ALBUQUERQUE, N.M. — Two police officers originally charged with first-degree murder in the fatal shooting of a mentally ill homeless man in the Sandia foothills now face second-degree murder charges instead, and new documents reveal for the first time who fired the fatal shot.
District Attorney Kari Brandenburg had charged the officers with first-degree murder in the death of James Boyd, but then handed the case over to special prosecutors after a judge said her office could not prosecute it due to an appearance of conflict.
On Monday, special prosecutors Randi McGinn and Kevin Holmes filed a criminal information, a charging document that will lead to a probable cause hearing by a judge, against Keith Sandy, a former Albuquerque Police Department detective, and SWAT team member Dominique Perez on charges of second-degree murder.
The language of the documents say it was Perez “who did kill James Boyd without legal justification” and Sandy “who did kill or aid and abet in the killing” of Boyd.
Lesser offenses included in the documents are voluntary and involuntary manslaughter against both officers, each with a firearm enhancement, and aggravated assault resulting in great bodily harm against Perez and aggravated battery resulting in great bodily harm against Sandy.
The shooting made national headlines when a police video showed Boyd, armed with two knives, being shot after he appeared to say he would surrender.
Boyd, 36, who suffered from paranoid schizophrenia, had been camping in a restricted area of open space in Albuquerque’s foothills when he was told to leave by Open Space officers. In the hours-long encounter with multiple officers from different police units on March 14, 2014, Boyd was shot multiple times and died the following day.
Perez attorney Luis Robles said it made sense for the first-degree murder charge to be dismissed “because there was no evidence to support such a charge.”
Robles said the charging documents make it clear that the “fatal shot is being brought against Perez.”
Of the new charges, Robles said, “It all comes down to the idea, ‘Are the actions of the officers authorized by law, policy and training,’ and if we can show that it’s a defense to all these charges. It almost becomes like a civil case in that sense.”
Robles successfully has defended many police excessive force cases, particularly those involving federal civil rights claims.
Sandy’s lawyer Sam Bregman said there was no justification for charging his client with any crime.
“He was a police officer protecting a fellow officer when he shot a mentally unstable man wielding two knives . There is simply no criminal intent,” he said.
Filing of any charges by the special prosecutors was deferred earlier while a ballistics expert in California using 3-D technology reviewed evidence, McGinn said.
They were able to file the charges after getting results from the ballistics.
McGinn and Holmes were appointed in early May, after defense attorneys Bregman and Robles filed a motion to disqualify the District Attorney’s Office based in large part on an APD investigation of District Attorney Brandenburg. The Attorney General’s Office, to whom the Brandenburg investigation was referred, decided against filing charges.
Meanwhile, Judge Alisa Hadfield, to whom the Boyd case was assigned, ruled that because of the appearance of a conflict, rather than any actual conflict, Brandenburg and her staff should step down from the case.
McGinn said Monday that second-degree murder charges often are filed when there’s an imperfect self-defense claim.
“You can’t claim self-defense when you create the dangerous situation or when you start the fight,” she said.
A preliminary hearing in the case has been scheduled for Aug. 3-6 before Pro Tem Judge Neil Candelaria, a former police officer who was a judge in Metropolitan Court and the criminal division of District Court before his retirement.
Candelaria will decide if there is probable cause to go forward on any or all of the criminal counts.
Witnesses at what amounts to a minitrial will include APD Police Chief Gorden Eden, primary homicide case agent Geoff Stone, a State Police sergeant, a neighbor, a crime-scene reconstructionist, professionals who enhanced audio and video for transcripts, and multiple APD officers from SWAT, field services and other divisions.