Dec. 6—Prosecution and defense attorneys huddled moments before a sentencing hearing in a murder case, negotiating over the handful of seats available in the Santa Fe courtroom for members of the public wishing to observe.
Ten people had shown up in support of the defendant, his attorney said.
He wasn't trying to "rock the boat" by trying to get all of them in but wanted seats for the defendant's grandmother and aunt.
State prosecutors asked that the victim's father, mother and sister also be allowed in — and just like that, the available public seating was full.
The judge allowed two members of the media covering the trial to sit in the empty jury box.
Those who didn't get a seat were relegated to the hall to follow the proceedings from chairs placed 6 feet apart and progressively further away from a monitor. The parties' masked faces appeared no larger than a pencil eraser and the audio was periodically drowned out by the sound of people entering and exiting the building on the floor below.
This is jurisprudence, 2021.
Though pandemic protocols in New Mexico's court system prompt continued discomfort, complaint and concern, Supreme Court Justice C. Shannon Bacon — who heads a team formed to deal with issues arising from COVID-19 — said there is no telling how long they'll be in place.
"I wish I had a crystal ball," she said. "We hope in the future, it doesn't seem like the close future ... we will have the ability to remove those [masking and social distancing] protocols. We just don't know when."
Bacon said the court's primary goal is to ensure cases in the state continue moving forward "as best they can ... while keeping people safe." But key players in the First Judicial District say pandemic-related rules have created a domino effect of unintended consequences in the courts: an inability to put on a fully public trial; concerns about defendants' rights to speedy prosecutions; and changes in procedures that alter how some crimes are prosecuted.
Cause and effect
First Judicial District Attorney Mary Carmack-Altwies said in a recent interview the social distancing guidelines have caused "a complete sea change" in how her office files cases in District Court.
Because the courthouse has only two courtrooms large enough to accommodate grand jury proceedings — both of which have been in constant use as the court attempts to work through a backlog of jury trials — her office no longer is able to use grand juries to charge defendants. She said her office now takes every case through a preliminary hearing to determine whether there is probable cause to go forward.
That, Carmack-Altwies said, creates a massive shift in workload for prosecutors, who are forced to spend more time on cases in their early stages.
While preliminary hearings can be an improvement over the grand jury system, the district attorney said it can detrimental to use them in sexual assault cases — particularly those involving children. That's because grand jury rules allow an officer who has interviewed an alleged victim to testify about what the victim said. Preliminary hearings require direct testimony from the alleged victim, who in many case isn't yet ready to talk about the abuse, she added.
"That's where [the loss of] grand jury is really hurting us," she said.
Holding preliminary hearings also takes a lot longer, she said.
Carmack-Altwies' office had filed only 390 felony cases in District Court as of Nov. 26, as compared to 826 cases at the same time in 2019 — the last year in which the courts operated without adjustments for the pandemic.
"Even though you might have seen a big drop in raw numbers of cases going to District Court, my attorneys all have caseloads that are just expanding at exponential rates," she said. "It's created this huge damming up."
For the public, the biggest change has been in accessibility. No longer is the term "packed courtroom" a reality. Trials with high visibility have created difficult, uncomfortable scenes for those who can't get into a courtroom.
While some judicial districts broadcast trials on platforms that allow for remote viewing, the First Judicial District doesn't, meaning only people who get one of an extremely limited number of public seats — usually about five — can observe the proceedings inside the courtroom.
"I've had huge concerns in at least three of our trials," said Carmack-Altwies, citing a recent first-degree murder case involving a man who was accused of arming and organizing a group of young people who went on to shoot four local teenagers, killing one. Dozens of would-be spectators were denied entry.
"You saw how many people were out in the hall," she added. "First of all, that was a superspreader event. But there were like 20 family members who wanted to go to the trial, and I think we only got to have three. Victims have a right to go to trials, and the press has a right to go to trials, and when you are having to watch it in the hallway, you can't see a darn thing. If they are holding up something, you can't read it. It's a problem, and I don't like it, and I know the public defenders don't like it."
Carmack-Altwies questioned whether safety measures need to be revisited.
"I do not like how it's being handled anymore," she said. "Certainly this time last year, I was like well, you know [it's a pandemic]. But it seems like the rules are not necessarily keeping up with the science."
Carmack-Altwies said her office has not been a part of discussions held by the Supreme Court's Emergency Response Team, headed by Justice Bacon.
