By Jeff Proctor
ALBUQUERQUE (KRQE) – District Attorney Kari Brandenburg has moved quickly to keep alive the murder prosecutions of two Albuquerque Police officers for the March 2014 shooting of homeless camper James Boyd by appointing powerhouse trial lawyer Randi McGinn — herself a former assistant district attorney — as special prosecutor for the case.
The decision is sure to turn heads and draw mixed reactions in the legal community here — McGinn has successfully sued APD in excessive force cases, and she has prosecuted a cop killer. Her appointment raises the profile of what already was one of the most observed cases in city history. And it comes at a time when police use of deadly force and whether the criminal justice system has done enough to check officers’ power are increasingly part of a broad national debate.
Last week, state District Judge Alisa Hadfield granted a motion from the attorneys for the two officers to disqualify Brandenburg and her entire office from the prosecution.
Hadfiled determined broad perception existed that Brandenburg had a conflict of interest, primarily because local and national media coverage linked together her decision to charge the officers with murder and APD’s yet-unresolved investigation of Brandenburg for allegedly bribing the victims of her son’s burglaries in exchange for no charges against him.
The judge’s order left Brandenburg two choices: appeal the decision to the state Court of Appeals, or bow out and find someone else to take the case.
The four-term DA chose the latter and is expected to announce at a news conference this morning the appointment of McGinn to prosecute SWAT officer Dominique Perez and former detective Keith Sandy, KRQE News 13 has learned.
Brandenburg charged Sandy and Perez on Jan. 12 with open counts of murder through the filing of criminal information documents. That process allows prosecutors to charge suspects without obtaining an indictment in a secret grand jury proceeding, and it marked the first time police officers had been charged for an on-duty shooting in New Mexico’s largest city.
The next step for the case will be a preliminary hearing, in which Hadfiled will decide whether Sandy and Perez should be bound over for trial. No date has been set for the hearing.
Brandenburg has said she began contacting district attorneys throughout the state about possibly stepping in to prosecute the case after the defense attorneys moved to disqualify her. None of them was willing to take it on, she said.
The DA’s Office also was in contact this week with Attorney General Hector Balderas about the case against Sandy and Perez, though it is unclear whether Balderas was formally offered the special prosecutor appointment.
Had they not sought disqualification of Brandenburg, Sam Bregman and Luis Robles, defense attorneys for Sandy and Perez, respectively, would have faced chief deputy DAs Deborah DePalo and Chris Lackmann. DePalo and Lackmann are veterans but have not spent much time in the courtroom in recent years.
Instead, the defense will be up against McGinn. She has a robust and active practice that includes, among other things, civil rights cases against APD officers who have shot people.
Most recently, McGinn won a $6 million state court verdict against APD and two officers in the 2011 shooting of Christopher Torres, the 27-year-old son of a prominent Albuquerque couple who was suffering from paranoid schizophrenia when the two officers jumped a fence into his backyard, punched Torres and shot him in the back three times while trying to serve an arrest warrant.
State law capped the payout at $400,000, but the case is now pending in federal court. The city could be forced to pay the rest of the $6 million, plus punitive damages.
McGinn also is a member of the legal panel for APD Forward, a group that is monitoring the forthcoming federally mandated reforms at APD. The changes are coming on the heels of an 18-month U.S. Department of Justice investigation that found longstanding unconstitutional use of force by APD officers and a leadership culture that allowed it to fester. McGinn and APD Forward have pushed to strengthen some of the reforms, including the way the SWAT team is used by APD.
Many civil rights advocates have pointed to the Boyd shooting case as a prime example of nearly all the problems at APD.
McGinn, who is the wife of state Supreme Court Justice Charles Daniels, is known for her creative approach to trial work. She is a hard charger in the courtroom and lists on her law firm’s website two oft-cited examples of that style: “Once cross-examined a lying witness so thoroughly, he threw up on the stand!” and “Left a defendant’s pretentious Beverly Hills doctor/expert standing in front of the jury covered with post-its and clutching a grapefruit to his chest.”
