By Steve Hansen
QCS Managing Editor
District Judge Albert Mitchell reaffirmed Tuesday that he will hold a hearing to determine how well suspect Tony Day, 15, would respond to behavioral health treatment before his murder case goes to trial.
Day is charged with murder for the Nov. 26, 2012, slayings of his adoptive mother Sue Day and sister Sherry Folts in their Tucumcari home.
Mitchell announced his decision after a hearing on a request from the New Mexico Children Youth and Families Department to hold the murder trial before amenability to treatment is determined. CYFD filed the motion after Mitchell had granted a joint motion from prosecuting and defense attorneys to determine amenability first.
At Tuesday’s hearing, CYFD’s attorney Ann Halter argued that even though holding the amenability hearing before the murder trial would be better for both the prosecution and defense, it violates state statute, which, she said, states unequivocally that trial occurs before the amenability hearing.
Defense attorney Jeffrey Buckels said that statute merely presumes the order of proceedings without stating outright that they must occur in that order. It is only important, Buckels argued, that both proceedings occur in the case of a young offender.
In addition, Buckels said, it would be wrong if Day “knew less about the consequences of his plea than he would if he were an adult,” which would be the case if trial came before the amenability hearing.
Buckels also said that granting CYFD the right to intervene in this case could establish a precedent in which “there would be three sides” represented in criminal matters involving youthful defendants, not just prosecution and defense.
While courts and the law agree that children are “different” from adults under the law, “a child should not have lesser rights than an adult” as a defendant in a criminal matter, Buckels argued.
Assistant District Attorney Kirk Chavez said the court should consider not only the legal issues but the humanity of putting the victims’ family through the anguish of a trial only to find out at the end that the defendant would be sentenced as a juvenile. Both the victims and the defendant, he said, deserve to know the sentencing scheme before a trial occurs.
Family members of the victims attended the hearing. Mike Day, Tony Day’s adoptive father and husband of Sue Day, said last week he wants Tony Day to be tried and sentenced as an adult
Both Chavez and Buckels agreed that CYFD doesn’t “have a dog in this fight,” in Chavez’s words. Buckels said CYFD has “no potential injury” resulting from a reversal of the state’s norm in the order of proceedings.
In reaffirming his earlier decision, Mitchell said the legal arguments involved in the case were “very complex,” but agreed with the defense and prosecution that CYFD should not have standing in the case. He then ordered CYFD to begin compiling a report on whether Day is amenable to treatment. That report will be considered in the hearing.
In similar cases, Mitchell said, the court has been granted wide discretion when young defendants are involved. “I am using that discretion,” he said.
District Attorney Tim Rose said the decision was fair and just, agreeing with Buckels that Day should not be forced to enter a plea without full knowledge of possible consequences.
Buckels said the judge’s decision was “the reaction I expected.”
“CYFD did not offer any good reason” not to hold the amenability hearing first, he said.