Mistrial considered in Baby Favi trial. N.M. Supreme Court says hold off.

Justin Garcia
Las Cruces Sun-News

This article was updated on July 26 after a motion clarified the defense's position on a mistrial.

LAS CRUCES - Court filings reveal that the prosecutor and the case's judge wanted a mistrial declared in the aftermath of the Supreme Court's intervention over Lalo Anthony Castrillo's trial. But an order from the New Mexico Supreme Court stopped that idea in its tracks. 

Castrillo, 26, is accused of abusing and killing toddler Faviola Rodriguez in September 2018. On Monday, Castrillo's defense and prosecutors began a trial that lasted one day before the state Supreme Court issued a stay of proceedings. 

The three-year march to trial derailed the week before it was set to start when Assistant District Attorney Daniel Sewell failed to send over exhibits he planned to use to the defense and the court. 

Sewell said in a hearing Friday that he forgot to send an email that contained the exhibits. Sewell did send the exhibits the following day, after the deadline.

Third Judicial District Court Judge Douglas Driggers is pictured in this Sun-News file photo from Sept. 18, 2018. Court filings reveal that the prosecutor, defense lawyer and Driggers — who is presiding over the case of Lalo Anthony Castrillo — wanted a mistrial declared in the aftermath of the Supreme Court's intervention in the trial.

Third Judicial District Court Judge Douglas Driggers said it was too little too late and ordered all exhibits — including 911 calls, photos of Rodriguez's body and internet searches on Castrillio's phone — to be excluded from the trial. Prosecutors would have to rely on witness and expert witness testimony. 

But Sewell said that punishment was too severe. He said that Driggers had excluded evidence — not just exhibits — from the trial. That gave Sewell the opportunity to appeal the order excluding exhibits, Sewell said. 

More coverage:Supreme court orders stop to Baby Favi trial amid excluded exhibits

Driggers, on the other hand, argued that Sewell could still present the same information through witnesses, and that therefore the appeal was invalid. 

As Sewell and Castrillo's defense selected the jury and delivered opening statements, an order suspending the trial was brewing in Santa Fe. Shortly after the first day of the trial concluded, the state Supreme Court ordered the trial stopped. 

Now, a motion to clarify the Supreme Court's request for a stay in proceedings showed that the prosecution, the defense and the judge could agree on at least one thing. 

"It's unclear whether an order declaring a mistrial would be contrary to the intent of the (Supreme) Court's order staying further proceedings," Driggers' attorney, Assistant Attorney General Neil Bell, wrote in the motion. 

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Bell's motion added that some jury members were concerned that scheduling conflicts would arise if the trial continued much longer than three or four days. Bell also said that both prosecutors and defense attorneys agreed that a mistrial declaration was appropriate. 

The Supreme Court responded by saying that Driggers should not declare a mistrial or take any action in the case. The state's highest court also ordered that the Third Judicial District Court turn over transcripts of proceedings that led to this point. 

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Specifically, the Supreme Court ordered transcripts from hearings that took place on July 16, July 19 and July 20 before next Monday.

On July 16, Driggers and Sewell argued the merits of Dirggers' order to exclude exhibits and Sewell's notice of appeal. On July 19, a jury was chosen and attorneys gave their opening statements. On July 20, Driggers and the lawyers discussed the possibility of declaring a mistrial. 

In a motion, Driggers' attorney clarified that Castrillio's defense lawyer is taking no position on whether a mistrial should be declared. 

Justin Garcia is a public safety reporter for the Las Cruces Sun-News. He can be reached at or on Twitter at @Just516garc.