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Jury trials raise concerns among attorneys

Yvonne Gonzales, left, has her temperature checked by Santa Fe County Deputy Diego Lovato at the entrance to the 1st Judicial District Courthouse in Santa Fe. (Eddie Moore/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

SANTA FE – The New Mexico Supreme Court approved the 1st Judicial District Court’s plan to reconvene jury trials, making it the latest district court in the state to have its plan accepted.

The Supreme Court had temporarily suspended jury trials to prevent further spread of COVID-19.

But prosecutors and defense attorneys in the district agree that, even with safety guidelines in place, it will be difficult to balance the safety of a courtroom while maintaining the integrity of the judicial process.

“I think the best possible plans are in place, but logistically it’s going to be very, very difficult,” said Thomas Clark, a Santa Fe-based attorney.

Many of the expected challenges revolve around various court processes, which attorneys say are vital to maintaining the constitutionality of any proceeding.

One of those difficulties includes communication between defense counsel and their clients during a trial, since all those in a courtroom will need to maintain social distancing.

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Two courtrooms at First District Court have been setup for the restart of jury trials. The jury will be spaced around the courtroom and the witness stand and court personnel have glass barriers around them. Photo shot Thursday July 2, 2020. (Eddie Moore/Albuquerque Journal)

Clark said he is still not sure how he can effectively represent a client without being able to readily communicate with them at any moment.

“I can’t do a trial if I’m not sitting next to my client,” he said, adding that confidential bench conferences with judges would also be difficult. “I see that as the No. 1 problem.”

First Judicial District Assistant Attorney Mary Carmack-Altwies, who is running unopposed for district attorney, said prosecutors will also face difficulty in communicating with one another during trial and the credibility of witnesses can’t be assessed if they are wearing face coverings the whole time.

“I think they’ve come up with the best process they can under the circumstances, but I think everyone’s having a hard time seeing how it’s going to work,” Carmack-Altwies said.

The Supreme Court stated in May that each district court would need to devise a plan to safely conduct jury trials by July 15. So far, 10 district courts have received approval of their reopening plans, according to courts spokesman Barry Massey.

But complications are expected at nearly every stage of the jury selection process. Jenn Burrill, vice president of the New Mexico Criminal Defense Lawyers Association (NMCDLA), said getting a representative cross-section of jurors will be challenging since some communities have been particularly hard-hit by COVID-19, especially indigenous people.

“With so many of the tribes on lockdown, we will not be able to have a representative sample,” she said.

The 1st District’s plan allows those age 65 and older and those with a compromised immune system to be excused from jury duty.

The NMCDLA also sent a letter to state Supreme Court Chief Justice Judith Nakamura on June 22, referencing recent positive COVID tests at the 2nd Judicial District Court as cause for concern.

The jury services room at 1st District Court has been set up to keep those reporting for jury duty socially distanced during the COVID-19 outbreak.

“As demonstrated from the COVID positive tests among court staff in Albuquerque last week, it is clear that our courthouses pose an infection risk to attorneys, defendants, witnesses and jurors,” the letter states.

Nakamura said in a written statement to the Journal that all safeguards have been implemented to keep the justice system in New Mexico moving.

“Closing the doors to justice is not an option during a public health emergency,” she wrote.

Verdict deliberations, Clark said, could also be negatively impacted since jurors may feel uncomfortable spending many hours around each other.

“Deliberations very well could be very short,” he said.

The 1st District’s Chief Judge, Mary Marlowe Sommer, said she believes trials can be conducted safely and effectively, given the guidelines now in place.

“We’re going to social distance and the courthouse will be sanitized, and people will have to wear masks,” she said, adding prospective jurors will be asked various questions to screen for possible exposure to the virus.

But others aren’t so sure.

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Two courtrooms at First District Court have been setup for the restart of jury trials. The jury will be spaced around the courtroom in area normally reserved for the public. Photo shot Thursday July 2, 2020. (Eddie Moore/Albuquerque Journal)

Carmack-Altwies said that, with the recent surge in COVID-19 cases nationwide, she is concerned about the court’s ability to keep people safe.

“I don’t see a way we can handle jury trials safely right now,” she said.

And the 1st District’s initial test of the new guidelines will come during the trial of Mark Hice – charged in the highly publicized 2018 shooting death of Cameron Martinez – on July 13 in Tierra Amarilla.

Carmack-Altwies said she is concerned about operating these new procedures in such a high-stakes environment.

“There’s already so many things that can go wrong and that’s the hardest type of case to use as your test for these new protocols,” she said.

The soon-to-be district attorney conceded, though, that coming up with an effective solution is almost impossible, given the unprecedented nature of the pandemic.

“(The courts are) trying to come up with solutions in a time period where we don’t have any answers,” she said.


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