“I’m going to hand you a calculator, and I want to step you through a little bit of math,” the lawyer told the witness in the Vermelho courtroom.
What followed was a moment that comes rarely for a lawyer, where the witness’s testimony is at one stroke demolished.
The context is a preliminary injunction motion, brought under the First Amendment, against court administrators in New Mexico. They are holding back new civil filings, which reporters sift for news, while the clerks do clerical work.
That clerical work often takes a day or two and the delay makes the news stale, like stale bread.
On the other side, lawyers from the state attorney general’s office had entered into evidence a “snapshot” of data intended to minimize evidence of delay.
I looked at their numbers when we received the snapshot on Friday before the Tuesday hearing and thought something was wrong. A column of percentage calculations stayed right at 79% even as the underlying sums changed. The coincidence was odd.
So on Saturday our financial officer, Jimmy Shimabukuro, broke down the state’s numbers.
He found that the 79% figure had been entered by hand and was self-evidently wrong. It was supposed to be based on a division of two underlying numbers: total of new civil cases processed on the filing date over the course of a month, divided by total number of civil cases filed that month. Pretty basic math.
The underlying numbers were correct, Jimmy confirmed, but the simple act of dividing one by the other had been muffed.
In the magnificent federal courthouse in Albuquerque, where each courtroom is named after a river in New Mexico, my eyes widened slightly when I saw those same figures on the exhibit that was passed onto the counsel table by an assistant AG. We thought the mistakes might be caught before they were presented.
“You have 79 percent; correct?” asked John Edwards with Jackson Walker for Courthouse News.
“Yes,” answered Laura Orchard, the IT expert for New Mexico’s courts.
“Can you please divide the two numbers in that box and tell me what percentage you arrive at?” the lawyer asked, after handing her a calculator. The witness took quite a while to answer and it appeared that she was doing the division a second time.
“67 percent,” she finally answered.
“You agree the percentage is wrong on this exhibit?”
“It looks like it might be wrong, yes.”
He went down the column and asked her three times to do the math and three times she admitted the snapshot numbers were false.
The unenviable task of rehabilitating the witness fell to Assistant AG Nicholas McDonald.
“Is it your contention that those boxes are an accurate depiction of the raw data,” he asked.
Judge James Browning then commented: “Well, she just said the data is wrong, and now you’re asking is it accurate? And I guess I’m not sure where you’re going with this.”
The state’s lawyer gamely went on.
“Those percentages do reflect the raw data on the Excel sheet?” he asked.
“I can’t be sure at this point, because all of this was manually typed in,” said the witness.
“Okay. Thank you. No further questions.”
One might easily wonder why the numbers are so important. It is because they demonstrate how the administrators’ no-access-before-process policy violates the First Amendment right of access.
That traditional right, common throughout state and federal courts in the paper era, was manifested through a wood box that stood at the filing counter next to the intake clerk.
The intake clerk took a minute or two to bring in the new complaint and then put it in the wood box. A journalist then checked the box to see what new disputes had just been filed that day.
“Since time beyond memory, the press has reviewed new civil complaints when they crossed the intake counter in American courts,” said the Courthouse News complaint. “That was true throughout the nation and it was true in New Mexico. During the transition from paper to electronic court records, federal courts and many state courts kept that tradition in place. But a group of clerks abandoned the tradition. They withheld new electronically filed complaints until they were entered into the docket, delaying access and damaging the news."
The correct delay numbers support our simple request: “Please give back that which was taken away.”
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