Copyright © 2020 Albuquerque Journal
They may not agree on much, but Bernalillo County’s district attorney and the state’s public defenders are on the same page on one thing: Neither thinks the state judiciary has done enough to safeguard the health of court staff, lawyers, defendants and others in the wake of the coronavirus outbreak.
In a letter Monday morning to New Mexico’s high court, Raúl Torrez asked the justices to take “decisive, blanket action on par with the governor’s declaration of an emergency” given that social distancing is believed to be the most effective measure for slowing the spread of COVID-19.
The New Mexico District Attorneys Association and state Criminal Defense Lawyers Association also expressed concerns to the court on Monday.
The latest letters come a day after the Law Offices of the Public Defender reached out to the Supreme Court with its own set of proposals. Chief Public Defender Bennett Baur said that the virus could spread rapidly if it made its way into a jail, and he pointed out that many people who would not otherwise be in contact with one another flow in and out of courthouses each day.
Both Baur and Torrez have asked the state Supreme Court to postpone hearings in cases involving a defendant who is not in jail.
“We agree that more drastic measures are needed to protect the public and we request that the New Mexico Supreme Court exercise its power as the governor’s co-equal to manage the judiciary’s response during these extraordinary times,” Torrez wrote, referencing LOPD’s suggestion that jury trials and other nonessential hearings be vacated for 30 days.
In a statement Monday, Barry Massey, spokesman for the Administrative Office of the Courts, said the judiciary is reviewing recommendations from public health officials, local courts and people in the legal community regarding how best to keep courtrooms safe.
Some individual courthouses on Monday announced new plans intended to limit traffic inside their buildings. But Torrez wrote in his letter that local courts have limited power to respond to the emergency.
He has asked the justices to encourage lower courts to hold only constitutionally required hearings in cases where the defendant is in custody. He also proposed suspending a local rule that imposes tight deadlines in Bernalillo County cases, saying that complying with them will become increasingly difficult as the community – including witnesses – wrangles with coronavirus precautions, including self-quarantine and travel restrictions. Torrez additionally asks the court to waive deadlines for initiating felony cases for both in and out of custody defendants, and to support efforts to conduct as many hearings and pretrial interviews as possibly via video.
LOPD officials said on Monday that both sides have been making concessions in light of the crisis, and they agree with some of Torrez’s ideas. They have agreed, for example, to push back some upcoming preliminary hearings in District Court by 30 days for defendants who are not in custody, to conduct some pretrial interviews over the phone, and to consider seeking an extension for interviews that must happen in person. They do not believe that should be mandated.
Still, they prefer to evaluate cases on an individual basis and oppose the suspension of the local rule that imposes deadlines, saying it already allows for accommodations under extraordinary circumstances.
Baur said it is vital that court practices go back to normal when the crisis is over.
“We understand that there are going to be limits on this right now because this is an emergency,” he said. “But when it is done, we have to return to the real human aspect of this system.”
Baur has requested a meeting of stakeholders to discuss a range of topics, including the possibility of releasing nonviolent defendants awaiting trial or serving a sentence, and of suspending arrests and detention for nonviolent offenses, failure to pay fines and technical violations of release and probation, among other items.
Dianna Luce, the president of the District Attorneys Association, voiced concerns about that proposal. She said she believes interfering with the ability to make arrests could raise a separation of powers issue. She is also opposed to the possibility of releasing defendants who are in custody, saying many people are quickly released under the current system.