Cleo Juan sentence — was it fair?
DA says sentence in child abuse case sends a message

By Bill Donovan
Staff writer

GALLUP — District Attorney Karl Gillson is hoping that the recent decision in the Cleo Juan child abuse case sends a warning to parents and foster parents to be careful how they treat their children.

This comes as a time, said Gillson, when his office is handling the highest number of child abuse cases leading to death since at least 1991 when he became involved in the office. The office is handling at least three major child abuse cases, all set to come to trial within the next few months.
Juan, a foster parent for 18-month-old Colby Shirley, was given a life sentence Monday for her role in his death. Under state law, she will have to serve at least 30 years before she is eligible for parole.

While the sentencing is over, the court case will continue.
Joe Fine, one of Juan’s two defense attorneys, said Wednesday that his law firm will definitely file an appeal in the case, hoping that the state appeals court would temper the state law that Juan was sentenced under or allow her a new trial. The law requires judges to give a life sentence to anyone who causes the death of a child.

Fine contends this was meant for someone whose actions over a long period of time causes a child’s death, but Gillson said he thought that the Legislature was trying to protect children from abusive families, whether the death was a result of one incident or several.

In any case, he said, during the Juan trial, officials for the state medical examiner’s office testified that they found evidence of trauma to the child’s brain that occurred a week before his death. He said while there is no way to determine who was responsible for the earlier injury, it does show a pattern of abuse.

Mark Fine, Juan’s other attorney, has been trying since the conviction to find a way to reduce her sentence, arguing that the judge in this case should have allowed the jury to consider a lesser charge of just child abuse, which would have severely reduced her sentence.

This stems from statements made by Juan to police that on the day of he child’s death, she had yanked his pajamas off, causing him to fall. Although that didn’t cause the head trauma that caused his death, he felt the jury had the right to show leniency and find her guilty of that abuse and not the one that of which she was convicted. District Judge Grant Foutz rejected this request both during the trial and after.

Jim Bierly, the chief prosecutor in this case, has argued that Fine’s request doesn’t make a lot of sense and compared it to a situation where someone committed a bank robbery for example and then fled the area. Then some 30 miles away, he goes into a convenience store and steals a candy bar.

Under Fine’s theory, a jury would be allowed to convict the guy of just stealing a candy bar and ignore the bank robbery.

The fact that Juan admitted to police a case of minor child abuse doesn’t allow a jury to ignore the one that caused his death, he said. “These are two separate incidents.”

In his sentencing brief to the district court, Mark Fine talked a lot about Juan’s personal tragedies.

“Cleo’s life has been comprised of a sequence of life-shattering catastrophes, including the violent deaths of her father, sister and daughter. The misery that Cleo has endured defies comprehension and calls into question the theory of an ordered life,” he wrote.

“Depending on whether one agrees with the jury’s verdict in this case, Colby’s death represents either Ms. Juan’s violent loss of control as a result of the stress and depression caused by her tragic history or another horrible tragedy for which she is not responsible. In either case, her history of unimaginable suffering warrants consideration when fashioning a sentence.”

Joe Fine said he viewed Foutz as sympathetic to Juan but unable to do anything because of state laws.

But in the end Foutz did what he was required to do by state law and gave her a life sentence.

“My hands are tied on this issue,” he said during the sentencing.