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.”