Supreme Court denies motion in Day case

By Steve Hansen

QCS Managing Editor

The New Mexico Supreme Court on Thursday denied the New Mexico Children, Youth and Families Department’s request for a hearing on a motion that would have reversed the order of proceedings in the Tony Day murder case, made CYFD a party to the case like the prosecution and defense, and suspended all steps toward advancing the case to trial.

Tony Day, 15, is charged with first-degree murder in the deaths of his adoptive mother, Sue Day, and sister, Sherry Folts, on Nov. 14, 2012.

Because of Day’s age, 14 at the time of the slayings, court proceedings are scheduled in two phases–the trial to determine guilt or innocence and a proceeding to determine whether Day can be helped by a behavioral health treatment program, according to New Mexico statutes.

In August, Tenth Judicial District Judge Albert Mitchell granted a motion filed by both Tenth Judicial District Attorney Tim Rose and Jeffrey Buckels, Day’s defense attorney, to hold the hearing on Day’s ability to respond to treatment before the trial to determine guilt or innocence. New Mexico statute says the determination of guilt or innocence is held before the “amenability to treatment” phase, but the attorneys and Judge Mitchell agreed that this apparent presumption does not mean this order of proceedings is required.

If the amenability proceeding concludes Day can be helped by treatment, he is likely to be sentenced as a juvenile and will likely be released from custody when he reaches 21, Rose said. If the conclusion is that Day would not respond to treatment, he may be facing up to 60 years in prison without parole, Rose said, with a maximum sentence of 30 years for each slaying.

Both the district attorney and the defense attorney agree that the outcome of the amenability hearing could result in a guilty plea that would avert a trial in the case.

Rose has said avoiding a trial would relieve the victims’ family of the burden of recalling and retelling the horrific details of the slayings.

New Mexico is among very few states that seem to require guilt or innocence to be determined before amenability to treatment, both attorneys have said.

In several motions filed since the judge’s decision in August, however, CYFD, though attorneys Ann Halter and Jennifer Saavedra, CYFD’s general counsel, has argued that the law indeed requires the determination of guilt or innocence to occur before the amenability hearing.

On Dec. 17, after a hearing on CYFD’s motion to reverse the order of proceedings, Mitchell stood by his original decision. Mitchell also ordered CYFD at that time to begin examining Day for a determination of his ability to respond to behavioral health treatment.

CYFD’s request for an order from the state supreme court was made on April 4.

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