"The Supreme Court has just basically pronounced rules," the district attorney said. "And I think it was an emergency at the beginning. But now people are getting vaccinated ... and the science is getting clearer. It seems like we should be pulling back on some of these."
Concerns about fairness and time
Criminal Defense Lawyers Association president-elect Jennifer Burrill said last week she's concerned with the effect pandemic protocols have had on the speedy trial rights of defendants in custody, particularly those deemed too dangerous to be released while awaiting trial.
While court rules require those defendants to be granted "priority scheduling," she said their cases aren't being prioritized and the term hasn't been defined — leaving some defendants stuck in jail indefinitely as the courts work to resolve a growing backlog.
In the First Judicial District, Burrill noted, civil trials are being alternated with criminal trials. She said "fights over money" are sometimes being heard before cases involving people who have a liberty interest at stake.
"How long do we say we are going to set aside the Constitution because of the pandemic when tomorrow I can go get a pedicure, have lunch with friends and go to the opera or the movies?" she said. "We've figured out as a community how to function in this arena, and the fact is the courts have not."
Asked to address speedy trial concerns, Bacon said the Supreme Court will cross that bridge when it must.
"Nobody has brought a speedy trial challenge to us because of COVID," she said. "We have not suspended the Constitution, which is where speedy trial comes from. ... We will wait for a case to weigh in on how that is going to work."
Burrill said she filed a petition in September 2020 asking the Supreme Court to define "priority scheduling" and determine whether a District Court judge had violated the rule by repeatedly postponing trial for an in-custody defendant. A three-member panel of the Supreme Court — which included Bacon — denied her petition a month later without comment or a hearing, court records show.
The Supreme Court's most recent emergency order, issued Nov. 2 — requiring each of the state's judicial districts to come up with a plan for addressing the backlog of cases created by the public health emergency — appears to be an attempt to address some of these concerns.
The order directs each district to submit a plan detailing how it plans to more efficiently resolve criminal cases, particularly for those in custody, and to detail what resources it needs to do so. It also asks the districts to identify alternative sites where civil jury trials might be held to free up space for criminal trials.
But details on that effort in the First Judicial District Court have been sparse. In an email, Chief Judge Mary Marlowe Sommer referred questions on the topic to Supreme Court Chief Justice Michael Vigil.
Burrill said the order specifically directs the districts to provide a plan for resolving cases in which a defendant has been in custody for over 730 days. That's significant, because speedy trial deadlines — which vary in length depending on the complexity of the case — are triggered at 12 months, 15 months and 18 months, depending on the case.
"It sounds like they are out of touch with what is happening, especially in these crisis times," Burrill said. "Maybe it's time for the Supreme Court to walk in and observe and see what is going on in the different districts. Because it's very different than what they have envisioned in their heads."
Defense attorneys also have been placing their objections to some of the COVID-19 protocols on the record but, for the most part, have been denied by District Court judges.
In a recent criminal trial, defense attorney Jason Bowles objected to being limited to communicating with a client only via cellphone due to social distancing protocols. He was told by District Judge Kathleen McGarry Ellenwood those are the rules as set by the Supreme Court.
"It may be mandated, but I'm talking about my client's right to participate in his own trial," Bowles responded. "The Supreme Court has rules, but they may not work in real life."
Still, some say not all the changes have hurt the legal system.
Julie Ball, who leads the Santa Fe public defender's office, said preliminary hearings are better than grand juries, in part because they require more actual evidence to be presented, which weeds out cases with insufficient evidence on the front end.
She'd like to see that practice made permanent.
"We need to continue prelims," she said. "We are one of the few states that still allows a DA to take a case through a grand jury. Many states do not have them at all, so maybe this will lead to a real change to statute."
In the meantime, as cases pile up, Bacon said the Supreme Court has asked the Legislature for a special appropriation to assist courts in holding trials offsite in places like community centers or gymnasiums.
"We are trying very hard to come up with creative alternatives that may create space within [other] buildings," she said. "But it requires a lot of effort. It's not simple."
Administrative Office of the Courts spokesman Barry Massey wrote in a text message the court will request $650,000, but no other information was available about how the money would be used or divided between the 13 judicial districts.
New Mexico Chief Justice Michael Vigil did not mention pandemic related costs during his presentation of the court's unified budget request at the Legislature's Courts, Corrections and Justice Committee meeting earlier this month.
The judiciary's No. 1 funding priority this year, Vigil told lawmakers, is a pay raise for judges.