ALBUQUERQUE (KRQE) - A jury will have to decide if a Zia Pueblo mother was mentally unstable when she suffocated her son and buried his body at an Albuquerque park two years ago.
Friday morning a District Court judge granted Tiffany Toribio's attorneys permission to present an insanity defense.
Toribio was charged with murder and child abuse for her son's death in May 2009. Police said she suffocated Ty Toribio, 3, at Alvarado Park and then buried him in a shallow grave in the playground sand.
Toribio was arraigned that June, and her lawyers were supposed to give the judge notice of the insanity defense within three weeks of the arraignment but did not.
Friday morning, Toribio's attorneys told the judge they needed the extra time to settle on a defense strategy because the case is so complex
"That's 20 days after the arraignment," Jeff Buckels said. "Nobody on the face of the earth was going to be able to say what their defense or offense would be of this case."
District Attorney's spokesman Pat Davis said the state agreed not to fight Toribio's request to use the insanity defense because if they'd won and Toribio was found guilty she could use it in an appeal.
"Everybody recognizes she needs the opportunity to present the defense that she is most comfortable with and she thinks is most appropriate in this case," Davis said.
The defense presented a report on Toribio from an out-of-state psychiatrist. What's in the report is sealed. However, in 2009 police said Toribio confessed that she did it because she was homeless and didn't want her son to live a tough life.
District Judge Stan Whitaker agreed to let Toribio's lawyers use the insanity defense, which will place the word "insanity" in the jury's instructions.
Jurors will have to decide if Toribio was guilty of murder or not guilty by reason of insanity.
A guilty verdict means life in prison. If the jury finds the mother not guilty by reason of insanity, Toribio could walk or be admitted into a mental hospital if she's still considered a danger to society.
The state said it's a major game-changer.
"It's almost like hitting a reset button because up to this point everybody has been preparing the case on the facts and information we had available," Davis said.
Both sides asked the judge for additional time to prepare for the trial now that the rules have completely changed. The judge pushed the trial date back from March to October.
While the roads were looking clearer Friday morning in the Albuquerque area, appearances can be deceiving
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