Copyright Â© 2018 Albuquerque Journal In 55 days, Nehemiah Griego, who at age 15 shot and killed his parents and three of his siblings at their South Valley home, will be released free and clear from juvenile custody as he turns 21 â unless an appeal succeeds in reversing a judgeâs decision to sentence Griego as a juvenile.
Arguments in the case were heard Wednesday, with Court of Appeals judges expressing concern about how such a reversal would work, especially considering Griegoâs fast-approaching release.
The appeal focuses on how Childrenâs Court Judge John Romero decided to send Griego to juvenile prison until the maximum age 21 instead of adult prison, where he could have faced up to 120 years. Both were options under a plea agreement which took Griegoâs first-degree murder charges off the table.
Griegoâs plea deal opened the door to a juvenile sentence if the judge determined that he could be sufficiently rehabilitated in juvenile facilities.
The state Attorney Generalâs Office argues that in sentencing Griego as a child, Romero failed to consider both the heinousness of the crime and testimony from doctors who said Griego could not be rehabilitated by age 21. They want the decision reversed and a determination as to whether Griego âtruly has been or can be rehabilitated,â a spokesman said. If not, then they want him sentenced as an adult.
âThe real question is can he be fixed by the time he is 21?â stateâs attorney John Woykovsky said during Wednesdayâs hearing.
Griegoâs legal team argues the state had its chance to prove Griego couldnât be rehabilitated and it didnât protest the judgeâs ruling when he made it.
âIt was a horrible crime, he used more than one gun, five people ended up dead. But everyone agrees that he was still rehabilitatable, and while they disagreed on the amount of time it would take âŠ they all agreed he should not go to prison,â said Theodosia Johnson, public defender on the appeal.
His team also says that prosecutors declined an offer that would have put in place some sort of probation after Griegoâs release at age 21 and an offer that would have required an assessment of Griego before his release in order to open options for further state oversight.
But the option for further state oversight of a juvenile release at age 21 isnât clear.
Most in the state believe the law prohibits such sentencing, commonly called dual or blended sentencing.
âRight now judges basically have two choices with youth who commit incredibly horrific crimes. They can send them to the adult system, which could mean sending a 14-year-old to prison with 50-year-old men. Or they can find them amenable to treatment, and they are sent to juvenile system where they are released, no matter what, at 21 with no supervision, no one following them when they get out,â said Children, Youth and Families Department Secretary Monique Jacobson.
Her agency has pushed to get the state to adopt dual sentencing. Legislation was introduced in 2016 and 2017 but failed to get the necessary full votes.
Attorney General Hector Balderas is hoping the state will eventually approve dual sentencing, but until then, he says, the system is bound in black and white, leaving judges without reasonable options.
âThere needs to be some mechanism for a further reviewâ by a judge before a juvenile offender is released, Balderas said. âAge 21 should not be some magic cutoff.â
Dual sentencing in other states, such as Missouri, allows judges to give both a juvenile and adult sentence or a juvenile sentence followed by probation. If the offender does not meet requirements or rehabilitation in juvenile prison, he or she can be transferred to adult prison. Or if the offender is released from juvenile prison but violates probation, they can be sanctioned or provided more oversight.
âWe also have a group of youthful offenders who are saying âI get back out at 21 and I donât have to participate in programming (counseling and classes),'â Jacobson said. âThey say right out to me, âIf you arenât going to let me out early, then there is no reason for me participating in programming.'â
Opinions among defense attorneys vary. Some argue it increases the likelihood of more dual adult sentences as judges are released from the burden of sending a teen into adult prison.
In Griegoâs case, his public defender, Stephen Taylor, said he offered dual sentencing-type options to prosecutors, who declined them.
He said not everyone interprets state law as barring that option. âNothing says you can, but nothing says you canât, either,â he said.
Taylor said he offered an agreement to some sort of probation after Griegoâs release at age 21 and an agreement to have an evaluation of Griego close to his release date as a check-in to see if further oversight was needed. He said these offers were declined.
Ultimately, he said, it was prosecutors who approved the plea agreement that led to Griegoâs sentence as a juvenile.
Speaking to reporters after Wednesdayâs hearing, Balderas, whose office filed the appeal, said that prosecutors with the District Attorneyâs Office never should have allowed that plea deal.
âItâs an unfortunate situation, we believe that there are two critical errors. The first is that the District Attorneyâs Office should have never pled this case down from a first to a second degree, we wouldnât be in this position. And secondly that there were horrific and violent acts that should have been considered in the deliberation of this case and they were not,â Balderas said.
Kari Brandenburg, who was district attorney at the time the deal was made, said Wednesday that she did not recall all of the details of the agreement and did not have access to the case file. But she said prosecutors did what they thought was best at the time. They never expected a judge to find Griego amenable to treatment.
âWe did not think, based upon the evidence, that the court would do what the court did,â she said.
A spokesman for current District Attorney RaĂșl Torrez would not comment nor allow Journal reporters to interview the prosecutor who handled the case, who still works in that office.
Bernalillo County Sheriffâs Office officials said at the time of the killings that Nehemiah had been planning the shootings for days.
He first shot his mother, Sarah Griego, and 9-year-old brother, Zephaniah, with a .22-caliber rifle at around 1 a.m. on Jan. 19. Then he went into his younger sistersâ room and shot Jael, 5, and Angelina, 2, according to sheriffâs deputies.
After that, he waited for his father, Greg Griego, a former pastor at Calvary Chapel, to return home from an overnight shift at an Albuquerque homeless shelter. He killed his father with a different rifle.
Vanessa Lightbourne, one of Griegoâs surviving sisters (who were not at home during the shootings), said Wednesday that she still believes her brother is a danger to society and to her family. âHe murdered five people,â she said. âFor him to do that, I donât think anybody can come back from that.â
Lightbourne said she has since moved out of the state and is going to school. She hasnât spoken to Nehemiah in three years.
She said she doesnât believe her brother has taken sufficient steps toward rehabilitation and she wants him to remain behind bars.