ALBUQUERQUE, N.M. — High-profile trial lawyer Randi McGinn, who is currently representing a family suing the Albuquerque Police Department over another fatal shooting, has agreed to be special prosecutor in the case against two law enforcement officers charged with the murder of a homeless man.
Retired Detective Keith Sandy and officer Dominique Perez were charged with murder in the March 16, 2014, shooting of James Boyd in the Sandia foothills in a criminal information filed by the District Attorney’s office.
District Attorney Kari Brandenburg announced McGinn’s appointment at a press conference Thursday.
It will be McGinn’s first time as a special prosecutor, though she was an assistant district attorney in violent crimes and tried multiple murder cases under the late District Attorney Steve Schiff early in her career.
McGinn’s law firm will not bill on an hourly basis and will accept only what contract public defenders receive for a first-degree murder case – $5,400 plus costs.
“We didn’t ask for this, but somebody’s got to do it. Somebody has to hold police accountable,” McGinn told the Journal in a phone interview after the announcement.
“No one is above the law and every Albuquerque citizen, whether a homeless man in the mountains or a police officer patrolling its streets, should be allowed the due process protections afforded by that same law,” she said in a written statement.
Attorney Luis Robles, who is representing Perez, said Thursday that he hoped McGinn’s examination of the evidence would lead to a reconsideration of the charges against his client.
“In doing so, I trust that Ms. McGinn will see the problems which face the State in proceeding with murder charges against Officer Perez,” Robles said in an email to the Journal. “With the evidentiary problems in mind, Ms. McGinn may see this case differently than Ms. Brandenburg.”
Attorney Sam Bregman, who is representing Sandy, could not be reached for comment Thursday.
The issue of who should prosecute the officers arose when defense attorneys asked for the 2nd Judicial District Attorney’s Office to be disqualified because of a conflict of interest. The conflict cited in defense motions was an APD investigation of Brandenburg for allegedly interfering with a police investigation of her son.
Judge Alisa Hadfield, in a 20-page opinion last week, said there was no evidence of actual conflict, but the appearance of one was sufficient in this case to disqualify the office.
“Disqualification of District Attorney Brandenburg is necessary to ensure the appearance of fairness of trial and to ensure public trust or confidence in the criminal justice system,” Hadfield said in her ruling.
Brandenburg, in a news conference in her Downtown office Thursday, said she decided not to appeal the ruling because both officers involved and the community need answers to many questions.
Brandenburg said requests to district attorneys in the state’s other 13 judicial districts, as well as to Attorney General Hector Balderas, to take on the case got negative responses.
APD took its investigation of Brandenburg to the Attorney General’s Office rather than the District Attorney’s office for review.
“Attorney General Balderas advised that selection of a special prosecutor was most appropriate, given his ongoing review in the APD Brandenburg referral, in addition to other staff conflicts,” Balderas spokesman James Hallinan said in an email Thursday. “The Attorney General is pleased that an independent special prosecutor has been assigned to this important matter and that the public can be assured that it is being handled without the appearance of any conflicts.”
Responding to the suggestion the charges stemmed from retaliation against APD, Brandenburg, in her news conference, spoke of a regard for police that approached reverence from the time she was a small child and police came to her home while her father was an assistant district attorney and later elected district attorney. She said that cooperative relationship continued through two decades as a criminal defense attorney and into the District Attorney’s office.
“I want the record to be clear. I would never prosecute anyone, no matter who they are, without a just and legal cause” for doing so, she said.
Brandenburg said she had reached out to McGinn and other private attorneys, and it wasn’t until Wednesday that McGinn agreed to be special prosecutor.
“I think I’m getting an incredible attorney for minimal cost,” Brandenburg said.
McGinn has won big verdicts and settlements in medical malpractice and wrongful death cases, as well handling some high-profile criminal defense work while in private practice.
She recently won a $6 million judgment in a civil lawsuit in state court for APD’s fatal shooting of Christopher Torres, though state law bars recovery of all but $400,000.
The 27-year-old Torres, a mentally ill man living with his parents, was shot after two detectives tried to serve him with a traffic warrant in his back yard in April 2011. A parallel case alleging civil rights violations is set for trial in federal court in August.
McGinn, who has already been sworn as special prosecutor, will have complete autonomy on the case – even more than an assistant district attorney in Brandenburg’s office – on charging decisions and any potential plea.
She said she expects a case review to take 10 days to two weeks. The case file was delivered to her office Thursday.
McGinn could go forward on the first-degree murder charge, drop the charges or modify them – depending on what the evidence shows.
“We look for evidence of a crime and (look at) every single element. If there was a different crime committed, we’ll file different charges. If some form of homicide occurred, we’ll go ahead with a (preliminary) hearing,” she said. “It’s so important to the whole community that the justice system works in this case.”
McGinn will present the charges at the preliminary hearing, and Judge Hadfield will decide whether she agrees with them.
A status conference is set before Hadfield May 25.