November 6, 2017

UNM lawsuit jury selection closed to public

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Andy Lyman

Second Judicial District Court in Albuquerque

A trial involving the University of New Mexico and its medical facility began Monday with jury selection. But after a decision from a district judge and a high ranking court official, no one from the public, including media, was allowed to witness the process of how or why each side selected or rejected jurors.

The case goes back to 2011 when Dr. Cynthia Herald filed a lawsuit against UNM Hospital and some of its administrators for firing Herald after she said a male doctor raped her. Herald and the male doctor were both residents at UNM at the time, but Herald was dismissed from the program shortly after she reported the rape to her superiors. UNMH has maintained from the beginning they kicked Herald out of the residency program for subsequent drug use while on the job as an anesthesiologist. Herald and her lawyers say it’s because she reported the rape.

There were no criminal charges filed against the male doctor.

The case was originally dismissed by state District Judge Shannon Bacon, but the New Mexico Supreme Court ruled the case could be reopened.

On the first day of trial Monday morning, the only people in the room were presumably Bacon, lawyers for each side and an unknown number of potential jurors. NM Political Report tried repeatedly to gain access to jury selection, or voir dire, but was denied on the grounds that the court room would be too crowded. Second Judicial Court General Counsel and spokeswoman Elizabeth Garcia cited the space issue as the only reason jury selection was not open.

“The Court expects a packed courtroom for this trial, especially Monday,” Garcia wrote in an email. “There is no room during the first day (Monday) for you during voir dire.”

NM Political Report first contacted Bacon’s office last week.

President of New Mexico Foundation for Open Government (NMFOG) Greg Williams issued a letter asking Bacon to reconsider after being contacted by NM Political Report about the issue.

“FOG urges the Court to reconsider this decision, as it would violate both Rule 1-104 NMRA and the First Amendment,” Williams wrote.

Rule 1-104 outlines when a court room can be closed, which is at a judge’s discretion. But Rule 1-104 requires a judge to file a motion and also allows members of the public to respond.

Charles “Kip” Purcell, an Albuquerque attorney familiar with media law and a former president of NMFOG, told NM Political Report jury selection is a “crucial” part of trials.

“Jury selection is thought by many trial lawyers as the most important part of the trial,” Purcell said.

Purcell added that there are times when jurors may feel uncomfortable publicly answering questions and judges sometimes clear courtrooms for such instances, but that a lack of space isn’t usually a reason to close a courtroom.

“As an attorney concerned about not only justice, but the appearance of justice, I would want the public to know that jury selection is conducted with integrity,” Purcell said.

Since the courtroom was closed Monday it’s still unclear if jury selection was completed on Monday or if opening statements are slated for Tuesday.

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