NMSC Affirms Order of New Trial After District Court Has ex parte Contact with Jury


The New Mexico Supreme Court published opinions in two criminal cases earlier this week: State v. Aguilar, a direct appeal, and State v. Yancey, on certiorari from the court of appeals. In this post, I look at Aguilar, a unanimous opinion written by Justice Bacon.

The facts are simple enough. The jury, confused about the instructions, initially submitted a set of verdict forms with contradictory findings. The judge, without the involvement of the attorneys, instructed the jury to reconsider to be sure that it understood the instructions. The jury then changed the forms to remove the contradiction. The judge dismissed the jury before any of the attorneys were aware of this interaction.

The judge did not tell the attorneys about this interaction until the following day. The defense attorney moved for dismissal of some counts or, alternatively, a new trial. The judge granted a new trial on all charges except for the two on which the jury had returned an unambiguous not guilty verdict.

Because this was a murder case with the potential for a life sentence, it could be appealed directly to the supreme court. Both the State and the defendant appealed. The State argued that a new trial was not necessary, and the defense argued that a new trial would violate double jeopardy.

Direct appeals frequently involve issues that the Court would have declined to hear had it had discretion to do so. For example, the Court would not often agree to review a sufficiency of the evidence matter that the court of appeals had already decided. There is little point in the Court taking up issues that are well-settled in cases where it has the discretion to allow the court of appeals ruling to stand.

This case likely falls into that category. In a relatively straightforward application of existing law, the Court makes two decisions to dispose of the case. First, given that the district court was prohibited from talking to the jury outside the presence of the attorneys, the Court held that the district court did not abuse its discretion by ordering a new trial. Second, the Court determined that jeopardy did not attach until the corrected verdict was submitted, which effectively disposed of the defendant’s double jeopardy arguments.

At least going by the record, the judge’s discussion with the jury in this case might strike some people as inconsequential, and ordering a new trial might seem excessive. But this is the right result. Especially in the criminal context, the system is designed as much as possible to remove the possibility of prejudice and maximize fairness. Here, the ex parte contact with the jury introduced a possibility of unfairness that the district court was right to correct by ordering a new trial.

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