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DA held in contempt for skipping court appearance

Copyright © 2020 Albuquerque Journal

A New Mexico district attorney says he was held in contempt of court after “heeding the governor’s declaration of a public health emergency” and failing to attend a hearing in Carlsbad earlier this month.

Timothy Rose is asking the state Supreme Court to require Judge Lisa Riley to rescind the contempt order, which was issued after Rose’s request to attend the hearing by phone was denied.

Tenth Judicial District Attorney Rose had agreed to take on a case in the 5th Judicial District, which prosecutors there were unable to accept because of a conflict of interest. The case was set for a dispositional hearing in Carlsbad on March 16, and because he is based nearly 250 miles away in Tucumcari, Rose asked Riley for permission to call in to the hearing. That request was denied, and the prosecutor planned to attend the hearing.

“Everything changed dramatically on March 11, 2020,” Rose wrote in the petition. “On that day, the first New Mexicans tested positive for COVID-19 and the governor declared a public health emergency.”

The Supreme Court would soon issue measures intended to reduce public health risks, including ordering judges to hold hearings in a way that would minimize contact among people, “including the use of telephone and technology.” Justices have since amended that order to require that hearings be held by phone and video “to the fullest extent possible.”

The prosecutor then filed a second motion asking to appear by phone, this time pointing out the Supreme Court’s new directives regarding the virus. It was also denied.

He says he submitted documents to the court, believing in good faith that they satisfied the state’s obligations at the hearing, which he believed would take less than 10 minutes. Rose wrote that he did not disobey the court but determined that public health interests would be best served by presenting his position by phone or with documents.

The hearing was held without a prosecutor, and the judge reset it for the next morning after the defense raised new requests. This time, the prosecutor received permission to attend by phone. But after the hearing, the judge ordered him to pay a $250 fine, finding him in contempt for failing to appear.

Rose says the order conflicts with the Supreme Court’s directives and the “spirit of cooperation that is needed to combat a deadly disease in this time of crisis.”

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