(Court TV) — The following is a transcript of District Judge James Waylon Counts' sentencing of Cody Posey.

The comment that I've heard since the beginning of this case from members of the public and others, in fact since I've become a judge, is, "I wouldn't want your job." I take that to mean that people believe that the decisions I have to make are ... an exercise in unrestrained discretion without any guidance from the law.

But I have sworn an oath to know, follow and apply the law. The law of the state of New Mexico and not my personal whim or the tide of public opinion is the basis of my decision today.

First, I find that the respondent, Cody Posey, was born on October 9, 1989, and thus was 14 years old on July 5, 2004. Since the respondent was a juvenile at the time the offenses were committed, the New Mexico Children's Code is the controlling law in this case.

Story continues

advertisement

Second, the jury found the respondent guilty of murder in the first degree in count three of the indictment, in addition to other charges, but that is the one that is of greatest significance in the immediate part of this decision.

The state, on July 26, 2004, filed notice of intent to seek adult sentence, pursuant to Section 32A220 of New Mexico statutes. Since the respondent has been found guilty of murder in the first degree, pursuant to 32A23I3, the respondent is a youthful offender, and the court may invoke an adult sentence.

Section 32A220 sets out the criteria the court must follow in order to impose an adult sentence on a youthful offender. 32A220B requires the court shall make the following findings in order to invoke an adult sentence: One, the child is not amenable to treatment or rehabilitation as a child in available facilities, and two, the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

There has been no evidence or even argument that the respondent is eligible for commitment to an institution for children with developmental disabilities or mental disorders, and thus the court finds that the respondent herein is not so eligible.

As to the amenability question set out in 32A220B1, the court is required to consider the following factors:

• One, the seriousness of the alleged offense;
• Two, whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
• Three, whether a firearm was used to commit the alleged offense;
• Four, whether the alleged offense was against persons or property, greater weight being given to offenses against persons, especially if personal injury resulted;
• Five, the sophistication and maturity of the child as determined by consideration of the child's home, environment, situation, emotional attitude and pattern of living;
• Six, the record and previous history of the child;
• Seven, the prospects for adequate protection of the public, and the likelihood of reasonable rehabilitation of a child by use of procedures, services, and facilities currently available;
• And eight, any other relevant factor provided that factor is stated on the record.

Just to cover all of the bases, the court finds that the respondent has not previously been sentenced as an adult, pursuant to the provisions of 32A220, and thus there is no presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities.

Now as to the factors set out in 32A220. Factor number one: There is no offense in New Mexico law more serious than murder in the first degree. The court finds that this factor weighs against the respondent's amenability to treatment or rehabilitation.

Factor two: Murder in the first degree is, by definition, a willful, deliberate, and premeditated killing. This factor weighs against the respondent's amenability to treatment or rehabilitation.

Three: A firearm was used to commit the offense of murder in the first degree. This factor weighs against the respondent's amenability to treatment or rehabilitation.

Four: The offense was committed against a person rather than property, and the ultimate personal injury — death — resulted. This factor weighs against respondent's amenability to treatment or rehabilitation.

Factor number five: The court previously ruled that the respondent was more mature than the average 14-year-old for purposes of determining whether he could voluntarily waive his right to remain silent when questioned by law enforcement. The primarily basis of that ruling was the respondent's high intelligence, his understanding of the consequences of illegal behavior, and his understanding of the consequences of admitting to illegal behavior.

The court has received evidence that in many ways, the respondent was relatively immature. There was a lack of social interaction with peers outside of regular school hours, there was an isolation from family members outside of his immediate family, and the rural upbringing in general contributed to his lack of street smarts.

Many of the mental-health professionals, teachers, and members of his own family have noted that the respondent's behavior often demonstrated immaturity. On balance, this factor weighs neither for or against respondent's amenability to treatment or rehabilitation.

Factor six: Respondent has no prior record or previous history with the juvenile justice system. This factor weighs in favor of respondent's amenability to treatment or rehabilitation.

Factor seven: Sequoyah Adolescent Center is a facility available to the Children, Youth and Families Department to provide services for the treatment of violent juvenile offenders.

The court finds that the weight of the evidence received leads to the conclusion that respondent, at the time of the offenses, suffered from post-traumatic stress disorder and depression. Since respondent's detention, respondent has continued to suffer from PTSD.

The court is not convinced that the respondent has antisocial personality traits to the extent that they would render him not amenable to treatment or rehabilitation. The court is not convinced that the respondent has a conduct disorder that is to the extent that it would render him not amenable to treatment or rehabilitation.

The weight of the evidence leads the court to find that, in that PTSD and depression are relatively treatable conditions, and if so treated, respondent would be amenable to rehabilitation.

Facilities exist today in New Mexico which provide services and programs to treat respondent's mental condition, specifically the Sequoyah Adolescent Center. Additionally, there is evidence that the situational nature of the violence makes it less likely the respondent would pose a future danger to the public. This factor weights in favor of respondent's amenability to treatment or rehabilitation.

As to factor eight, the catch-all, I find no other factors which bore upon the amenability questions sufficient to factor into the court's consideration.

Considering all of the factors together, and weighing them against one another, I find that the state has failed to carry its burden of proof that the respondent is not amenable to treatment or rehabilitation as a child in available facilities. The court so finds, regardless of whether the burden is beyond a reasonable doubt by clear and convincing evidence or by a preponditure of the evidence.

Given such findings, the court has no discretion to impose an adult sentence. Although the New Mexico Children's Code is primarily focused upon rehabilitation, a disposition under the code does not mean that the child has avoided suffering a consequence of his actions.

A disposition under the Children's Code is not a finding that the killings were justified. The jury verdicts do not support the idea that the killings were justified. If the legislature wants adult sentences for every 14-year-old convicted of first-degree murder, they can change the law.

But as the Children's Code is now written, it starts with the assumption that children who commit crimes, even very serious crimes, should be treated differently than adults who commit crimes. In a limited number of cases, a judge can impose an adult sentence on a 14-year-old perpetrator, but only after the state proves that there is no realistic possibility of rehabilitation.

Since the court finds that there is a realistic possibility of rehabilitation through treatment, the court is restricted to the range of possible dispositions available within the juvenile system. I believe the most restrictive disposition available in the juvenile system is appropriate in this case.

Therefore, the court reaffirms the respondent's adjudications of guilt as to voluntary manslaughter in count one, second-degree murder in count two, murder in the first degree in count three, and tampering with evidence in counts four, five, six and seven.

As to disposition, the court orders that the child be committed to the custody of the Children, Youth and Families Department until age 21. The court recommends that the child receive treatment at the Sequoyah Adolescent Center.