Two years ago, a teenager in Brooks fired six shots from an illegal “ghost gun,” killing a man who had offered him shelter from a traumatic past marked by abuse.
Atilio Delgado, now 18, has not denied the act – but his defense attorneys and the state are fighting over whether he should be tried as an adult, a decision that could mean the difference between a short stint in a youth facility or decades in prison.
A judge in Waldo County decided last month to move the case to the adult system, and Delgado has appealed that decision to the Maine Supreme Judicial Court. Delgado was about to turn 17 when he was charged with murder in the May 6, 2022, death of 49-year-old James Cluney. If convicted as an adult, he faces anywhere from 25 years to life in prison.
He is waiting to be indicted while his appeal his pending and has been moved to an adult jail. It is unclear when the appeal will be decided.
Delgado is accused of shooting Cluney that morning after Cluney had gotten into an argument with Delgado’s brother. Cluney and his wife had taken in the two boys years ago when their parents were no longer taking care of them, according to court documents.
In an April 11 order, District Judge Charles Dow pointed to the seriousness of the crime, his concern for public safety and Delgado’s past exposure to violence at the hands of abusive male figures as reasons to elevate the case. He said he didn’t think the juvenile system was adequate to prevent Delgado from reoffending and to keep the public safe.
“The reality of the juvenile system is that whether Atilio succeeded in treatment or not, whether he even engaged in treatment or not, he would be a free man at 21,” Dow wrote. “The court is not persuaded that such a result would be appropriate.”
Delgado’s lawyer, David Zirschky, said in a phone interview Tuesday that he strongly disagreed with the ruling.
Zirschky and his co-counsel Kendra Potz have argued that their client should remain in juvenile court. They said his behavior “was impulsive, reactive, unintentional and the result of a complex PTSD response.” They say he would benefit most from mental health treatment at the Long Creek Youth Development Center, where he spent nearly two years after his arrest as a “model of good behavior for the other residents.”
“He volunteers, he leads by example, and he engages with the minimal services that he has been offered by the state of Maine while detained,” the lawyers wrote. “These are not the hallmarks of an individual who needs a more secure facility.”
OFFERING STABILITY
Cluney was a father of five, according to his obituary, as well as a grandfather. He was born in Gloucester, Massachusetts, and moved with family to Maine when he was 8, “where he became a country boy for life.”
He enjoyed “adventures in Jackman,” the obituary states, and loved fishing, hunting and four-wheeling with friends. He worked in construction as a foreman in the union. He built his own home.
Delgado and his brother Pedro moved into that home about three years before the shooting. Delgado was friends with their son and later dated their daughter. The judge wrote that the Delgado boys had been abandoned by their own parents.
When Delgado was 4, his father was arrested for beating him with a sandal. According to court records, his father regularly forced him to fight his brother and made Delgado watch movies “that scarred him deeply.” His mother’s boyfriend later beat Delgado until he was about 12 years old, records state.
The Cluneys offered Delgado some stability, Dow noted in his order. They fed him, they clothed him and they held him to the same rules as their other children, including that if they weren’t in school then they had to work. Delgado, who stopped attending high school after a suspension in the ninth grade, had jobs at Dunkin Donuts and Dairy Queen. The Cluneys drove him to work, as well as jiu-jitsu practices.
But Delgado still struggled to find a sense of safety. His attorneys said Delgado was triggered by Cluney’s bouts of anger and started carrying a gun – a P80 handgun he assembled using YouTube videos and parts he bought online with prepaid credit cards, where he was easily able to lie about his age.
The state argued that this perfectly captured Delgado’s tendency to skirt rules and challenge authority. His attorneys, meanwhile, said Delgado had told others that he bought it for self protection.
“Atilio wanted to protect himself from loud, angry, violent men who would hurt him or Pedro, which was something that Atilio feared more than bears in the woods,” his lawyers wrote in court records.
It was that instinct that led to the shooting, his attorneys said.
‘A SIMPLE MISUNDERSTANDING’
The morning started with a “simple misunderstanding” between Cluney and his daughter about whether she was going to be late for school. She left the house crying, according to court records, and asked Delgado to meet her outside.
Delgado was high on marijuana as he comforted her, carrying his handgun, the judge wrote.
Inside, Delgado’s brother had confronted Cluney about how he spoke to his daughter. According to the judge, Cluney told the teen something to the effect of “mind your own business, and if you don’t like it you can leave” and “lightly hit Pedro twice with open hands, once to each side of Pedro’s head.”
In the driveway, Delgado heard “the voice of his older brother yell and then fall silent,” his attorneys wrote.
Delgado ran to the house and was climbing the porch steps when Cluney emerged and said something to the effect of “I just fed your brother a couple,” according to Dow’s order.
Then Delgado pulled the handgun from his waistband and shot Delgado six times in rapid succession. Delgado ran and hid in the woods where he immediately called 911 to report what he had done, documents state.
In prosecutors’ push to move the case to adult court, Assistant Attorney General Leane Zainea urged Dow to consider what she said was Delgado’s intentional behavior in the shooting – he had approached Cluney at a close distance, leveled a loaded gun and shot him six times.
“Delgado’s action of shooting Cluney six times was not the result of self-defense or defense of third persons,” Zainea wrote. “There is simply no evidence that Cluney had used deadly force or was about to use deadly force.”
Instead, she argued, Delgado’s actions “were motivated by anger and rage towards Cluney.” She also argued he demonstrated a troubling “fascination with guns and the power they provide.”
Delgado was under supervision for an earlier confrontation with school staff when he bought the gun parts, Zainea said.
But Delgado’s lawyers urged the judge to consider just how easily available gun parts and information like this are when considering their client’s case.
“The existence and availability of P80 handguns is a failing of adult society and should not be pinned on a curious juvenile with a prepaid credit card,” they wrote.
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