In the era of COVID-19, order in the court really means there’s a new order in the court.

What had long been taken for granted — or grudgingly accepted — in the state’s court system is getting a new examination as New Mexico’s judges, attorneys and legal personnel feel their way through a long period of adjustment against the backdrop of the coronavirus pandemic.

With jury trials again on hold and nearly every procedure affected, people who work every day inside the court system say it’s still too soon to know what long-term effects the COVID-19 crisis will have on justice in the state. For now, they describe a process that demands patience, flexibility and a dependable internet connection.

“It strains everybody,” said Administrative Office of the Courts Director Arthur Pepin. “But we can’t just close and say, ‘No more justice until it gets better.’ ”

Guided by dozens of orders from the state Supreme Court, about $2.5 million has been spent in the past eight months to change how the system operates, Pepin said. New screening protocols were implemented. Protective barriers were installed. Technology was purchased to move hearings — the indispensable lifeblood of the system — online.

Many of the moves have won plaudits from attorneys, who say some online innovations have, at minimum, allowed courts to still operate. But with jury trials on hold until the end of the year, they say it’s still too soon to know what the long run will look like.

Pepin — who serves on the Supreme Court’s emergency response team, which meets at least weekly to discuss pandemic-related issues that arise in the courts, said in a recent interview the short-term effects have been mixed, and the daily changes create the inability to determine what will happen in the long run.

Pepin said courts saw a huge drop in the number of cases filed in the pandemic’s first few months, though it has slowly crept up to 85 percent of pre-pandemic levels. Fewer cases has brought some savings but also means courts are collecting fewer fees. There is a ripple effect: Some court programs — including the Judicial Information Division, which operates the courts’ massive online case system — derives about 45 percent of its budget from fees.

Pepin said that will become an issue if the pandemic continues for a longer period.

Jury trials have mirrored the pandemic’s pattern of bad news, better news, worse news. They were halted in March, resumed in July and then were suspended again earlier this month through the end of the year. Pepin said officials have even begun considering holding trials in larger public spaces, such as convention centers, to allow for social distancing.

In the First Judicial District — which serves Santa Fe, Los Alamos and Rio Arriba counties — those discussions have included consideration of using the state Capitol, Pepin said. But the courts have not entered into any agreements, and the issue has become less of a priority with the suspension of trials.

Still, COVID-19 has wreaked plenty of havoc even before cases have reached the trial stage. The local District Attorney’s Office had to close for two weeks after an employee tested positive, three area offices of the Law Offices of the Public Defender are closed until further notice, and the Albuquerque and Las Cruces offices are out the last two weeks of November.

The plusses and minuses of technology

By necessity, technology has come to the forefront in matters such as filing documents and making payments online. But it’s also changed procedure.

Outgoing First Judicial District Attorney Marco Serna said his office has gone from using grand juries to screen cases before suspects are charged in District Court to using preliminary hearings at which the parties present evidence online to a judge who decides if there is probable cause to move forward with prosecuting the defendant.

Such changes, said District Defender Julie Ball, who heads the Law Offices of the Public Defender in Santa Fe, have allowed lawyers to consider a different way of approaching cases.

“This has allowed the justice system to reevaluate some of our old practices that seemed to have essentially been done just because they’ve always been done,” she said.

On the other hand, Ball said the shift to online hearings and the technology that makes them possible creates difficult problems and hardships for less affluent and older defendants who lack access to smartphones and computers.

Ball said some defendants have had to purchase phones just to make court-ordered appearances by phone or video. Some have purchased phone plans that require them to pay by the minute. Some are forced to spend hours on the phone waiting for their case to be called.

“There are a lot of extra issues that come out of that we had never thought of before,” she said.



Chief Public Defender Bennett Baur agreed conducting hearings remotely has had some advantage — including travel, which used to occupy the time of many attorneys.

“For example, I was able to appear in Hobbs this morning without making a 10-hour, round-trip drive,” he said.

But Baur said the improvement in technology has deprived the system of what makes it special and effective: personal interaction.

“There are some great advances with the technology,” he said. “But what we can’t do when this is over is lose the actual humanity in the process. And I’m worried about that. We need to know our clients. We need to sit with our clients. And a prosecutor or a judge, if they are asking someone go to prison, they need to be able to see the person. And I’m concerned we will get further and further away from the human aspect of this system.

