Copyright © 2020 Albuquerque Journal
Four judicial districts in New Mexico have been given the green light to start holding jury trials again, but there are already concerns about the constitutionality of those trials in the age of COVID-19.
The state Supreme Court gave the OK for the 6th, 9th, 12th and 13th judicial districts to hold jury trials, according to the Administrative Office of the Courts’ spokesman Barry Massey. Metropolitan Court in Albuquerque also got the OK and plans to start holding trials again on July 6, a court spokeswoman said.
The high court temporarily put trials on hold amid the COVID-19 pandemic.
District courts in New Mexico’s most populous cities have not yet been approved to resume jury trials.
The 12th Judicial District Court in Alamogordo held the state’s first COVID-19-era jury trial on Monday. Johnny Gutierrez, 47, was facing one count each of trafficking a controlled substance and use or possession of drug paraphernalia. The proceedings were broadcast on YouTube.
The jury convicted Gutierrez of the misdemeanor drug paraphernalia charge, but couldn’t come to a unanimous decision on the felony trafficking charge, causing Judge Angie Schneider to declare a mistrial. Carolyn Glover, a spokeswoman for the 12th Judicial District Attorney’s Office, said the office plans to retry the charge.
But before the trial started Monday, Gutierrez’s attorney, Roberta Yurcic, filed a motion for a mistrial. She argued that the court’s plan for jury trials was not made available to her before the trial, that Gutierrez would not be able to effectively communicate with her during trial due to social distancing protocol, and that Gutierrez was not being afforded his constitutional right to a public trial because members of the public were being directed to watch the YouTube stream.
Yurcic also argued that Gutierrez wouldn’t be afforded his right to confront his accusers due to the requirement that everyone in the courthouse wear a mask.
“If witnesses are permitted to testify while wearing a mask, the integrity of the trial will be compromised as the trier of fact will be unable to assess the credibility of each witness,” the motion states.
Schneider denied the motion on Monday and the trial continued.
According to the 12th Judicial District Court’s plans for resuming jury trials, jurors will be provided face masks and gloves, and potential jurors who are considered vulnerable to COVID-19 can be excused on request.
Three jurors will be seated in the jury box, with the remaining jurors seated in the court gallery. The jury will then deliberate in the jury assembly room.
For bench conferences, the judge and attorneys will leave the courtroom and go to a secure area near the judge’s chambers.
Defendants will be able to communicate with their attorney by passing notes through a Plexiglas window. Yurcic’s motion said this rule violates Gutierrez’s right to assistance of counsel because he can’t read or spell.
According to Metro Court plans released Wednesday, jurors’ temperatures will be taken before they enter the courthouse and they will be provided a mask, a personal bottle of hand sanitizer and a pen. Anyone wishing to observe a trial will be given information on how to view it remotely.
Sidney Hill, a 2nd Judicial District Court spokesman, said the court submitted its plan to the Supreme Court and can’t hold trials until it is approved. He said he couldn’t share a copy of that plan with the Journal until such time.
