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Editorial: A need to know – keeping juvenile cases secret is wrong-headed

Sixteen-year-old Jeremiah De La Pena faces larceny and tampering with evidence charges in connection with the shooting death of an Albuquerque man in a crowded city park last week. De La Pena allegedly brought a gun he had stolen at a party to the park, where another teenager he was with used it to shoot Larry DeSantiago, 25.

Sergio Griego, 17, was charged with severely beating his grandmother last month.

Enrique Palomino and Matthew Baldonado were both 14 when charged in connection with the “mobbing” murder of local bartender Steve Gerecke.

And Josiah Montano and Frankie Sedillo, both 16, were arrested along with 14-year-old Frederick Jimenez last month for having firearms in a parking lot at Albuquerque High School. Witnesses said Montano was waving a loaded handgun out the front passenger window. There was another pistol in the glove compartment and a rifle in the trunk.

But if proponents of a proposed rule under consideration by the state Supreme Court have their way, court records in criminal cases like those involving the juveniles listed here would be automatically sealed – shut away from public view. Even the criminal complaints laying out the alleged offenses would be blanketed by a veil of secrecy.

While the records of juveniles charged with first-degree murder would remain public, all the cases cited above and the vast majority of all criminal juveniles cases involve a lesser charge and would automatically be sealed.

Sweeping change

Proponents of the new rule that upends years of practice include the Second Judicial District Court and defense and other lawyers who work with juvenile defendants. They argue that the proposed secrecy rule is consistent with a goal of not punishing “children” for their youthful transgressions by having those records open and publicly available. For example, attorney Shasta Inman says those records could make it difficult for a person’s chances later to “join the military, gain employment and otherwise become productive members of society.” Attorney Charles Peifer, representing the Albuquerque Journal and KOAT-TV, counters that members of the public affected by crimes have the right to follow the prosecution and outcome of those cases. “Sadly, we live in a time when juveniles are, with some frequency, accused of serious criminal conduct ranging from activities related to “mobbing” crime sprees where juvenile gangs roam victim to victim to a planned mass shooting at a school.”

Closer to home, as a parent, would you like to know that your high school student’s new friend got busted for having a gun on campus or dealing drugs? Or called in a shooting threat to the local high school? What if you were that student’s high school counselor? Wouldn’t it allow you to extend help to the accused?

Opponents of the proposed rule include the news media – the Journal, KOAT-TV, KRQE-TV and The New Mexican newspaper of Santa Fe among others – along with the District Attorney’s Office and the Foundation for Open Government. The Eleventh Judicial District has also expressed serious reservations.

Sealed records, open hearings

The judges of the Second Judicial District argue that since the hearings in such cases would still be open, that sealing the records balances the privacy of alleged juvenile offenders with the public’s right to know. First, it seems nonsensical that the Legislature would have intended open court proceedings in cases where the complaint and other records are sealed. In the practical sense, how would the public know when there is an open hearing if all notices of it are sealed? The more likely consequence, as expressed by reporter Wheeler Cowperthwaite of the Rio Grande Sun in Española, is the rule would “functionally close the entire juvenile justice system, even though the Legislature has mandated that it be open.”

Another argument advanced by proponents is that the new secrecy rule follows a state law enacted in 2003 and amended in 2005. It is important to note that it has been common practice for court records in juvenile criminal cases to be public – both before and after the adoption of that statute. What the Legislature did was designate certain juvenile records, such as psychiatric evaluations, as confidential. And the New Mexico Juvenile Justice Handbook explains that “the statute is not being construed to include legal records, such as pleadings, court orders, and transcripts.”

So attempting to bootstrap that to full-blown secrecy is a failed argument.

Shutting out crime victims

The office of District Attorney Raúl Torrez, meanwhile, points out that the rule conflicts with the state constitutional protection for crime victims, who are entitled to be informed of matters involving their cases – which could no longer happen if the files were closed. DA staff attorney Diana Garcia also says that while initial allegations such as an arrest could be reported by the news media, “the outcome of a case would be inaccessible.” That not only frustrates the public but could be harmful to the juvenile proponents are seeking to protect.

Another point worth noting is that the Legislature has put in place a mechanism for juveniles to have court records sealed after two years when certain conditions have been met.

And the courts need look no further than the state’s guardianship system to realize that something approaching complete secrecy – even if well-intentioned – promotes injustice and abuse. The courts have agreed that new transparency provisions in guardianships are an important reform.

What this proposal reflects, pure and simple, is a desire by proponents that the court enact, by rule, a sweeping public policy change. Pro and con arguments notwithstanding, that’s the role of the Legislature. Not the judiciary.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.