PUEBLO — The murder trial of Donthe Lucas, the man accused of killing his pregnant ex-girlfriend Kelsie Schelling, has been delayed until Feb. 24 at 1:15 p.m. due to a positive COVID-19 test in the courtroom.
Schelling disappeared on February 4, 2013.
#BREAKING: The murder trial of #DontheLucas has been delayed until February 24, at 1:15 PM. There was someone who tested positive for #COVID-19 in the courtroom yesterday. We are now in recess until then. @KOAA— Colette Bordelon (@ColetteBordelon) February 10, 2021
News5's Colette Bordelon reports Judge Thomas Flesher joined the courtroom virtually to notify everyone of the delay. The health department recommends a quarantine of 14 days, and since there was the possibility of exposure due to a positive case in the courtroom, the court is following this guidance.
At first, what days the exposure happened were not disclosed by the judge. But our reporter was called by the Pueblo Department of Public Health and Environment as part of their contact tracing, which told her it was on both February 8 and 9.
EDIT: I said yesterday someone tested positive, but reading back over my notes, the judge didn’t specifically give a day. Now, I am thinking the day in question may have been Monday - we were asked several times before starting today which reporters were in there Monday. @KOAA— Colette Bordelon (@ColetteBordelon) February 10, 2021
The judge also mentioned he would like every juror to write down if the delay would impact their ability to be a juror in the case. No one is being released at this point, but he would like them to write down if the delay would impact their ability to serve. Jurors are not sequestered in this case.
This case has been delayed multiple times in the past. Lucas was charged with Schelling's murder in late 2017, and since then, the trial has been pushed back at least four times.
Kelsie Schelling's father took the stand Tuesday in the case of his daughter's disappearance. He described the last time he saw her and the last message he received from her that, looking back, he said "wasn't right." He said his daughter did not talk about her relationship with Lucas, and the first time he heard Lucas' name was when Schelling told him about her pregnancy. He said it was a surprise to him when his daughter told him about her ultrasound, since he did not know about the pregnancy prior to that day (February 4, 2013).
A Pueblo officer also took the stand to testify about what Donthe Lucas told her happened on February 5, 2013, which the prosecution pointed out did not line up with a prior timeline he gave to a Denver detective.
News5 spoke with both an attorney and retired district judge about what this long recess could mean for the trial.
Attorney Stephen Longo said this is yet another way the pandemic has affected the courts. Unfortunately, Longo said, it is delaying a case that has already waited years to get to this point. "This is just another impact. Something new. Something we've never seen or never had to encounter," said Longo.
Longo believes text message evidence and cell phone tower records already presented by the prosecution may have been persuasive to the jury. The defense has pointed out several times that Schelling's body has never been found, there is no murder weapon, and no crime scene. Essentially, the defense has said the prosecution does not have hard evidence of a murder. Longo described circumstantial evidence like a puzzle being assembled, saying without certain pieces of that puzzle, you can still begin to see the picture. "What evidence is the jury, when they break for two weeks, going to be replaying in their head? Thinking about? They're going to be thinking about the prosecution's evidence. And if it was persuasive, and it was effective for any of those jurors, they're just going to be replaying that in their mind. I think if anything, it's going to become fact to them," explained Longo, who went on to say this could be a challenge for the defense to overcome.
However, Retired District Judge Dennis Maes does not believe this long recess will favor either side. "Just like the jurors may be thinking about some facts that were presented by the prosecution, the same would also be true for the defense," said Maes.
Both Maes and Longo said the delay could throw off the rhythm of the attorneys on both sides. "It's hard often times to get restarted again. There's some momentum going in terms of how you're planning the trial, what you want to do, and to have an orderly process in presentation of your evidence, and this now has caused an interruption in that. Will it be a major factor in the quality of the presentation by either side? I don't think so," said Maes.
Longo did say there could be concerns about a mistrial, if a significant number of jurors consume outside information about this case during the two week break. "The risk for a mistrial now goes through the roof... How do you gauge, how do you probe, to see who may have been impacted? Who may have broke those orders? Does that raise mistrial issues? And it's just, it's a nightmare, frankly," said Longo.
However Maes said there is always the risk of a mistrial. "The length of the recess in and of itself would not bother me or offer concerns that there might be a mistrial... Unless the jurors are unable to reassemble in the 14 days, or whatever it is, and resume their duties, I don't see any particular reason why there would have to be a mistrial," said Maes.
Both Longo and Maes said they would not be too concerned about jurors forgetting key information regarding the evidence already presented.
Regardless, there are people on both sides of this case who have been waiting for years to get to trial. "Obviously, for the Schelling family, it's just yet another delay in what's been an awful long period of time for them, during the course of the last eight years," said Maes.
There are no cameras allowed in the building and no live reporting from the courthouse. There are also limits on the number of people who can be in the courtroom because of the COVID-19 pandemic.
Our Colette Bordelon will be there every day and will have coverage both online and over the air. Follow her on Twitter for the quickest updates.
Leading up to the trial:
21-year-old Kelsie Schelling was two months pregnant when she drove from Denver to Pueblo to see her former boyfriend Donthe Lucas. Feb. 4, 2013, was the last time Schelling was seen. Her body has never been found.
The community organized search efforts to try and find Schelling with her family filing a lawsuit in 2015 against the Pueblo Police Department and the Lucas family. The suit criticized the way the investigation was handled but was ultimately dismissed.
In December 2017, almost four years after Schelling's disappearance, Lucas was charged with her murder. By May 2018, a judge said prosecutors had proved probable cause. The lead investigator on the case from the Colorado Bureau of Investigation believes Schelling was strangled by Lucas after he lured her down to Pueblo. The theory would explain the lack of a murder weapon.
Lucas pleaded not guilty to the murder charges in August 2018, and the judge set a trial date for 2019. However, in January of 2019, both the prosecution and defense said they would not be ready to go to trial by early April 2019, because of an additional 125 witnesses who could possibly be called to testify.
The trial was then scheduled for July 2019, but Lucas' lawyers said they had new scientific evidence and needed more time to review it. In December 2019, the judge postponed the trial until May 2020, as a new lawyer joined the defense team. Then, in December 2020, the murder trial was set to start on Jan. 25, 2021.
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Previous coverage: The Kelsie Schelling Case