Jury trials to resume under new guidelines
DA Serna, attorney for man accused in 2018 killing voice concerns about safety plan
The state Supreme Court has approved the First Judicial District Court’s reopening plan, and the first local criminal jury trial in months — one with intense local interest — is scheduled to start in less than two weeks.
Chief Judge Mary Marlowe Sommer said she’s “very happy” with the 168page plan that outlines how courts will resume trials and in-person hearings while still adhering to the Supreme Court’s orders regarding social distancing and capacity restrictions.
The plan, approved Wednesday, calls for each person entering the courthouse to be screened for symptoms of COVID19 and to wear masks at all times. It also includes quarter-inch tempered glass between judges and witnesses, as well as socially distant seating arrangements.
The plan also includes detailed descriptions of how each person in the courtroom will allow 6 feet of distance. Other features include provisions for overflow viewing rooms where spectators can watch proceedings when the few seats that will be available for the public are full.
But both District Attorney Marco Serna and Sheri Raphaelson — the defense attorney for Mark Hice, whose murder trial is scheduled to begin July 15 in Tierra Amarilla — said they have concerns about whether the plan provides justice and safety for participants.
Hice, 24, is charged with first-degree murder and conspiracy in a 2018 shooting on N.M. 68 that killed 18-year-old Cameron Martinez of Alcalde and injured Martinez’s three passengers.
Hice and two other men are accused of opening fire on Martinez’s car in what authorities have called a case of mistaken identity.
Martinez’s family and other victims have filled the gallery at each of Hice’s hearings over the past year and a half.
But that can’t happen under the provisions of the plan, which calls for jurors to be seated in the gallery to ensure they remain 6 feet apart — leaving few seats open for the public.
“The plan limits seating in the courtroom in Tierra Amarilla to just five members of the public, with the only alternative being closed-circuit TV screens,” Serna wrote in an email Thursday. “This means that the victims, their representatives and their family and friends, who have packed the courtroom for every other hearing, won’t be there. The family is devastated.
“Aside from being heartbreaking to the family, the local plan does not adhere to the Victims of Crime Act and the state Constitution which guarantees them the right to attend every public court proceeding that the accused has the right to attend,” Serna added. “No one is suggesting that the defendant be relegated to watching this case unfold on closed-circuit TV, but that is the reality our victims face.”
Raphaelson, who also is a midwife, said she’s concerned about the rules from both health and justice standpoints.
She said the questions the plan directs screeners to ask people to answer for entry into the courthouse don’t include all the symptoms of COVID-19 identified by the state Department of Health, such as shaking with chills or muscle pain. She said there are other omissions as well.
“As a health care worker, a midwife … I’m just personally sort of offended that a deputy or some court worker is gong to be asking personal health questions to jurors. If I was a juror, I’d say, ‘None of your business. … Why do I have to answer your questions about my health?’ Where is the plan for keeping that information private? There isn’t a plan; it’s the opposite. The information will be passed on. Health information is supposed to be generally kept private.”
Raphaelson said she understands the need for the screening but added it would be more appropriate for a health care professional — “not a deputy or some court worker” — to do the asking.
She also questioned how jurors will determine the reliability of testimony given by masked witnesses.
“Looking at someone’s face and listening to them are both things you do to tell if someone is telling the truth,” she said. “Are they smiling, are they laughing are they looking away, is their lip quivering? We all pick up a lot of information from facial cues, and this is going to impact that.”
Sommer said Thursday she didn’t want to address issues directly related to the Hice trial. But she said the plan was the “synthesis” of many different sources of input, including the Supreme Court’s orders, Gov. Michelle Lujan Grisham’s orders and health expert guidelines — most passed from other agencies to be folded into the court’s outline.
Administrative Office of the Courts communication officer Beth Wojahn said in an email Thursday the screening questions are being revised to make sure they comply with the governor’s orders on outof-state travel.
“Also, answers to screening questions aren’t recorded,” Wojahn said. “For contact tracing information, only names and contact information for visitors are recorded and maintained no longer than four weeks.”
Asked if the Department of Health had reviewed the court’s reopening plan, spokesman David Morgan wrote in an email: “New Mexico Courts have developed and established their plans on their own, seeking input as needed. If you require a specific answer to ‘did [the Department of Health] review and sign off on the plan?’, the answer is no.”