LAKE ANDES — Between unresolved motions and the logistical difficulties COVID-19 precautions would add to a jury trial, parties agreed Wednesday afternoon that the previously scheduled June trial date was too soon for Amanda Hernandez to be tried for the death of her 3-year-old daughter last August.
Judge Bruce Anderson, appearing by video call, told those attending Hernandez's hearing at the Charles Mix County Courthouse that while nontraditional options are being explored to ensure prospective jurors' safety during the COVID-19 pandemic, the trial will not be officially rescheduled at least until another hearing is held to address Hernandez's bond.
Hernandez, 24, has been held at the Charles Mix County Jail for nine months since being arrested in Wagner and charged with second-degree murder, first-degree manslaughter, aggravated assault and abuse of or cruelty to a minor after her daughter, 3-year-old Aayana Hernandez, was found dead in the house where the two had been living with several other people.
Hernandez's lawyer, Timothy Whalen, requested at Wednesday's hearing that Hernandez's $100,000 bond be reconsidered in light of her trial being delayed. Though Hernandez previously signed a waiver of her right to a speedy trial within six months, Whalen said that was done before the current pandemic.
"We're seeing throughout the United States that hardened criminals are being let out of facilities daily that my client doesn't hold a candle to," Whalen said.
Anderson said a bond hearing will be held at which he wants to speak to Hernandez's grandmother, who Hernandez would tentatively be staying with in Faulkton if released on bond pending trial. Counsel will be responsible for collecting information such as background and criminal histories of everyone in that household to be considered at the bond hearing.
Whalen and Assistant Attorney General Katie Mallery were also tasked Wednesday with coming up with a list of questions to be used to collect data on how the pandemic has affected jury pools across the state in order to determine how the trial will need to be modified. Anderson said in order to keep space between jurors, the trial could be held in a high school gym or a local theater, potentially projecting enlarged video of witnesses speaking to make sure all jurors could see what was happening.
"I don't know what the answers are," Anderson said, noting he's requested the help of a presiding judge's subcommittee to investigate possible solutions.
Also addressed Wednesday were Whalen's requests to look at documents and hire an expert to support a third-party perpetrator defense. Mallery argued that releasing the records, which reference another child living in the Wagner house around the time of Aayana's death, was a violation of privacy. Anderson said Hernandez's right to a fair trial outweighed privacy interests and that Whalen would be allowed to review the requested documents at the Charles Mix County State's Attorney's Office only if they are first approved by him as discoverable.
The defense's request to hire an expert was partially granted, with Anderson approving a $4,000 cap for the expert to provide a preliminary outline of proposed testimony, which will then be considered at another hearing and evaluated as part of Whalen's motion to allow third-party perpetrator evidence. Anderson called bringing in an expert to comment on a potential third-party perpetrator "uncharted territory" and said he hasn't found a case that's set a precedent on it.