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Judge takes attorneys to task over sealed records in child death case

July 5, 2018 GMT

A Santa Fe judge on Tuesday schooled attorneys in a high-profile child death case on the protocol for sealing court records. Filings are presumed to be public unless and until a judge rules they can be kept secret, the judge said, but the lawyers seem have it backward.

“What’s been filed so far has been submitted with the presumption that they would be sealed,” District Judge Matthew Wilson told the three prosecutors and three criminal defense lawyers working on criminal cases related to the 2017 death of 13-year-old Jeremiah Valencia.

Jeremiah’s tortured and abused body was found buried in a plastic box buried near a roadside in Nambé in January.

Police believe he was beaten to death by his mother’s boyfriend, Thomas Wayne Ferguson, who since committed suicide in the Santa Fe County jail. Jeremiah’s mother, Tracy Ann Peña, and Ferguson’s son Jordan Anthony Nuñez still face charges of child abuse resulting in death in connection with the case. It was their defense attorneys and state prosecutors whom Wilson addressed Tuesday.

Wilson told the lawyers that delivering motions to the court clerk’s office in a sealed envelope with a “motions under seal” note on the outside, as he said has been done in the case, doesn’t comply with judicial rules for sealing cases.

If attorneys want something sealed, he said, they need to file a motion, something third parties can review and respond to and something a judge can consider and rule on in a hearing.

“If the court decides they should be sealed, the court has to make written findings and issue a written order detailing why it’s sealing this particular pleading or document,” the judge said. He added that he was returning improperly filed pleadings to the lawyers, striking them from the record and would not consider their substance until they were properly filed with the court.

“No objection from the state, that is the proper course to proceed and we will proceed that way,” responded Deputy District Attorney Michael Nuñez, no relation to Jordan Nuñez.

Mark E. Earnest, who represents defendant Nuñez, and Michael L. Rosenfield, who represents Peña, told Wilson they never intended to file their motions under seal but had done so because their motions referenced things that had been filed under seal by the District Attorney’s Office.

Asked why the District Attorney’s Office had not followed the proper procedure, District Attorney Marco Serna said in an email: “There was a miscommunication between the attorneys assigned to the case and the proper procedure wasn’t followed. After the guidance from the Court earlier today, the appropriate motion will be filed Thursday morning.”

During a scheduling discussion that followed the judge’s comments, the attorneys indicated the pleading filed under seal might have something to do with whether the defense will have an opportunity to interview Jeremiah’s 13-year-old sister in advance of a release hearing for the two defendants.

The defendants have been in custody since they were arrested in January. Hearings to determine whether they are too dangerous to be released pending trial have been postponed at the request of both sides and are now set to take place in August.