State v. House2/24/1999
. A few days later Judge Allen recused himself from the case, and the Honorable Richard Blackhurst was assigned to the case.
{15} A second jury trial began in Taos County on November 7, 1994. Once again the jury announced that it was deadlocked nine to three in favor of conviction on the vehicular homicide counts. Journalists attempted to explain the non-verdict and recorded the reactions of the participants and the public. An order declaring mistrial was entered on November 30, 1994.
{16} The prosecution proclaimed its intention to seek a third trial. A newspaper article reported the reaction of a State Senator from Taos accusing the prosecutor of being obsessed with the case. Arguing that, because of extensive and pervasive pretrial publicity, it could no longer receive a fair trial in Taos, the prosecution, on November 30, 1994, moved for change of venue to Bernalillo County.
{17} In early December 1994, Judge Blackhurst recused himself due to his pending retirement and the case was eventually assigned to Honorable James F. Blackmer.
{18} House's attorney, on December 2, 1994, published an article accusing the district attorney of ignoring Justice and being controlled by a "lust for vengeance" in seeking a third trial. On December 16, 1994, in response to a motion by the prosecution, Judge Blackmer issued a gag order prohibiting the attorneys in the case from making substantive comments about the case in the media. House's attorney sought a writ of superintending control to vacate the gag order. In March 1995, at a hearing on the matter, we vacated the gag order. We later filed a written opinion explaining that the gag order was an unconstitutional prior restraint of speech. See Twohig v. Blackmer, 1996-NMSC-023, 11-28, 121 N.M. 746, 918 P.2d 332. Shortly after we declared the first gag order unconstitutional, the trial court, on April 24, 1995, issued a second restriction on public statements about the trial. Once again House's attorney objected but the matter apparently was not litigated.
{19} A few days after the first gag order, on December 5, 1994, House filed a "Defendant's Motion to Dismiss Remaining Charges For Prosecutorial Misconduct Cruel & Unusual Punishment & Due Process." Arguments concerning the efficacy of a third trial were aired by the media. On January 12, 1995, Judge Blackmer, after holding a hearing on the matter, denied House's motion to dismiss. After a hearing on the prosecution's motion to change venue, Judge Blackmer, on February 7, 1995, granted the motion; however, the new trial would not be held, as the prosecutors wished, in Bernalillo County.
{20} Two months later Judge Blackmer issued an "Order Changing Venue For Trial, and Order on Jury Selection in New Venue" which included an extensive analysis of the venue question. He concluded that a fair trial could be held in Doña Ana County, in Southern New Mexico, and ordered that House's third trial be held at that venue. See State v. House, No. CR-93-1693, slip op. (N.M. Dist. Ct. Apr. 5, 1995) (Order Changing Venue For Trial, and Order on Jury Selection in New Venue) [hereinafter Venue Order]. House responded, on April 21, 1995, by filing a petition for Writ of Superintending Control to this Court, challenging the refusal of the district Judge to dismiss the indictment after two hung juries, and challenging the change of venue to Doña Ana County. Five days later we denied the petition without prejudice. House v. Blackmer, No. 22,864 (N.M. Apr. 26, 1995) (Order denying Petition for Writ of Superintending Control and Request for Stay).
{21} Shortly thereafter, on May 5, 1995, the third trial began in Doña Ana County. This ti
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