remotely while preserving those rights, such as by streaming audio only or turning off the livestream for part of a hearing instead of an entire hearing.

Judges who make those findings and turn off livestreaming must base their decisions “on the particular facts and circumstances of the case,” the law states.

“They can’t just adopt a blanket rule, they have to do it on a case-by-case basis,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.

In court Monday, Schutte said observers were welcome to watch court in person inside Courtroom 5E of the Lindsey-Flanigan Courthouse, or to attend court virtually through Webex, which allows remote users to login and participate in court. (Livestreaming, by contrast, is like TV: it’s one way and viewers can’t participate).

A Denver Post reporter who attempted to watch Schutte’s courtroom virtually on Webex was blocked from doing so when she logged in to Webex with her first and last name. Schutte asked whether anyone in the courtroom knew who the reporter was and whether she should be allowed to observe remotely. When no one spoke up in person, the reporter remained blocked online. A second remote Webex user was allowed to observe after someone in the courtroom vouched for them.

Not until the reporter re-labeled herself by adding “Denver Post” after her name did a court clerk allow her to watch the virtual proceedings — and only then after the reporter first turned on her camera so the clerk could “verify” her identity. The reporter did not present identification or a press pass, just briefly appeared on camera.

Schutte, who declined to speak with The Post but issued a two-paragraph statement through a spokeswoman, said both in court and in her statement that turning off the livestream and using the extra verification process for Webex was due to spammers who twice logged in to her virtual courtroom and played “highly disturbing” pornographic videos.

“I have an absolute duty to maintain decorum in my courtroom and to ensure the physical and emotional safety of everyone in it,” she said in the statement.

Such spam disruptions are not possible with one-way livestreaming, Roberts noted.

“The decision of whether to let someone into Webex or not becomes more complicated when you don’t livestream,” he said, noting that courtrooms with the livestream up can then limit Webex to case participants while ensuring remote public access through the one-way livestream.

Schutte said in her statement that spammers have been known to use a livestream to learn information about cases, such as the names of a defendant, interpreter or attorney, then use that to log in to Webex and disrupt proceedings. But she also noted that her staff “verifies” every user before allowing them into Webex.

She did not answer a question about how her practice of never livestreaming complies with the part of state law that requires she make case-by-case findings to turn off the livestream.

Epps, who watches court across a wide swath of the state in her role as executive director of the Colorado Freedom Fund, said judges who don’t comply with the livestreaming law have become outliers. Many judges face the potential of spammers and yet still regularly livestream proceedings, she added.

“It becomes indefensible when one or two, or in some counties just one judge, does not do what every single judge does,” she said, adding later, “When you won’t follow a logistical, procedural transparency rule, how can you be trusted to follow rules around evidentiary decisions, around sentencing guidelines, around any of the other important decisions we make?”

Judicial directive conflicts with law

Colorado’s judiciary embraced virtual court in order to keep functioning during the COVID-19 pandemic. One-way livestreaming followed that abrupt transition to remote court, but the Colorado Supreme Court, which issues guidance and rules for the state’s judges, has never embraced livestreaming as fully as legislators.

In April 2023, before lawmakers passed the new law requiring livestreaming to be routine, then-Chief Justice Brian Boatright issued a directive that outlined when judges should and shouldn’t livestream. That directive, which largely restricted livestreaming and gave judges significant discretion, now conflicts with state law.

Neither Boatright nor his successor, Chief Justice Monica Márquez, have changed the directive to match what is required by law, despite repeated calls from at least one lawmaker — Rep. Javier Mabrey, a Denver Democrat who also sponsored the livestreaming bill — to do so.

The differences between the chief justice’s directive and state law has led to confusion among judges about livestreaming, Mabrey wrote in a September letter to Márquez obtained from the Colorado Judicial Branch through an open records request.

He noted that some courtrooms require remote observers to use Webex, while others reserve Webex solely for case participants — like attorneys or defendants — and prohibit observers from using the platform. Some judges will shut off remote livestreaming in the middle of a hearing without publicly explaining why, he wrote.

In at least two counties, clerks have suggested they require observers to register in advance or file a motion in order to observe remotely, Mabrey wrote.

“As a lead sponsor of HB-1182, it is disappointing to see the key purpose of the bill — statewide consistency in access to virtual court observation — undermined by the continued existence of a conflicting (chief justice directive) adopted during the course of the legislative process,” he wrote.

