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Dropping Vigil case was appropriate, court rules

VIGIL: Appeals court rules delays in trial were not primarily her fault

VIGIL: Appeals court rules delays in trial were not primarily her fault

ALBUQUERQUE, N.M. — Dropping charges against the former secretary of state because of a 3½-year delay in getting the public corruption case to trial was appropriate, the New Mexico Court of Appeals said in a unanimous new opinion.

The appellate court affirmed the November 2012 decision by now-retired 2nd District Judge Reed Sheppard to toss charges in a 50-count indictment because of unreasonable delay in the case against Rebecca D. Vigil, a violation of her speedy trial rights.

Sheppard said at the time that Vigil, called Rebecca Vigil-Giron in the indictment, had done nothing to cause the delay other than file a motion to disqualify the New Mexico Attorney General’s Office from prosecuting it. Vigil’s attorney, Robert Gorence, made the request soon after the indictment in 2009 that alleged fraud in the awarding of $6 million in federal contracts.

Vigil, the former secretary of state, was charged in 2nd District Court along with three other individuals for alleged misuse of Help America Vote Act funds. She was not charged in a related prosecution in federal court, where the U.S. Attorney’s Office obtained convictions against Elizabeth and Joseph Kupfer and Armando Gutierrez. Gutierrez, a political consultant from Corpus Christi, Texas, died before having to surrender to serve a prison term.

The appeals court panel, Judges Jonathan Sutin, Michael Bustamante and Michael Vigil (no relation), noted the trial court’s statement that Vigil had “vociferously asserted” her speedy trial right. Her request to bar the Attorney General’s Office from prosecuting her – the AG had provided legal advice to the secretary of state – was not heard for 22 months after it had been filed, the appeals court said, and 16 months of the delay was weighed against the state.

The delay caused prejudice – anxiety, hypertension and insomnia and impairment of the defense because a crucial witness, former Elections Bureau Chief Hoyt Clifton, died in the interim, the appellate opinion says.

Rebecca Vigil testified at the hearing seeking to disqualify the AG’s office in 2012 that she had lost her job as a result of the indictment and applied for employment at an estimated 156 businesses without success. And she said Clifton had spearheaded the voter education project and that she had mostly signed off on what was presented to her.

The state criticized the District Court ruling that disqualified the AG, focusing in the appeal on Vigil’s references to stress caused by the “indictment,” not the “delay” – something the appeals court said was “a semantic distinction (that) … does not warrant further consideration.”

The appeals court used that same phrase in dismissing other issues raised by the contract prosecutor hired after the AG’s office was disqualified. The court grumbled in the opinion about insufficient details to support the claims.

“The delay here was caused in large part by the administrative failures of the District Court,” the appellate decision said, particularly the 18-month delay in ruling on the motion to disqualify the AG.

The nature of the case made it hard for parties and the court to settle upon a judge who could handle it, the opinion said, and the judge then failed to act efficiently and expeditiously “in view of the speedy trial issues sure to arise.”

But the state didn’t go far enough in providing evidence or explanation to show that “the case could not have been managed considerably better for societal purposes and to protect defendant’s right to a speedy trial.”