“Right now, we can’t go see our clients in jail, and there is a good reason for that,” Baur added, referring to the virus’s easy transmission. “But we need to be able to see our clients in person. This is how we can best do our jobs, person to person. … We have to pay attention to that and not lose it because of COVID.”

The speedy trial debate

A likely point of contention for the courts as the pandemic lingers — particularly as jury trials are suspended — is a defendant’s constitutional right to a speedy trial.

In New Mexico, the time frame prosecutors have to bring a case to trial is not specific. It’s based on a number of factors, including the complexity of the case, the reason for a delay in taking a case to trial and the impact of the delay on the defendant.

Lawyers who believe their clients’ speedy trial rights have been violated must convince a judge the delay has been egregious enough to warrant a dismissal. For his part, Serna said he doesn’t believe cases in his jurisdiction “will fall victim to any speedy trial issues, given that this is an unprecedented time and defense attorneys are also concerned about having trials right now.”

But Ball said the Public Defender’s Office isn’t waiving defendants’ speedy trial rights because of the pandemic.

“We will continue to fight that fight,” she said, “especially for our in-custody defendants.”

First Judicial District Chief Judge Mary Marlowe Sommer said in an email it’s hard to gauge the impact the pandemic has had on the timing of jury trials.

“Every judge handles their trial venue differently as to when trials are definitively set and definitively go,” she wrote. “So, I cannot say what impact it has on each judge’s trial docket. 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.”

Pepin said that if an issue does arise, the state Supreme Court’s order suspending jury trials until next year does include a provision that allows proceedings to be held with the authorization of the chief judge from each district, to avoid cases being dismissed on speedy trial grounds.

Since COVID-19 began wreaking havoc in the court system, both prosecution and defense attorneys have filed motions opposing some pandemic-related provisions. They’ve argued masking requirements prevent jurors from being able to see witnesses’ faces well enough to judge their credibility; that pandemic fears skew the makeup of juries; that the lack of courtroom seating violates defendants’ rights to a public trial, among other things.

Pepin acknowledged these arguments could result in a run on the state Court of Appeals, though he added appellate judges could dispense of multiple appeals at one time by making rulings that apply to all similar complaints on a topic.

Baur and Ball said the pandemic has shined a spotlight on debates within the system that existed before March but are now paramount because of COVID-19.

Chief among them: Should jails be populated with defendants charged with minor crimes, such as low-level drug possession?

“This uptick [in virus cases] serves as a reminder that we need to be more diligent about that detention center revolving door,” Ball said, “and question whether the health risks are worth bringing a person charged with a victimless crime to jail.”

(3) comments

GABE MACKELMORE

I just want to commend them for doing there jobs despite the threat of Covid 19. It's not easy to go out and do your job knowing that you can get exposed to the Virus and bring it home to your family! I'd like to salute the staff and lawyers of TheBennettLawGroup.com who are my Santa Fe attorneys . Thanks and God bless you all!

Chris Mechels

Public Defender Bauer misses an opportunity here, the opportunity to press for using Criminal Informations/Preliminary Hearings to charge defendants, which offers the defendants more rights than the secretive Grand Jury process.

We are left to wonder about Bauer's motives, other than collecting his salary of course.

Chris Mechels

It seems Covid has some good effects!! DA Marco Serna has stopped using the Grand Jury to indict defendants, and is using Preliminary Hearings, and this offers the defendants more rights, a good thing. The DAs in New Mexico use Grand Jury indictments BECAUSE it offers defendants less rights, and is cheap and dirty. Serna also uses the Grand Jury only in SF and RA county, not in Los Alamos, so those in Los Alamos have more rights.

We should STOP using the Grand Jury for criminal indictments, because its unjust, and secretive, and used by DAs to "railroad" defendants". Going forward, having learned to live without Grand Jury criminal indictments, we should use ONLY Preliminary Hearings, also known as Criminal Informations.

Marco Serna could serve justice by making a commitment to that end, and using his influence with the incoming DA to establish that practice. The DA's use of the Grand Jury in NM is injustice, not justice.

Our media should write about this, but of course they don't. Too busy playing politics.

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