By Joline Gutierrez Krueger
Albuquerque Journal
ALBUQUERQUE, N.M. — Without the shackles and the serious matter at hand, this could have been any family gathering, replete with the usual jokes and prattle among people joined at the heart in one way or another.
But for one horrifying night, one inexplicable decision 15 years ago, it would have been just that.
Instead, this week these family members gathered in a Sandoval County courtroom because of Michael Brown, the brother, son, grandson who made that decision when he was 16 and not yet a man.
In the eyes of the criminal courts, though, he was.
And unless a judge grants his petition for another look at the case, Brown, now 32, will be an old man before he is eligible for parole - almost as old as his grandparents, who were both 80 when his decision that cold February 1994 night in Rio Rancho led to their butchering by his two teenage cohorts.
This is his last chance.
Brown, one of the first juveniles to be tried under toughened New Mexico laws allowing adult sanctions for killer kids, was convicted for the murders and is serving what amounts to a 72-year sentence.
This week, public defender Brian Tucker asked for belated mercy, arguing that the court had not considered Brown’s youth or that he was fixable.
It had not considered the science of the adolescent brain as an unfinished product that renders its owner immature, impulsive, foolish.
“From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed,” Tucker said, quoting from the U.S. Supreme Court opinion in 2005 that abolished the death penalty for juveniles.
That same opinion has also been mentioned in discussions against indiscriminate adult sanctions for serious youthful offenders.
Michael Brown, Tucker argued, had never even touched the kitchen knives that were used to kill Marie and Ed Brown.
He had been too scared, too freaked, too intoxicated, too immature to stop the killings.
That deed had fallen to Jeremy Rose, then 17, and Bernadette Setser, then 16, two friends who had been drinking that night with Michael Brown in his grandparents’ Rio Rancho home, until his grandmother kicked them out.
Rose had been the first to cop a plea, testifying at separate trials for Brown and Setser that Brown had been just as much a part of the slayings as if he had plunged the knives into the bodies.
But, this week, Rose said that it had not been quite that way.
“Nobody else made me do it,” he testified. “I did it myself. We all made decisions that night.”
Prosecutors, he testified, had pressured him to take an “under-the-table” deal to frame Brown as the murder mastermind in exchange for a lenient sentence. It would be an unwritten deal, he said he was told, because such a deal was illegal.
“I was led to lie by the District Attorney’s Office,” he said.
But when sentencing time came, he said, the deal vanished. Rose received a life sentence. He is serving that now in an undisclosed prison out of state.
“In retrospect, I was lied to,” he said. “They took advantage of a child. All three of us were children. We didn’t deserve the sentences we got.”
That deal, fulfilled or not, had not been disclosed to Brown’s attorneys and thus the case was tainted from the start, Tucker argued. It was another reason to take another look at Brown’s case now, he said.
But Patrick McNertney, who had been the lead prosecutor in all three cases, rebutted Rose’s claims.
There had been an agreement, yes, but one in which no promise was made as to sentencing, he testified for the prosecution.
McNertney, who said the case remains one of the most brutal he has encountered, told the court he had no qualms then or now about seeking adult sanctions against three teenagers. (Setser is serving a sentence similar to Brown’s.)
“I was at the scene,” he said. “I know how Marie and Ed were butchered.”
State District Judge George Eichwald, who heard Brown’s petition this week, is not expected to make a decision for several months.
If he denies it, the impromptu family gathering in his courtroom will likely be Brown’s last.
For many, perhaps most, of you, that will be just fine.
But there are those like me who remain uneasy with the wisdom and the morality of seeing every bad kid as a fully grown monster who needs to be locked away for the rest of his or her natural born days.
It is not a matter of being soft on crime or falling for excuses but knowing the difference between consequence and condemnation, between the juvenile who commits a horrendous act with the folly of an unmade mind and the rarer juvenile whose mind and heart and soul have already been irreparably damaged.
Before his grandparents were murdered, Brown had been a troubled kid with a drinking problem and divorced parents, not necessarily a bad seed prone to violence. He had been salvageable then. Perhaps he still is.
Copyright 2009 Albuquerque Journal