Her resume, however, also presents a wrinkle for the defense team in the Boyd shooting case.
After graduating from the University of New Mexico School of Law in 1980, McGinn went to work for a short time at a local firm. Wanting more trial experience, she took a job prosecuting violent crimes for the Bernalillo County District Attorney’s Office. There, she handled more than 200 such cases in five years.
One of those was a murder case against Joel Lee Compton, who killed APD officer Gerald Cline in February 1983. In September of that year, McGinn won a conviction — and a death sentence — against Compton. The sentence was later commuted to life in prison.
UPDATE 2:15 pm:
Newly appointed special prosecutor Randi McGinn said in an interview that she plans to take between 10 days and two weeks to go through the case file for the Boyd shooting. She received the file Thursday morning, shortly after DA Kari Brandenburg announced McGinn’s appointment at a news conference.
“Everything is on the table,” McGinn said. “I’m going to take a completely independent viewpoint on this. I may decide to dismiss the case altogether. I may decide that the pending charges are appropriate and proceed from there. And I may decide to file different charges.”
Another option, which McGinn did not discuss, is to press forward with charges against one of the officers but not the other.
She said she will take the case through the preliminary hearing process if she decides to proceed.
She acknowledged that winning a conviction against police officers in an on-duty shooting incident requires getting over an incredibly high hurdle — even if there are strong facts to support that the officers intentionally killed someone in violation of state law.
“We’re not doing this for the money,” said McGinn, who will be paid $5,400 to review the case and, if warranted, prosecute Sandy and/or Perez. “And we did not seek this case out. But when we heard that the prosecutor elected in this state by the people — meaning the Attorney General — and all the other DAs would not take this, we thought it was too important a case not to have someone step in and take a look.”
The paltry payment, McGinn said, is the exact amount a contract public defender is paid to work on a murder case.
“That is outrageous,” she said, adding that the amount she’ll receive for the Boyd case was her idea. “I did it to make a point.”
The viral video of the shooting, captured by Perez’s helmet mounted camera and released by APD, is the only piece of evidence McGinn had seen from the case prior to Thursday, she said.
Reached by telephone earlier this afternoon, Robles, the defense attorney for officer Perez, declined to say whether he would seek to remove McGinn from the case,
For now, Robles said, “Officer Perez looks forward to a fresh review of the facts and the evidence in this case.”
“Officer Perez’s hope is that Ms. McGinn will see things differently than Ms. Brandenburg did,” he added.
Former detective Sandy’s attorney, Sam Bregman, said he was at a baseball game this afternoon and refused to comment.
Brandenburg announced McGinn’s appointment during a rambling, emotional, 35-minute news conference this morning. It marked the first time she has spoken publicly since Judge Hadfield disqualified her from prosecuting the Boyd shooting case last week.
“I want the record to be clear that we would never prosecute anyone, anyone … no matter who they are, including police officers without just and legal cause,” she said, addressing allegations that she went forward on the case because of APD’s investigation of her alleged activities connected to burglary cases against her son. “We are not going to appeal Judge Hadfield’s order. We think our community and the officers nee a resolution in this case.”
Brandenburg provided a copy of a letter she sent to Balderas, the AG, asking him to prosecute the case, and Balderas’ written response.
Citing unspecified conflicts within his office, Balderas declined to take the case, his letter says.
“Your letter details how the review of officer involved shootings and use of force issues in Bernalillo County has placed a strain on your office’s resources,” Balderas wrote. “The Office of the Attorney General takes excessive use of force very seriously and we are interested in engaging in a dialogue regarding this issue at some point in the future.”
Switching gears during the news conference, Brandenburg spoke more expansively than she has at any time previously about what she considers a “crisis” in the local criminal justice system.
“We are in a crisis that I’m not sure we can recover from, and if we do, in my lifetime,” she said. Pressed by reporters to explain, Brandenburg added: “Crisis is a lack of faith in our community, a lack of faith in our government, a lack of faith in our elected officials, a lack of faith in our law enforcement.”
Mayor Richard Berry’s administration has not responded to a request for comment on Brandenburg’s remarks.