In the same opinion, the court cautioned the former Bernalillo County trial judge, Samuel L. Winder, who had shared his thoughts on the case on social media during and after trial
Court: Watching TV Not the Same as Confronting One’s Accuser
BY DAN VUKELICH
The New Mexico Supreme Court reversed a man’s first-degree murder conviction because a key prosecution witness was allowed to testify via Skype, which the high court said violated the defendant’s right to confront his accuser.
The high court on Monday also overturned a jury’s kidnapping conviction in the same case, saying the defendant’s alleged moving of the battered body of the victim the distance of a single parking space in 2010 did not constitute kidnapping. The court remanded the murder case against Thomas Truett to Bernalillo County District Court for retrial and dismissed the kidnapping case.
In the same opinion, the court cautioned the former Bernalillo County trial judge, Samuel L. Winder, who had shared his thoughts on the case on social media during and after trial.
Winder, a Republican, had sought appointment in 2015 to the Supreme Court to replace retiring Supreme Court Justice Richard Bosson. The nomination by Gov. Susana Martinez went to another Republican, Bernalillo County District Judge Judith Nakamura, who did not participate in Monday’s opinion.
In the otherwise unanimous opinion, the court found that Winder’s allowing an Albuquerque Police Department who had moved out of state to testify via Skype about key forensic evidence violated the defendant’s right under the Sixth Amendment of the Constitution to confront one’s accuser.
The court cited the late U.S. Supreme Court Justice Antonin Scalia, who rejected Skype testimony in a debate about the so-called “Confrontation Clause.”
“I cannot comprehend how one-way transmission . . . becomes transformed into full-fledged confrontation when reciprocal transmission is added. As we made clear in [another case] a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.”
Truett was convicted in the June 2010 murder of Guadalupe Ashford, whose body was found partially hidden behind some trash cans in an Albuquerque parking lot. Officials later concluded she had died from blunt trauma. Because of a 22-month delay in bringing the case to trial, Winder allowed an APD forensics officer who had moved away to testify remotely.
Winder unsuccessfully sought election to the seat seat to which he was appointed as a replacement. On the third day or trial, Winder used Facebook to inform his campaign supporters that he was embarking on his first-ever first-degree murder case. After its conclusion, he reported, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.”
On Winder’s use of social media, the court wrote: “While we make no bright-line ban prohibiting judicial use of social media, we caution that “friending,” online postings, and other activity can easily be misconstrued and create an appearance of impropriety.””Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.,” the court wrote.