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Column: Court wipes away a small victory won by family seeking truth

ALBUQUERQUE, N.M. — It had finally felt like a small victory.

After six years of seeking truth, accountability and an apology, the family of prominent civil rights attorney Mary Han had finally got on record in open court how egregiously her sudden death Nov. 18, 2010, had been treated by the powers that be – powers that had often been her adversaries in civil cases.

In January 2017, state District Judge David Thomson of Santa Fe had heard testimony from members of the Albuquerque Police Department, the state Office of the Medical Investigator and nationally recognized forensic experts about how evidence at her North Valley home was contaminated or not collected, red flags were missed, upward of 60 officials trampled carelessly through her home and assumptions were made far too quickly with far too little proof that she had committed suicide.

All of it had been painful and aggravating, especially the suicide label. The 2017 court proceedings, the last in a long line of legal efforts the family had pursued, asked Thomson to order OMI to reopen, reevaluate or outright change the manner of Han’s death from suicide to undetermined.

It took 19 months for Thomson to agree, issuing in August 2018 what is known as a writ of mandamus for OMI to comply with. This week, that victory was dashed by the state Court of Appeals.

A 21-page opinion released Monday reverses Thomson’s decision, siding with OMI’s contention that the determination of suicide was based on opinion, which is not subject to mandamus, and not a ministerial act, which can be subject to mandamus.

“Because New Mexico case law generally prohibits use of mandamus to control or interfere with the valid exercise of discretion by a state official, the issuance of the mandamus order in this case directing Respondent (OMI) to change its medical opinion as to manner of death was error,” the opinion states.

The decision will be welcome news to OMI, which has paid more than $203,000 thus far in legal representation. It is also a vindication of sorts for Dr. Ross Zumwalt, then OMI’s chief medical officer, who testified in 2017 that he had reviewed Han’s case three times and remained 95% certain she had died by suicide and would remain convinced unless proof arose that Han was “held there at gunpoint” in her car in the garage where he believes she died of carbon monoxide intoxication.

But the decision is a blow to those who contend the investigation into her death was botched.

“There is simply no way to express the importance of the district court decision to hold OMI accountable for the utter chaos and contamination of the death scene that pointed to a conclusion other than suicide,” attorney Diane Garrity said. “OMI’s failures here are to such an extent that we will never know what happened, and now the family will not receive any relief.”

Garrity said she and attorney Rosario Vega Lynn intend to ask the state Supreme Court to review the appellate decision.

“For this family, the arc of the moral universe is indeed a long one, but we believe justice has always been on our side,” she said.

Thomson – the judge who had ruled in their favor – now sits on the Supreme Court bench, appointed in early 2019.

Curiously, the appellate opinion also states that “legal avenues other than mandamus do exist to challenge administrative decisions for being arbitrary, an abuse of discretion or unsupported by substantial evidence.”

But it’s hard to imagine that Han’s attorneys have not traveled down those avenues – from the state Board of Medical Investigators to the 10th Circuit Court of Appeals – only to hit dead ends.

The dead end imposed by the appellate decision, Garrity contends, affects others who take issue with what OMI determines should be written on a death certificate.

“The district court allowed a process to challenge OMI’s decisions, creating a path for other families who reasonably and legitimately question how their loved one died instead of relying on OMI’s standard,” she said.

Han, you may recall, was 53, at the peak of health and excited about starting her own law firm after parting ways with longtime law partner Paul Kennedy. It was Kennedy who found her in her BMW and who in a 911 call declared her death an “accidental suicide.”

“When OMI received the notice as accidental suicide, it was taken as gospel,” Han’s older sister Elizabeth Wallbro had testified before Thomson in 2017. “Nobody ever challenged that statement, and it stuck.”

The first officers on the scene testified that they classified Han’s death as suspicious and a possible crime scene, but their efforts to conduct a proper investigation were thwarted when dozens of the highest-ranking APD and city officials descended on the home. That was only the beginning of the damning testimony.

“Due to the contamination of the scene and the loss of critical evidence, even under the most deferential standard, there is no basis for the Office of the Medical Investigator’s determination of the manner of death,” Thomson wrote in his 96-page ruling. “Simply put, the evidence needed to make this determination was spoiled by the acts of the investigating agency.”

Though that ruling is now wiped away, what remains is what was revealed in that courtroom January 2017, a record, a memorial, a condemnation of what happened to Han after she could no longer fight her own court battle.

That, for now, will have to be victory enough.

UpFront is a front-page news and opinion column.

 

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