Sluggish Justice

Santa Fe defense attorneys and prosecutors grapple with lingering, pandemic-driven jury trial backlog

Robert Serrano was arrested on suspicion of raping a child nearly four years ago and indicted on felony counts in late 2018. The 59-year-old man’s trial was set for July in First Judicial District Court in Santa Fe, but it’s been pushed back to September because he was exposed to COVID-19.

His high-profile, anticipated trial is one of many throughout the state that’s been delayed, after the New Mexico Supreme Court ordered the suspension of criminal and civil jury trials, first from March 2020 to July 2020 and then again from November 2020 to February 2021.

There’s been a significant decline in jury trials in the First Judicial District—which serves Santa Fe, Los Alamos and Rio Arriba counties—but not as severe as in some other districts, namely the Second Judicial District, serving Bernalillo County.

In fiscal year 2019, there were 47 criminal and civil jury trials in the First, according to data the Administrative Office of the Courts provided to SFR. The next year, the total dropped to 32. Fiscal year 2021, running from July 2020 to June 2021, saw a mere 22. That compares to a reduction from 136 jury trials to 22 jury trials during that timespan in the Second.

Criminal defense attorneys say the dip, while initially necessary to slow the spread of the virus, has violated defendants’ constitutional right to a speedy trial. Meanwhile, the First Judicial District Attorney’s Office says the reduction hasn’t resulted in more plea agreements or in the state losing many violent criminal cases, although delays are challenging.

Since jury trials resumed at the start of this year, the First Judicial District Court has been limited to two courtrooms for 10 judges by the state Supreme Court’s guidelines, which mandate 6 feet between everyone in the room, including jurors and attorneys and their clients.

The limitation means that during an average month, only a few jury trials are proceeding, and there’s evidence of the slowdown all over the courthouse. Cards taped to the floor include instructions for jurors: “Attention: Your mask must remain on at all times. Your mask must remain on the bridge of your nose at all times. Do not take your mask off for any reason, including to speak. You may briefly remove your mask to drink water, but it must immediately be put back on.”

Jennifer Burrill, vice president of the New Mexico Criminal Defense Lawyers Association and a public defender in Santa Fe, tells SFR the court is prioritizing the most serious felony cases with defendants who are in custody, so smaller cases that would normally be one-day trials aren’t getting scheduled.

Burrill says she and the team of five public defenders she supervises have about 680 open felony cases in their system.

Early in the pandemic, the state’s jail populations fell as prosecutors, defense attorneys, judges and law enforcement worked to keep low-level offenders out of custody.

During that time, Burrill’s team had fewer cases because police were making fewer arrests. But as the state reopened this year, their cases went back up. The case backlog and the courtroom social distancing guidelines mean many defendants aren’t being brought before juries under constitutionally mandated timelines, Burrill says.

“Part of the problem is the Supreme Court hasn’t been very open to seeing it as a speedy trial issue because they’re just saying, ‘Too bad, it’s a community health problem.’ It was an afterthought,” Burrill says. “At some point we’re going to have to figure out how long COVID is going to strip people of their constitutional rights.”

Asked for a response to Burrill’s comment, Arthur Pepin, director of the Administrative Office of the Courts, writes in an email to SFR: “Courts did suspend jury trials for a short time late in 2020 due to increased public health emergency restrictions on group gatherings. Safe criminal jury trials resumed in February and we’ve recently expanded in-person proceedings such as preliminary hearings and plea and sentencing hearings.”

Defense attorney John Day of Santa Fe tells SFR that on top of violating defendants’ right to a speedy trial, jury trial delays can cause a host of issues that make criminal cases more difficult to navigate.

“Passage of time affects criminal cases more than it affects civil cases because things like people’s memories change or fade, witnesses move away, witnesses die,” Day says. “The conventional wisdom is that delays like that generally benefit the defendant and make things more difficult for prosecutors, but that’s not always accurate.”

Chief Deputy District Attorney Jennifer Padgett Macias tells SFR that the office has been selective since jury trials resumed in February, taking only first-degree felonies before juries. She says a few cases have stopped and started, mostly due to coronavirus complications, which has been difficult for the District Attorney’s Office and the court’s schedule.

As an example, Padgett Macias points to Serrano’s case. Serrano was arrested in October 2017 on suspicion of criminal sexual penetration of a minor. Charges were dismissed two months later due to failure by former District Attorney Marco Serna’s office to prosecute.

A grand jury indicted Serrano in late 2018 and he was booked into the Santa Fe County jail in May 2020 for failure to comply with the conditions of his release. Serrano’s trial was scheduled for July but his COVID-19 exposure has led to a lengthy delay.

“A couple of days before jury selection was supposed to begin, a defendant [Serrano] couldn’t pass the court screening to get into the courtroom,” Padgett Macias says. “That’s an older case and obviously that one was adversely impacted just recently by the court protocols...The court lost an entire week because there wasn’t another case that could just pick up and go.”

Asked if there’s been an increase in plea agreements in an attempt to clear the case backlog, Padgett Macias says, “I think getting a case to trial under COVID hasn’t been a consideration for us to offer a plea, outside of standard guidelines.”

Padgett Macias says while there won’t be anywhere near as dramatic a drop in jury trials this fiscal year as there was last year, getting through the backlog of cases—which she couldn’t place a number on—”is going to be really hard with the number of cases coming in on a day-to-day basis.”

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