Copyright © 2018 Albuquerque Journal
Clad in adult jail orange, Enrique Palomino was back in Children’s Court last week – more than three years after the night he was part of a mob of teenagers who broke into 11 houses and cars in the Northeast Heights, attempted to shoot one elderly homeowner, and continued their spasm of violence even after one of the youths gunned down 60-year-old Steve Gerecke in his driveway.
Palomino, now 18, was charged as a juvenile after his July 2015 arrest in connection with Gerecke’s murder and related crimes. He pleaded guilty to aggravated burglary, conspiracy, larceny and taking a motor vehicle. For the past several years, he has been confined to out-of-state treatment centers.
Historically, his criminal case file in Children’s Court would have been open to public inspection, save for certain mental health or treatment records. But last week that criminal file was deemed confidential by court officials, who refused a reporter’s request to see it.
The court cited a sweeping proposal under consideration by the state Supreme Court that would automatically seal the court files of thousands of juvenile delinquency cases filed each year in New Mexico. Most of the cases would involve minor offenses, but dozens would involve more serious crimes, such as second-degree murder, kidnapping and aggravated battery. The latter category is called “youthful offender.”
Palomino’s case is a preview of how the automatic sealing of cases would play out.
There was no explanation through publicly accessible court records as to why Palomino was in court, or why Children’s Court Judge John Romero recently agreed to put him on probation.
Given the blanket of secrecy, there was no way to tell through court files whether Palomino was ever actually released from custody or why he is now accused of violating that probation and is being held at the Metropolitan Detention Center.
During his brief time in open court, Palomino was described by a state Children, Youth and Families probation officer as a continuing danger to the community. But no one provided any details in court. And the criminal file wasn’t available publicly.
“Unless and until the Supreme Court rules otherwise, the records you are seeking cannot be released to the media,” stated Second Judicial District Court court spokesman Sidney Hill in an email to the Journal, which also sought other children’s court records.
The Supreme Court has set a Nov. 29 deadline for public comment on the proposal, which advocates argue is “important to protect a child’s right to privacy.” It’s the second version of a proposed rule change that drew controversy earlier this year, prompting the high court to suspend its implementation for further consideration.
A young offender is defined by law as “a delinquent child” age 14 to 18 who is prosecuted for a wide range of offenses, including second-degree murder, kidnapping and aggravated battery, as well as shooting from a motor vehicle, dangerous use of explosives, robbery, child abuse resulting in great bodily harm or death, and criminal sexual penetration.
State court records show the youthful offender category of crimes is on the rise. Some 77 juveniles in New Mexico were charged as youthful offenders last fiscal year, up from 46 charged statewide five years earlier, according to state court annual reports.
The proposal under consideration would not allow automatic sealing of juveniles charged as serious youthful offenders, which applies only to first-degree murder charges.
“By preventing public access (to records), we are encouraging and allowing the court system to operate essentially in secret where we have no idea how judges are dealing with juvenile crime,” said Albuquerque attorney Charles Peifer, who represents the Journal. “How is the public to form any judgment on how the system is operating? How is the public to know whether justice is being done in an individual case or a group of cases?”
In a July 29 letter to Chief Justice Judith Nakamura, a court-appointed Children’s Court rules committee stressed that “in this digital age, caution should be used when dealing with all of a child’s records. A mistake made in childhood leading to prosecution should not haunt a person for the rest of his or her life due to the documents being uploaded to the internet. Thus, this committee sees the importance of minimizing the lasting effects an open record could have on an individual.”
The chairwoman of that committee, Beth Gillia, declined a Journal request to discuss the proposed rule.
It’s unclear when the Supreme Court could decide the issue. Incoming state Supreme Court Justice Michael Vigil, who takes office Jan. 1, said in a Journal interview before he was elected Tuesday that he believes the proposal needs more work.
“If a child commits a heinous crime, they probably ought to vote to keep it unsealed. I would like to have a broader right to inspect (juvenile delinquency records) with more transparency,” Vigil said.
Gerecke’s widow, Vinnie Gerecke, is opposed to the automatic sealing proposal.
