Mark Hice

Mark Hice, right, accused in the October 2018 shooting death of 18-year-old Cameron Martinez on a highway north of Española, during a September hearing.

State District Judge Maria Sanchez-Gagne has declined a joint request from prosecution and defense attorneys in an upcoming murder trial to test COVID-19 protocols in a mock trial before the actual proceedings open July 15.

Mark 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’s trial will be the first the First Judicial District has held since jury trials were suspended in the spring due to the COVID-19 pandemic.

Chief Deputy District Attorney Blake F. Nichols argued Tuesday the U.S. Supreme Court and local emergency response teams have recommended courts conduct a “dry run” of safety precautions before resuming trials.

He said the high-profile Hice trial — expected to last three weeks in the historic courthouse in Tierra Amarilla — should not be the test case for the new procedures, which include mandatory masks, social distancing between participants and specific patterns of movement to avoid contact between participants.

“We don’t want this trial to be a guinea pig for whether or not this is going to work,” Nichols said, though he did not provide details about what a dry run would entail.

But Sanchez-Gagne said during a hearing Tuesday there isn’t enough time to test the new rules, which were published July 2.

The judge also declined the state’s request that four key witnesses in the case be allowed to testify by video.

Nichols argued three of the witnesses be allowed to testify remotely because they would be more seriously affected if they contracted the virus, and a doctor should be allowed to testify remotely because the state Office of the Medical Investigator has instituted a policy prohibiting its employees from traveling.

Hice’s defense attorney, Sheri Raphaelson, “absolutely opposed” any witnesses not testifying in person. She said her client has the right to confront witnesses and “to look them in the eye and have them look him in the eye.”

“That can not happen unless these people are in the courtroom,” Raphaelson said, adding that if the court was asserting the courthouse was safe for the rest of the participants, it should be safe for the state’s witnesses as well.

“Either it’s safe to enter the courthouse or it’s not safe to enter the courthouse,” Raphaelson said. She noted that if the court found participating in the trial was not safe for certain witnesses, it would be “an acknowledgement it is not safe for any of the rest of us to be in the courthouse.”

Nichols said the state already had agreed to exclude jurors with certain health concerns from performing jury duty during the pandemic, which was essentially admitting there was some risk to participants.

Sanchez-Gagne told Nichols if he and Raphaelson could come to an agreement allowing those four witnesses to testify remotely, she would consider it. Otherwise, unless the state wanted to excuse them from testifying, they would be required to take the stand in person.

The judge said jurors and other participants could be assured the court’s plan for mitigating risk during the trial — including enclosing the witness stand in quarter-inch-thick glass — will “keep all parties safe during this proceeding.”

Sanchez-Gagne also considered a last-minute motion filed by prosecutors Tuesday asking the nine victims in the case — including the parents of Cameron Martinez, three people who survived being shot and four others who were shot at but not struck — be guaranteed the right to attend the trial as is required by state and federal law.

While acknowledging the court’s plan originally only identified five seats would be available for the public, including victims and media, the judge said the court would “try” to move chairs around to accommodate the victims if it were possible to do so while still adhering to the state Supreme Court’s edict that requires a distance of 6 feet between all parties.

The court has offered to show the trial on televisions outside the courtroom for viewing by people who couldn’t be seated. Dozens of people have packed the courtroom for hearings leading up to the trial over the past year and a half.

But District Attorney Marco Serna wrote in an email, “No one would suggest that a defendant watch his trial via closed-circuit TV. We are hopeful that our victims won’t have to either.”

Jury selection in the trial is set to begin Monday.

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