Márquez declined to speak with The Post. When asked why Márquez has not revised the directive to line up with state law, Judicial Branch spokeswoman Suzanne Karrer said the directive is “an expression of the policy of the courts regarding courtroom procedures” that “balances public access and transparency with a judge’s necessary discretion” to manage a courtroom.

“We share the legislature’s goal of providing public access to criminal proceedings where it will not affect the fairness or dignity of the proceedings or the safety of the participants,” Karrer said in the statement. “…Chief Justice Márquez is open to continuing conversations with legislators on balancing livestream policies with the safety and integrity of our court.”

Whether judges should follow state law or the conflicting chief justice directive is not a cut-and-dry legal concept, said First Amendment attorney Steve Zansberg, who also represents The Post. (The courts previously exempted themselves from the Colorado Open Records Act, another transparency effort passed by lawmakers.)

But Zansberg said past legal precedent — set by the Colorado Supreme Court — has established that the courts must listen to lawmakers when the legislature speaks clearly and specifically about public access.

“(The Colorado Supreme Court) has acknowledged the authority of the General Assembly to, through very specific legislation, dictate what information the judicial branch must make available, and it has acknowledged that it is bound to honor such pronouncements,” he said.

Karrer said in the statement that judges should follow both state law and the chief justice’s directive.

“Chief Justice Directives carry the weight of law,” she said. “We expect judges, lawyers and litigants to follow CJDs just as we expect them to follow court rules, statutes and the constitution.”

She did not elaborate.

James Karbach, a spokesman for the Office of the Colorado State Public Defender, said public defenders “are frustrated by the current state of affairs” and have ongoing concerns about how livestreaming impacts court proceedings. The conflict between state law and the chief justice directive exacerbates the issue, he said.

“The mere fact that it is a dispute is leading to inequity and confusion,” he said. “When there is a dispute about which rules you are following, and courts come down in different directions on which rules govern and whether they conflict or not, it leads to different results and difficulty in understanding what the rules are.”

A bill currently pending in the legislature, HB-1147, is largely aimed at reforming the state’s lower-level municipal courts, but would also make clear that state law on court livestreaming supersedes all chief justice directives, Roberts said. Additionally, the bill reiterates that judges who turn off livestreaming must make case-specific findings before doing so, and expressly forbids judges from adopting “blanket rules prohibiting remote observation.”

“It’s an attempt to make that clear, because at least anecdotally, there are some judges who are not as keen on (livestreaming) as the law intends,” Roberts said.

Courts want new virtual system

The Colorado Judicial Branch wants a new system for virtual court and livestreaming.

Courts have used the Webex system, which allows for both one-way livestreaming and participatory remote court, since the pandemic. Webex was designed as a business meeting platform and not specifically as a system to host virtual courts, Márquez said during the chief justice’s annual address to the legislature in January.

In mid-2024, spammers started to disrupt virtual courts by displaying pornographic, offensive or violent images and videos in virtual courtrooms. Judges and staff struggled to prevent the disruptions in large part because of the way the Webex platform functions, according to budget documents. At one point, the courts were seeing between 30 and 50 disruptions across the state’s roughly 500 virtual criminal and civil courtrooms each day, according to budget documents.

“I have heard directly from several judges about the mental and emotional impact these nearly daily attacks have had on them and their staff,”  Márquez said in January. “Virtual proceedings have now become a regular feature of our courts, and we have to be able to provide a safe and neutral courtroom environment for litigants, judges, staff and the public.”

The department started the process of finding a new virtual court system late last year with the goal of launching a new system by the end of 2025. Judicial officials are seeking legislative approval for $3 million to fund a new system in the 2025-26 fiscal year, according to state budget documents. The department expects to spend about $4 million annually going forward on the new system, according to the documents.

Judicial officials are scheduled to go before the state’s Joint Budget Committee on Thursday with the funding request.

Former state Sen. Rhonda Fields, who also co-sponsored the 2023 livestreaming bill, said Monday she is pleased with the 68% of courts that streamed during The Post’s spot-checks, and said she expects demand for virtual and remote court proceedings to only increase as the public becomes accustomed to the access.

“I think it should be higher, and I think we will get there over time,” she said. “It gives people greater access — and people want access.”

Denver Post staff writer Lauren Penington contributed to this report. 

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