By Steve Hansen
The state’s youth agency is appealing a district court decision to determine whether accused murderer Tony Day, 15, would respond to psychological treatment before he is tried for the slayings of his adopted mother and sister.
The appeal the New Mexico Supreme Court also asks that all activity on the case be suspended until the Children, Youth and Families Department gets a decision from the court.
Day was 14 in November 2012, when he is accused of killing his adoptive mother, Sue Day, and her adult daughter Sherry Folts, using a gun and knife in the family’s home near Tucumcari.
The CYFD filed its objections in the Supreme Court on Friday to conducting the “amenability to treatment” proceeding before the court determines guilt or innocence.
The responsiveness to treatment proceeding is required because of Day’s age at the time of the slayings, according to state law.
CYFD is appealing Tenth Judicial District Judge Albert Mitchell’s decision to hold the response to treatment proceeding before the trial.
Mitchell made the decision on Aug. 13. His opinion was in agreement with a joint motion from Tenth Judicial District Attorney Tim Rose and defense counsel Jeffrey Buckels.
Kirk Chavez, an assistant district attorney, said he is confident the Supreme Court will uphold the decision and keep the order of proceedings as the court has decided.
On Sept. 10, according to the appeal filing, Mitchell invited CYFD to submit an opinion on the order of proceedings. On Sept. 30, the filing said, CYFD submitted a motion asking Mitchell to reconsider his decision.
After several other filings were submitted by prosecutors, the defense attorney and CYFD, Mitchell held another hearing on Dec. 17. Mitchell then decided to let his original opinion on the order of proceedings stand, ordered CYFD to begin the amenability examination immediately, and decided CYFD did not have standing in the case.
CYFD asserts in its appeal that requiring it to perform the amenability examination before the murder trial would be ordering CYFD to break state law, which, CYFD says, would damage the agency. According to CYFD, the law firmly states adjudicating guilt or innocence must come before the amenability finding.
CYFD cites both the wording of the law and statements made in court cases involving the law that seem to establish that adjudication precedes amenability proceedings, according to CYFD’s appeal.
Rose and Buckels have argued the law presumes a trial on the charges will occur before a finding of responsiveness to treatment but does not require it. Buckels said the law only requires both proceedings are conducted in the case of a defendant as young as age 14.
Rose has said the amenability determination could result in a plea before trial, which, he said, would spare the victims’ family the ordeal of reliving the slayings in a trial.
According to the appeal, Mitchell invited CYFD to submit an opinion on the order of proceedings before making his decision in August.
“Despite the invitation,” the appeal document says, “the court found that the department has no standing as a party in the case.”