“Mona Lisa had the highway blues; you can tell by the way she smiles.”
– Bob Dylan
“They’re all wearing masks, but I can’t tell if they are smiling or sticking out their tongues at me.”
– Gov. Michelle Lujan Grisham depicted in a Trever cartoon July 5
Dylan and the governor remind us of the value of reading a face, and point to one reason jury trials cannot be properly conducted during a pandemic.
Not knowing what lies behind a mask is no joke when expressions of the juror, witness or lawyer lead to a serious judgment. The New Mexico Supreme Court is wrestling with its approach to trials. Unfortunately, the court’s twin aspirations – protecting public health and constitutional rights – are physically opposed to each other.
At present, it is impossible to conduct a jury trial that is constitutionally proper and safe. The collision of long-established trial activities with recent health requirements shows the problem. Face covering is only one issue. Masks are necessary to public health, but they inhibit effective communication, the hallmark of jury trials where reliable assessment of information is top priority. Social distancing is not always possible in a constitutional environment where an attorney and her client necessarily, but dangerously, whisper to each other. Witnesses testify, lawyers argue, judges spout rulings, exhibits are handled, jurors congregate, and the public attends. The simplest jur y trial places hundreds of persons at risk as participants talk and talk – and share the air in the room.
The conundrum begins even earlier. “Trial by jury” is not as the Constitution envisions – or as the community desires – because the composition of the panel is skewed by excusing those in vulnerable groups, often ethnic minorities and older people, and those who express safety concerns. …Judges understandably search for ways to approach backlogs.
Forcing an unsafe trial, however, is not a solution; reducing rights is no better. The problem is made worse by those who propose “quicker” trials, the rationale being to distance from the virus as much as possible while quickly reaching a legal conclusion. The broad-brush restrictions such as time limits on trial segments are an even greater violation of rights at a time when individualized assessment is more important than ever. There is no playbook for law and pandemics, but there are responsible suggestions for approaches to lessen the load and to make an immediate trial unnecessary such as using some mediation in criminal cases and releasing some defendants. As we search for answers, we might examine why there are many unnecessary cases in the system to begin with. And perhaps our new-found technology can be used to improve system efficiencies, rather than to replace necessary human interaction such as confrontation of witnesses.
Whatever adjustments are made, COVID-19 must not be an excuse to reduce rights via the proverbial slippery slope. We will someday get beyond the health crisis, but will the Constitution still be healthy? The New Mexico judiciary is to be commended for addressing medical safety during a pandemic, a “novel” challenge that’s not in its wheelhouse. At the same time, the judiciary is the last entity that should allow weakening of the Constitution, including trial rights. This is the very reason for the court’s existence, to bolster and protect, not reduce, our valued constitutional rights, especially in a time of crisis. With virus numbers rising and no vaccine available we still need masks, but we must not jeopardize public health or constitutional rights at the courthouse.