Court couldn’t get 12 jurors to deliver justice in UNM player’s death?

Imagine for a moment you are a member of the family of Jackson Weller, a promising 23-year-old University of New Mexico baseball player who was shot and killed outside a UNM-area bar on Central in the early hours of May 4, 2019.

For that matter, imagine you are a member of the family of Darian Bashir, the man accused of gunning down Weller, and who continues to be held in custody.

Presumably, both sides of this awful equation — a highprofile incident that rocked the city, the state, the university and occurred just before Gov. Michelle Lujan Grisham’s first State Police “surge” into the Duke City — were looking toward closure last week when Bashir, 25, was scheduled to go on trial for murder in state District Court in Albuquerque.

That didn’t happen. District Judge Cindy Leos was forced to declare a mistrial when only 11 jurors could be seated in the case. Crowded court schedules and restrictions forced by COVID-19 make it likely Bashir’s trial won’t take place until sometime next year.

It appears an administrative error by court staff played a role in this story of justice delayed is justice denied. That’s because 17 potential jurors were notified, in error, that they had been excused. Court staff subsequently reached out to recall them to jury service, but only nine showed up Wednesday afternoon before trial was scheduled to begin.

That number, and that mistake, have special significance in this case.

Bernalillo County’s 2nd Judicial District Court has enacted measures to protect against the virus, including not bringing more than 22 people into the courthouse at a time for a prospective jury pool. Four groups of potential jurors were brought in last Tuesday and Wednesday as selection proceeded with social distancing measures.

Prosecutors and defense attorneys exercised allowable “strikes” from the list. In jury trials, both sides agree some potential jurors should be dismissed for a variety of reasons, such as being related to someone involved. Some can be struck for cause — a stated bias, for example. The rest are subject to what are called peremptory challenges — up to 12 for the defense and up to eight for the prosecution. Defense lawyers used all 12. Prosecutors used three.

At the end of that process, only 11 jurors were available, forcing the mistrial. Leos needed a minimum of 12, and presumably would have preferred to have an alternate or two for a high-profile murder trial in the age of COVID-19. The eight who weren’t available would most likely have provided the necessary members. Remember, the defense had used up its peremptory challenges.

The delay is especially unfortunate given the high-profile nature of the case and the extensive news coverage of both the accused and the victim.

Weller, a pitcher from Keller, Texas, who was recovering from an arm injury, was described by Lobo coach Ray Birmingham as “one of the classiest kids I’ve ever coached.” “Jackson lit up a room when he came into it,” he said. Birmingham and Athletics Director Eddie Nuñez have said they believe Weller was on a “first date” with a woman and defending her outside a takeout restaurant. Police say a man approached Weller and shot him at close range.

Bashir has a history of alleged violence and is one of the “poster people” in the debate over pretrial detention. He was accused of shooting a man in the stomach in the Downtown bar district in 2017, but the case was dismissed by a judge and never refiled as prosecutors admitted they made mistakes. Three weeks later, Bashir was charged with firing a semiautomatic assault rifle from a car at another vehicle in a “gang beef.” No one was hit, and Judge Richard Brown refused a prosecution request to detain him pending trial, instead ordering him released with Level 3 supervision (4 is the highest) that barred him from possessing firearms and imposed other restrictions, including drug and alcohol testing. He was on supervised release when he allegedly shot and killed Weller.

None of this is to say Bashir is guilty of murder. That’s up to prosecutors to prove beyond a reasonable doubt and for a jury to decide.

But the fact this case has now been kicked down the road because of an administrative misstep is something the courts should take very seriously — because in a sense, the system itself is on trial. And it would appear the families involved and the public deserve an explanation and most likely an apology.