Copyright © 2020 Albuquerque Journal
A jury box isn’t the best place to social distance during a pandemic. Neither is traveling out of state to testify as a witness in a trial.
These are some of the reasons why the New Mexico Supreme Court issued a second order Nov. 13, suspending jury trials until Jan. 1, 2021, due to the COVID-19 pandemic.
In its order, the Supreme Court cited the public health orders by Gov. Michelle Lujan Grisham and the growing number of COVID-19 cases. This past week, New Mexico averaged about 1,900 coronavirus cases per day, with totals continuing on an upward trajectory.
This is the second time the Supreme Court has issued an order pausing both civil and criminal jury trials since the pandemic hit the U.S. in March.
Since jury trials resumed in July, 1st Judicial District Courts were operating on a two-week trial venue, using the larger two courtrooms to allow for social distancing. A trial venue is the time period each judge has to conduct a trial in one of the two courtrooms being used. For instance, Chief Judge Mary Marlowe Sommer had a trial venue scheduled from Nov. 30 to Dec. 11.
The order affects 5½ trial venues scheduled for judges through the end of the year, Marlowe Sommer said via email.
“I know that I prioritized the in-custody defendants and that I was making progress; having had five jury trials for in-custody defendants since we resumed jury trials in July,” she said in her email. “From July of this year when we resumed jury trials until last Friday, there were 14 two-week trial venue schedules total for civil and criminal trial judges.”
She said each judge uses their trial venues differently, so she can’t speak to the impact it has on each judge’s trial docket.
On October, 1 Judicial District Courts held 11 criminal jury trials compared to eight in January, Artie Pepin, director of the Administrative Office of the Courts, said in an email.
In the 4th Judicial District Court in Las Vegas, New Mexico, the court’s executive officer Robert Duran said the courts there have always had a case backlog. He said that, as far as caseloads go, the district has adequate judges and staffing. Since the pandemic, the caseload has grown a little bit, but not by much, he said.
But jury trial suspensions not only impact judges’ caseloads, but also can play into such Constitutional issues as speedy trial deadlines and pretrial detention. Chief Public Defender Ben Baur said his office plans on raising these issues in its cases.
“We don’t disagree with this step, but it raises a lot of problems at the other end that we’re all going to have to deal with. Speedy trial is one of those,” he said. “If you cut down on the number of people that you’re getting out of the court system through jury trials, we need to look at how we can cut down on the number of people currently in the system in whether they’re in custody or not.”
If there was ever a time to rethink the criminal justice system, now is the time, Baur said.
At this point, Baur said he’s not sure how the courts will interpret speedy trial issues. For those in custody, they need to be the priority for getting to trial.
“We’ve been through this once,” he said. “We don’t know whether that’s going to be six weeks, whether it could be months, and so we really have to look at how we’re doing this and who we’re keeping in custody. If this backs up, that could mean more people waiting in jail and that means greater problems for the county detention centers.”
Marco Serna, 1st Judicial District Attorney, said he doesn’t believe speedy trial deadlines will be an issue with the cases coming up on trial. He said he believes the court will take the pandemic into account when deciding these issues.
Early on, Serna said his office took a look at who was incarcerated and which non-violent offenders could be released. This meant allowing people out on house arrest, or requiring them to report to a compliance officer.
“I think that, again, it is a necessary call. And I hope that the Supreme Court and the district judges will look at ways that we can have jury trials in this pausing period, if you will, that we can have trials that are safer for individuals,” Serna said.
The state Supreme Court order allows the judges to request an allowance to hold a jury trial, which must be approved by the court.
Serna said his office recommended using one of the halls in Northern New Mexico College to conduct trials. In the past, even movie theaters have been used for high-profile cases, which would allow ample room for social distancing.
Regardless of how trials look, or which hearings can be held virtually or in person, COVID-19 has changed the way the justice system operates. But, despite this, the courts remained open for business throughout the pandemic.
“Figuring out how to do justice in the middle of a pandemic is just getting harder and harder,” Baur said.”But we have to challenge our assumptions and really work together to try and do it right.”