March 17, 2020

NM Supreme Court orders further COVID-19 restrictions for state courts

Andy Lyman

The New Mexico Supreme Court

The New Mexico Supreme Court announced Tuesday further restrictions for court proceedings across the state. 

The court’s updated order, which will go into effect immediately, also suspended all trials that have not already started until April 30. In a statement, New Mexico Supreme Court Chief Justice Judith Nakamura said the order will help preserve the integrity of the justice system while also providing safety from COVID-19, a disease from the coronavirus.

“The precautionary measures imposed by the Judiciary today will provide additional safeguards for all New Mexicans while allowing necessary court functions to continue,” Nakamura said.

But she said it is also imperative the courts remain open.

“Especially during a public health emergency, courts must not close because they deliver vital services required in our justice system to ensure community safety,” Nakamura said.

Last week, the state’s high court issued an order to hold off on civil trial, limit jury pools to 25 people and minimize the number of incarcerated defendants in court buildings. 

The new restrictions come two days after the state’s Law Offices of the Public Defender called on the court to suspend all jury trials for 30 days and expeditiously release incarcerated defendants who do not pose a risk to the public. 

Just ahead of the order on Tuesday, Chief Public Defender Ben Baur spoke with NM Political Report and said his biggest concern in light of the COVID-19 pandemic is limiting the spread of the disease to other inmates, attorneys and court staff. 

“We have a lot of people going through the court system: Our lawyers and staff, the court staff, members of the public,” Baur said. “We just have to hit pause and try to get as many people out of custody as possible.”

Baur said his office has already been working with judges and prosecutors to limit in-person meetings by using video conferencing. 

Baur also said rapid changes and developments regarding the presence of COVID-19 in New Mexico means courts, defenders and prosecutors have to make communication a priority. 

“There’s a guy in Santa Fe county who is symptomatic, that’s different than it was yesterday,” Baur said on Tuesday. “Tomorrow there might be something else.” 

Baur said he would also like to see law enforcement officers opt for citations for minor offenses as a way to curtail the amount of people being booked into jails—something not included in Nakamura’s order.

The added restrictions also come a day after Bernalillo County’s district attorney and the New Mexico District Attorneys Association called for more restrictions aimed at limiting the amount of people going in and out of court buildings around the state. 

In a letter to the state Supreme Court, 2nd Judicial District Attorney Raul Torrez asked for the high court to suspend all proceedings involving defendants who are already out of custody for 45 days, waive a rule requiring felony cases to start within a specific amount of time and to support remote meetings and hearings when possible. 

“Aggressive steps now to increase social distance and avert non-critical hearings in court will protect our employees, families, and larger community,” Torrez wrote. 

Baur said there are some differences between his request and Torrez’s, but that they both have the same goal: to limit the spread of COVID-19.

“Look, these aren’t differences,” Baur said. “It’s really just, ‘Let’s get a handle on things.’”

And while the state’s District Attorney’s Association’s take on the matter mostly tracks with what Torrez and Baur were asking for, the association made a point in its letter to the state Supreme Court to oppose the release of all defendants.

“NMDAA opposes the release of ALL defendants pending trial for non-violent offenses or

serving sentences for non-violent offenses as proposed by the Law Offices of the Public

Defender (LOPD),” NMDAA President and 5th Judicial District Attorney Dianna Luce wrote. “Further, NMDAA adamantly opposes the LOPD’s request that police powers

of arrest for non-violent offenses be suspended as a threat to public safety and the orderly

administration of justice.”

Baur said he is well aware of the concern for public safety, but added that each defendant will still get their day in court. 

“It doesn’t mean people won’t be held accountable, but we can’t make the situation worse and that’s what is going to happen,” Baur said. 

Gary Mitchell, a high profile criminal defense attorney and the president of the ACLU of New Mexico, is more than well versed in constitutional rights for criminal defendants. But he said right now the state’s court system needs to be more focused on keeping everyone involved as safe as possible. 

“People have a constitutional right to a trial by jury,” Mitchell said. “Indeed that’s correct, but there’s no reason to think that a 30-day moratorium on jury trials would hurt, either constitutionally or from a health perspective.”

Mitchell, who is also the chairman of the Lincoln County Medical Center Board, said now is the time to consider the advice of medical professionals. 

“When the expert doctors and scientists are telling us, ‘Here’s what you need to do,” we should be doing that in the court system,” Mitchell said. “There’s no two ways around it.”

Mitchell said he would also like to see defendants who are not a risk to the public be released from jail and for judges to temporarily halt docket calls. 

Docket calls are when a judge has a long list of defendants to hear from. Those cases can range from traffic violations to murder charges. Mitchell said those docket calls create court rooms and hallways filled with defendants, lawyers and family members. That, Mitchell said, is a breeding ground for viruses. 

“Think of courtrooms like bus stations,” Mitchell said. “They’re nothing but petri dishes for the coronavirus.”

Correction: A previous version of this story incorrectly stated how long trials were suspended.