Judge rules there will be no new trial for Cleo Juan

Cleo Juan

By Bill Donovan
Staff writer

GALLUP — There will be no new trial for Cleo Juan, 33, who was convicted in January of being responsible for he death of 18-month-old Colby Shirley.

District Court Judge Grant Foutz Tuesday denied a motion by Juan’s defense attorneys asking for a new trial on the grounds Foutz made a mistake when he refused to let the jury consider a lesser charge that would have allowed the jury to find her guilty of child abuse not leading to death.

Instead, the jury convicted her of child abuse leading to death, which requires a mandatory sentence of 30 years before she can be considered for parole instead of the six years for the other charge.

“We are pleased with he decision,” said Bernadine Martin, one of the prosecutors in the case. “Justice has been served.”

Mark Fine, Juan’s attorney, said he wasn’t pleased but he also wasn’t shocked at losing, admitting that it would have been a long shot for Foutz to grant the motion since he denied it during the trial.

He said he’s now waiting for the sentencing to see what Foutz does, and if Foutz gives her the life sentence, he will appeal.

The state law that Foutz will be basing his decision on is only a couple of years old and this is the first case to be tried under it. The law requires a mandatory life sentence, but Fine said he plans to argue that the law is unfair and should be nullified.

He pointed out that testimony during the trial indicated Juan was an exceptional foster mother for the state’s Child, Youth and Family Department.

Here she will be given a life sentence for a one-time action during a time when she told the state agency she was having problems taking care of Colby and his siblings, wanting them to be removed from her care.

As a result, Colby died and Fine said he will argue that the law in place does not take into account the severity of the charge. A person with only one act that leads to child abuse and a death is treated the same as someone who abuses a child over a period of months or years, finally killing the child.

“Foutz could, if he wanted to, nullify the law,” he said.
If he doesn’t, Fine said he is prepared to take that question to the New Mexico Court of Appeals and ultimately to the state supreme court for a decision.

He said he also plans to appeal on the question of the lesser charge and also on the motion — also denied by Foutz — that the McKinley County DA’s office should not have handled the case because of an alleged relationship between Juan and DA Karl Gillson.