Threat of mistrial looms as day two of Baby Favi's trial ends

A defense lawyer called for a mistrial three times Tuesday as juror issues continue to plague the Baby Favi trial on day two. The jury also dropped to 12 members after a second juror was excused with cause.

The trial is the second in the case against Lalo Anthony Castrillo IV. Castrillo is charged with intentional abuse of a child, resulting in death. If convicted, he could face life in prison.

The delays in the trial follow 51 months of uncertainty prior. A pandemic, prosecutors failing to turn over exhibits promptly, a mistrial, intervention by the New Mexico Supreme Court, assigning a new judge, and resetting the case have contributed to the delay.

A second mistrial could be added to that list as the trial drags on.

Catch up on Day One:One juror excused, two more in question as Baby Favi trial begins in Las Cruces

'You all picked a terrible jury.'

Judge James Waylon Counts, who the state Supreme Court appointed to oversee the case and trial, expressed frustration Tuesday morning as debate raged about juror issues.

"You all picked a terrible jury," he said in jest. 

As of the publication of this article, two jurors have been excused with cause, while questions exist about three more. Before the trial, attorneys with both sides picked 14 jurors. Twelve would deliberate the case with two alternates in case of emergency.

The first juror was excused on Monday. She told the court that she had a close personal relationship with Baby Favi's father's mother, and that relationship would prevent her from being impartial.

The second juror was dismissed Tuesday. He said the cold temperature of the courtroom was triggering medical issues and preventing him from concentrating.

Further, he said he'd already decided about the case because he felt the defense was too aggressive when questioning Baby Favi's mother. Judge Counts disagreed with the juror's characterization of the questioning but excused the juror anyway.

Two jurors were excused. Four more questionable 

That left 12 jurors, four of which were besieged by questions.

One juror revealed in jury selection that she knew of Baby Favi's mother in high school but had no personal connection to her. While Castrillo's defense raised an issue with this, it came to nothing since they knew about it before the jury was seated and could've removed her then.

Another juror told the court he made eye contact with Baby Favi's mother in the court after the trial. A bailiff told the judge they might have exchanged a word or two and that security camera footage showed the interaction was brief. That issue also did not prove significant on its own.

But a third juror proved a more challenging problem. On Monday, the juror told the court she'd have difficulty finding childcare for her infant. She requested to be excused because, otherwise, she'd have to bring her baby to court. But the court did not dismiss her. Come Tuesday, she brought her baby to court. She told the judge she could get a family member to take the baby by 11 a.m.

At first, it wasn't clear if the same issue would delay or prevent proceedings for the rest of the week. However, the woman informed the court that she could get babysitting arrangements locked in for the rest of the week.

Another juror later complained about hearing "offensive" comments from a juror. The judge, relaying information from the bailiff, suggested the remarks were bothersome but not necessarily about the case.

It's unclear how all of this will affect future proceedings. The jury issues took half a day to resolve, and the remaining members said they'd be unable to deliberate into the weekend if it came to it.

Three calls for mistrial were tossed out

The juror situation also led to three calls for a mistrial from the defense.

Castrillo's attorney, Jose Coronado, said the sum of issues – especially those involving relations to the Baby Favi's family – could poison the jury's opinion.

"It's reasonable to conclude there's something going on with the jury," Coronado said.

The prosecution disagreed, saying the incidents were mere disruptions and the trial should continue.  

"Miraculously, we still have 12 jurors," Counts said. "And I don't think we have what we need for a mistrial."

Ultimately, Counts rejected Coronado's calls for a mistrial and allowed the trial to continue. 

Justin Garcia is a public safety reporter for the Las Cruces Sun-News. He can be reached at JEGarcia@lcsun-news.com.