ALBUQUERQUE, N.M. — The question of whether two former Albuquerque police officers will be retried on murder charges in the death of homeless camper James Boyd may not be able to wait until after a new district attorney takes office Jan. 1.
But it was unclear Thursday who will make the decision on whether to go forward with the case or dismiss criminal charges against Dominique Perez and Keith Sandy.
Initially, it appeared that incoming District Attorney Raul Torres would have that responsibility after taking office Jan. 1.
But under local court rules, the prosecution has 30 days from the date of a mistrial to notify the court whether to schedule another trial.
A district court jury deadlocked 9-3 in favor of acquittal of the two former officers earlier this week.
“At some point, it will have to come before the court but which prosecutor handles it is unknown at this time,” said Tim Korte, spokesman for the 2nd Judicial District Court, on Thursday.
The legal conundrum is especially difficult for former SWAT officer Perez, who is still trying to get his Albuquerque Police Department job back, said his attorney, Luis Robles, this week.
“I think he’s still in limbo until somebody makes a very hard decision about whether or not to retry the case,” Robles said.
As per APD policy, Perez was fired in 2015 because of the criminal charges filed against him. Perez, a nine-year-APD veteran, is appealing his termination but the proceeding is on hold until the criminal case is resolved. Sandy retired in late 2014.
Under the state Constitution and court rules, a verdict in a criminal case must be unanimous, so state District Judge Alisa Hadfield declared a mistrial.
Court rules require a scheduling conference in the case be held in 30 days. At that time, Hadfield would set a new trial date and pretrial deadlines.
The case drew national attention in part because of an APD helmet camera video in which Boyd appeared to be surrendering when he was fatally shot in the Sandia foothills in 2014. Perez and Sandy contended they acted within the law because the knife-wielding Boyd posed an imminent threat to another officer in the hillside standoff. A civil wrongful death lawsuit filed by Boyd’s brother was settled by the city for $5 million in 2015.
Earlier that year, District Attorney Kari Brandenburg filed criminal charges against Sandy and Perez. But Hadfield in April 2015 disqualified Brandenburg from prosecuting the case after defense attorneys argued that she had a conflict of interest.
Brandenburg then appointed prominent Albuquerque attorney Randi McGinn as special prosecutor. McGinn took the case for $5,400, plus costs – the same amount paid to contract public defenders in a first-degree murder case.
After the mistrial Tuesday, McGinn told reporters the question of a retrial “is going to be somebody else’s decision.”
Torrez, a Democrat who is running unopposed for the office in the Nov. 8 general election, issued a statement that he didn’t want to “rush” a decision on the case and planned to discuss the matter with McGinn.
Asked whether she still had the authority to dismiss the criminal charges, McGinn told the Journal it was “an interesting question.” She promised to research the issue.
When the Journal asked Brandenburg whether she or McGinn had the authority to decide on a retrial, a DA spokeswoman responded by email on Thursday, “Regarding retrying of the criminal cases and appointment of special prosecutor; Ms. Brandenburg cannot answer at this time, there are many factors to consider prior to any decisions being made.”
Asked whether Brandenburg was still disqualified from the case, DA spokeswoman Virginia Padilla replied, “We’ve answered your question.”
So far, the case has cost the DA’s Office $82,850.17, including McGinn’s fees.
Brandenburg was disqualified after the Journal reported that she had been under investigation by the APD in 2014 for actions she took in response to a burglary investigation of her son.
Attorney General Hector Balderas reviewed the APD investigation and concluded Brandenburg had violated no criminal laws. But he said she created “an appearance of impropriety” by contacting victims, and reimbursing one of them, in property crime cases in which her adult son was a suspect.
National police shooting expert Philip Stinson told the Journal this week it is rare for a criminal prosecution of a police officer for an on-duty shooting to end in a mistrial.
Of the 77 such prosecutions since 2005, only four ended in a mistrial, Stinson said. Three of those cases were later dismissed. Only one will be retried. Officers in 21 of those cases were acquitted by a judge or jury at trial.
“These are not easy cases for juries. They’re very reluctant to convict an officer in these cases. They want to give the officer the benefit of the doubt,” said Stinson, a criminologist and associate professor at Bowling Green State University in Ohio.
Stinson said he has studied police fatal shootings over the past decade and believes the case wouldn’t have been prosecuted criminally “but for the video, because he (Boyd) had a knife in each hand. It just looked to me that a reasonable officer could have concluded that there was an imminent threat of serious bodily injury from those knives.”
A nine-year veteran of APD, Perez, who is married and has three children, is currently unemployed.
“He doesn’t have the resources to pay for what it cost to have a defense,” attorney Robles said. “No normal person does.”
Before joining APD, Perez, 35, served two tours in the first Iraq War as a U.S. Marine and was awarded a Purple Heart after he was injured in 2003 when his military caravan hit an improvised explosive device. His former SWAT supervisor testified at trial that Perez was a “stellar” APD officer.