It’s safe to say prosecutors and defense lawyers don’t often agree. So it’s worth noting both have argued for what essentially is an indefinite delay in jury trials due to COVID-19.
Second Judicial District Attorney Raúl Torrez of Albuquerque wrote to the New Mexico Supreme Court on July 14 seeking a postponement in the resumption of jury trials “in light of the dramatic surge of COVID cases in recent days and Gov. Michelle Lujan Grisham’s imposition of stricter social distancing restrictions.” He said people are struggling with unemployment, housing instability and education for their children and that “even if it is possible to seat a jury under these conditions, it seems unlikely enough jurors would be able to complete their service, likely resulting in mistrials.”
Meanwhile, Michael Stout of Las Cruces, former president of the New Mexico Criminal Defense Lawyers, argued precautions to make the courts safe, including social distancing and masks for everyone which he says hide facial expressions of witnesses essential to gauging credibility, rob a defendant of the constitutional right to a fair trial. “At the present time, it is impossible to conduct a jury trial that is constitutionally proper and safe,” he wrote in a Journal op-ed July 13.
Yes, in an ideal world, we would just put the justice system on hold until the virus goes away or there is a remarkably effective vaccine. In that world, most defendants awaiting trial for violent crimes – Albuquerque is on track to match last year’s total of 80 murders – could be released until some future trial date with the promise they would shelter in place rather than commit new crimes. Victims of domestic abuse would have access to technology in which to seek protection orders. Businesses and malpractice plaintiffs with life-or-death cases could simply put those issues on the shelf.
But this isn’t an ideal world, and the state Supreme Court has had the wisdom to keep the justice system operating by implementing an incredibly aggressive safety campaign.
Everyone in a courtroom must wear a mask, including the judge. (While the governor and her Cabinet take theirs off to talk at news conferences, a judge can’t.) Court employees fill out questionnaires every day, and there are temperature checks of all who want to enter the courthouse. Proceedings are spaced so jurors are socially distanced. There are testing protocols, plastic shields and deep cleaning. Smaller jury pools are called, and jurors get a mask and hand sanitizer.
“Defendants awaiting trial are constitutionally entitled to have their cases heard,” Justice Judith K. Nakamura wrote in a Journal op-ed July 20. Nakamura, who chairs the Supreme Court’s COVID-19 Emergency Response Team, recalls from earlier stints in Metro and District courts that domestic violence “victims’ phones were taken away and smashed, and phones ripped out of the wall at home. This is done to isolate victims and prevent them from seeking help.”
For many, a court with open doors is the only recourse.
Nakamura says so far potential jurors have said they are willing to serve when questioned by lawyers selecting a jury panel. Of course video should be used when appropriate, along with mediation by remote technology and plea agreements in criminal cases. The virus is real, and it is impossible to eliminate all risk. Torrez and Stout raise serious points.
But on balance, the courts have gone above and beyond in making the environment as safe as possible and consulted frequently with state health officials. We are going to have to figure out how to live in a COVID environment for the foreseeable future. So at the end of the day, as Nakamura says, “closing and locking the doors to justice is not an option.”
The Supreme Court’s decision here might not be popular with either the defense or the prosecution. But it’s the right one for the people of New Mexico.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.