“We want the records to be open to everyone. It won’t necessarily be a deterrent, but it’s important for people to know where they (the offenders) came from and what they did. They’re making the presumption of innocence and naivety by teenagers who are much more savvy. They’re treating them like it’s another era.” Gerecke said all six youths involved in the “mobbing,” including the shooter who was tried as an adult and was sentenced to 25 years in prison, were repeat offenders at the time her husband was killed. There’s no way to confirm that through Children’s Court records, which are now off-limits to the public. The only records that are not sealed are those of co-defendants Christopher Rodriguez and Jeremiah King, who were sentenced as adults.
Veil of secrecy
In February, three teenagers made headlines when they were arrested outside Albuquerque High School after school police found a loaded rifle and two pistols, one a semi-automatic, in their vehicle. KOAT-TV identified them as Freddie Sedillo, Josiah Montano, both 16, and Frederick Jimenez, 14.
In September, a 19-year-old and two teens charged as juveniles were arrested after the older youth was accused of wreaking havoc in a neighborhood near Eubank and Paseo Del Norte by smashing into garage doors and speeding across lawns during an early morning joyride in a stolen truck.
There were 22 reports of damage. Some garage doors were crushed and some landscapes were damaged. Police were also investigating reports of possible gunfire from the vehicle. Those arrested were identified as Jose Campa, 19, who is facing a 57-count felony indictment in adult court, and two juveniles, Izaiah Moya, 17, and Jeremy Gurule, 16.
Though their arrest records were public via law enforcement, the disposition of the teens’ subsequent Children’s Court cases, including whether they were acquitted, released, put on probation or sent to detention is unknown by virtue of the decision by the Second Judicial District Court to bar public access to the records.
Albuquerque’s District Court in February wrote a letter signed by Chief Judge Nan Nash and Childen’s Court judges John Romero, William Parnall and presiding Children’s Court Judge Marie Ward supporting the proposed sealing rule in its initial form.
News media, open government advocates, the Bernalillo County District Attorney’s Office and one other district court challenged the proposal.
“If a kid is arrested for bringing a gun to school, then my question would be, ‘wouldn’t the community have a right to know how that matter is being handled? Why should something like that be kept secret?’ Because it’s a great matter of public concern to parents, to students and to the community,” said Martin Esquivel, an Albuquerque attorney who represents KRQE-TV and who is a former president of the Albuquerque Public Schools board.
Others disagree. Advocate David West in a letter to the Supreme Court countered, “The public may feel safer with access to these cases, but access offers nothing more than to allow the public to discriminate and further punish a juvenile offender.”
Current state law already permits juveniles to have their criminal records sealed under certain conditions, including when they turn 18. Under the law, “proceedings in the (sealed) case shall be treated as though they never occurred.”
Proponents of automatic sealing say interested parties could still petition a judge to open a file.
While the automatic sealing proposal would still permit open hearings in juvenile criminal cases, “the committee believes that preventing access to the courts’ written records would go a long way toward preventing a child’s information from finding its way to the internet,” said the letter from the Children’s Court rule committee to the Supreme Court.
Not shoplifting candy
In Palomino’s court appearance last week, there was no public calendar showing he was scheduled for a hearing. During the proceedings, there was no reading of the petition detailing the alleged incident that triggered his current incarceration.
Although his uncle sitting in the courtroom agreed to take Palomino into his home if he is released, the Bernalillo County District Attorney’s Office asked that Palomino be committed to detention until he reaches 21.
During the hearing, Maria Silva, a CYFD probation officer, told Judge Romero that one local residential treatment center had refused to admit Palomino.
“It was for the same reason the department had concerns and recommended commitment,” she told the judge. “It’s a good thing he was in the detention center when this last incident happened, because there was somebody there to stop him. If he does have an outburst, who’s going to stop him?”
Palomino’s attorney, Steve McIlwain, told the court the incident wouldn’t have occurred if CYFD had a suitable plan to transition Palomino back into the community.
Romero asked CYFD to continue searching for a treatment center for him. The judge also ordered Palomino held in custody pending a trial on the probation revocation, adding, “There’s always more to the story than what’s in the (petition).”
Peifer said he believes advocates are “well-meaning” and “they’re thinking about the kid who shoplifts candy in the 7-Eleven … They are not really thinking about this roving gang of murderers in the Northeast Heights. Or I hope they’re not thinking about them, but the (proposed) rule applies to them.”