Hay and Powell

John Powell (right) testified at his own trial on in early September, but he repeatedly said he did not know the answer to questions surrounding the murders he admitted to carrying out. Powell's in-person jury trial is the only one held in the First Judicial District since the pandemic hit. Jury trials will resume in February.

    If you’re facing the court in New Mexico you might be in for a bit of wait. Since November there has been a stay preventing new jury trials in New Mexico through the end of the year.

    The stay on new trials has been in place since mid-November but there are still several jury cases ongoing in the First Judicial District.

    One of the trials that’s been delayed to COVID-19 is that of Damian Herrera, the man accused of quintuple murder in 2017. Herrera’s lawyer Michael L. Rosenfield said they had pushed back the trial but set a firm date in July.

    “In our opinion you can’t get a fair trial if everyone is in a mask and socially distancing,” Rosenfield said. “If the jury is in the gallery and not just the jury box who knows what kind of reaction you can get? It’s not fair, not fair to the state or the accused.”

    Rosenfield said his firm had been requesting delays in jury trials state-wide for that reason and that the only jury trial that has gone through since the pandemic started was the trial of John Powell, who was found guilty early in September of shooting three people in 2018 alongside his brother Roger Gage, who confessed in 2019.

    The New Mexico Supreme Court has in effect suspended parts of the sixth and 14th amendment as well parts of Article II of the New Mexico constitution arguing that a right to a fair trial is more important than the right to speedy trial, Rosenfield said.

Swift but fair?

    “It’s hard to argue that trial should be gotten to swiftly but unfairly,” he said.

    Barry Massey, the communications officer for the New Mexico Administrative Office of the Courts said aside from jury trials the courts were handling cases as they came in before COVID-19, however, the number of new cases filled has gone down.

    “The focus of the courts has been to keep all courts open and cases flowing, and making changes so fewer people need to go to the courthouse,” Massey said.

    The sixth amendment of the United States constitution protects any person’s rights to a fair and speedy trial. In New Mexico, however, it’s more of a guideline.

    “There’s long standing case law for the district courts that there’s no strict time limit,” Massy said.

Filings down

    Artie Pepin, director of the Administrative Office of the Courts found that filings in the first district court in October were down 17 percent from where they were before the pandemic in February. In February there were 636 new cases filled and in October there were 528. At the first district magistrate court new filings were down 30 percent. In February there were 1,128 cases filed and in October 786.

    Pepin wrote in an email that new case filings were gradually increasing back up to pre-COVID numbers.

    “When the pandemic first hit, case filings were much lower,” Pepin wrote. “For example, new cases filed in April statewide for district court were only 57.7 percent of the number filed in March and in magistrate courts the number filed in April was only 44.9 percent of the number filed in March. In just the First Judicial District Court the number of new cases filed in April was only 61.3 percent of the number filed in March. In magistrate courts in the First Judicial District the number filed in April was only 39.9 percent of the number filed in March.”

    Pepin pointed out that there were unique challenges caused by the COVID-19 pandemic.

    “It is worth noting that it is more challenging to hold hearings and close cases now than in February, due to having to schedule video or phone meetings, making connections across multiple platforms to get attorneys, the jail, and clients online with the court for remote hearings, and working with court personnel who may be working remotely away from the court but in any case are often not in the same room as the judge when conducting remote hearings.”

    The few in person hearings the court was having were affected by pandemic related technical difficulties as well Pepin said.

    “In-person hearings can be slowed by the requirements for all parties to wear masks and stay at least six feet apart after passing a screening upon entering the court,” Pepin said. “ With these challenges the courts in the First Judicial District in October still closed 93.8 percent of the number of cases closed in February in district court and 75.8 percent in magistrate court.”

Surge coming

    Massey said there was talk of a backlog, but as a whole those were cases waiting to be filled instead of ones waiting to file at the courts

    “There will be a surge of certain cases that will be filled and need to be served post pandemic,” Massey said.

    Evictions and consumer debt as well as civil filings where the sort of cases Massy identified as expecting an uptick after the Pandemic restrictions cleared up.

    The New Mexico Supreme Court has put a stay on evictions due to nonpayment that will last until another order is given. Rent, however, does accumulate during this stay.

    The New Mexico Supreme Court has also halted consumer debt collection during the pandemic until the supreme court issues an order otherwise.

    On Tuesday the New Mexico Supreme court issued an order saying that courts may resume trials starting Feb. 1. The order also restores the ability to lawyers to excuse a judge from presiding over a criminal or civil case starting Jan.1, the pre-emptory excusal rules were suspended in March to allow courts to better mange their caseloads during the pandemic.

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