Lincoln County improperly withheld records in investigation into outlaw’s death
Copyright © 2013 Albuquerque Journal
Lincoln County has paid $125,000 in attorney fees to a weekly newspaper for violating the Inspection of Public Records Act in a lawsuit over documents relating to an investigation into Billy the Kid’s death and whether he was buried in Fort Sumner.
The settlement agreement represents only the payment to the De Baca County News, which sued along with retired psychiatrist and East Mountain resident Gale Cooper in 2007, according to an attorney for the newspaper.
Four other law firms previously involved in the case were paid another $70,000 combined and one claim is outstanding.
Cooper had filed written requests for records pertaining to a DNA analysis by celebrity forensic scientist Dr. Henry Lee of blood left on a carpenter’s bench where the Kid’s body purportedly was placed after he was shot in 1881. Cooper also wanted Lee’s DNA report of two others who had claimed to be Billy the Kid.
One theory explored by the much-ballyhooed investigation, which started with the backing of then-Gov. Bill Richardson, was that Sheriff Pat Garrett shot someone else after the Kid’s escape from the Lincoln County jail. That person was buried in Fort Sumner while Billy the Kid escaped to Texas and lived out his days as Brushy Bill Roberts.
Billy the Kid’s grave is Fort Sumner’s main tourist attraction and still draws a steady stream of visitors.
De Baca County News publisher Scot Stinnett joined with Cooper in seeking the records in the lawsuit, naming Lincoln County Sheriff Rick Virden, ex-Deputy Steven Sederwall and ex-Sheriff Tom Sullivan as defendants.
Sederwall and Sullivan have said in court documents and continue to maintain that the investigation they opened in 2003 into Billy the Kid’s death was “conducted … as private citizens and not in their capacity as sheriff’s department officials.”
They claimed they had no records subject to the state Inspection of Public Records Act.
But Jeremy Theoret, who along with Patrick Griebel of Albuquerque Business Law represented the De Baca County News, said it was clear from evidence that the investigation, which had a Lincoln County case number, was public record.
13th Judicial District Court Judge George Eichwald entered an order in March 2010 finding that “Sullivan and Sederwall were acting either as employees or agents of defendant Lincoln County Sheriff at all times pertinent. … (The) sheriff opened the investigation and continued with the investigation which is the subject of this (lawsuit).”
“Lincoln County fought us for five years over this and provided lawyers for the defendants,” Stinnett said. “They ended up paying all those fees to us and as part of our settlement we insisted they pay other attorneys who had previously worked on the case. That was another $70,000.”
The De Baca County News and Cooper eventually parted ways, but both proceeded with the action.
Theoret said his clients eventually obtained a report from one of the defense attorneys, and another version of it later surfaced.
Eventually, he said, plaintiffs obtained documents from Orchid Cellmark, a lab in Dallas, but nothing was settled definitively.
“The documents said there was DNA evidence on the bench where Billy reportedly had been laid out but it was blended (from more than one person) and it would cost $50,000 to unblend them,” Theoret said.
Lincoln County defendants have continued to assert in pleadings that they did not have reports.
In a pleading submitted to the appeals court last April asking for the court to take the case, the defense said one of the questions presented was, “Are documents that the sheriff has never used, created, received, maintained, held or even had knowledge of public records under IPRA?”
Theoret said a New Mexico Court of Appeals case against the city of Truth or Consequences establishes that “anything maintained or created on behalf of a government entity is public.”
Cooper, meanwhile, now self-represented, has filed documents asking for damages, costs and sanctions against the defendants. Sederwall and Sullivan’s attorney, Kevin Brown, filed a response Friday asking for her motion to be dismissed until the court has entered its findings and conclusions.
Theoret said he suspects the attorney fees may be the highest anybody has had to pay under IPRA.
“I think the attorney fee provision is important in IPRA cases. It really is a strong enforcement tool,” he said.
Stinnett, a longtime public records advocate and member of the Foundation for Open Government, publishes a 1,200-circulation newspaper in a county of 2,200 people.
“These guys were trying to rewrite the history of my town for their personal gain,” Stinnett said. “And they were using the Lincoln County and De Baca County Sheriff’s Offices to do it.”