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Editorial: It’s a pandemic, but justice system can’t simply shut down

The situation is far from ideal. But as we grapple with the pandemic that has claimed the lives of nearly 1,000 New Mexicans, these are far from ideal times. We do the best we can with the information we have.

This is especially true in the criminal justice system, where defense attorneys argue that a wide range of safety procedures put in place by New Mexico courts – from mandatory mask wearing in courtrooms to conducting video and telephonic hearings when possible – are eroding the constitutional rights of their clients. Meanwhile the court system is charged with balancing public safety and justice, not an easy feat as the number of daily COVID-19 cases continues to hit the mid- to high triple digits.

So it strikes a chord when you hear Jennifer Burrill, vice president of the Criminal Defense Lawyers Association, say “we have issues of confrontation – that people are not able to assess the witnesses’ demeanor because a lot of those facial expressions are how we tell people are telling the truth” and “the last trial that I did, we had jurors say they couldn’t understand people speaking with a mask on, which raises serious concerns as to whether they actually heard all the testimony and the evidence.”

Then again, the defense bar also has criticized video proceedings – where people wouldn’t necessarily have to wear masks. Chief public defender Ben Baur says when “somebody’s freedom is at stake, it has to be done in person. Witnesses testifying by video is a huge concern.”

Of course an attorney wants the best possible scenario for representation of a client. But that doesn’t reflect the reality of the pandemic – as Burrill well knows. She tested positive for the virus in March and continued her work from home “to try to get my clients out of jail.” Meanwhile the Law Offices of the Public Defender, where she works, started contact tracing and deep cleaning.

In fact, the courts have aggressively implemented a safety standard that includes masks for everybody in the courtroom, temperature checks and screening questionnaires for anyone coming in, video and telephonic hearings when possible, exceptional cleaning protocols and jury management that includes smaller groups and plastic shields where distancing isn’t possible.

There has been some suggestion the courts use see-through masks to reveal facial expressions; those have not been approved by the Centers for Disease Control.

Meanwhile, the Supreme Court’s Emergency Response Team “continuously monitors the operations of the courts and assesses whether changes are needed to protect people who enter,” says Artie Pepin, director of the Administrative Office of the Courts. “We believe those precautions allow jury trials to continue and courts to remain open to carry out the business of the public.”

And that sure beats just shutting down the system – and either incarcerating or releasing everyone until all of this is under control. (At which point we could expect issues over the lack of speedy trials.)

So while it is understandable defense lawyers – for that matter all lawyers – would prefer to conduct trials and examine witnesses in person and without the challenges presented by the safety precautions put in place to protect everyone in the courtroom, there is a balance that must be struck. And the courts have done just that, while remaining on alert for additional adjustments as we learn more about how best to keep everyone safe.

“Closing the doors to justice is unacceptable for those served by New Mexico courts – crime victims and their families, defendants awaiting a determination of guilt or innocence, and businesses seeking to resolve legal matters,” Pepin says. “It is critical during this pandemic that courts remain open and timely and fairly administer justice.”

So yes, it’s not ideal. But it’s a careful balancing of interests and the best we can do under difficult, dangerous circumstances.

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.