Why Delay Retrial Decision?

Why Delay Retrial Decision?

It’s time someone acts like Harry Truman and end the Boyd case

Someone Needs to Step Up and Make a Decision

BY DAN KLEIN

Harry Truman famously declared, “The buck stops here.” But where does the buck stop with the James Boyd shooting? I say it stops at the desk of special prosecutor Randi McGinn.

The trial of two former cops accused of murder in the shooting death of Boyd ended in a mistrial with nine jurors voting for an acquittal and three for a conviction. Right after the mistrial, McGinn said she would leave the decision on whether to retry this case to the incoming district attorney, Raul Torrez.

When I heard this, I was dumbfounded but not surprised. In New Mexico, decisions always seem to be delayed – and the can kicked down the road. The Taser-gate pay-to-play investigation at the Albuquerque Police Department has been on Attorney General Hector Balderas’ desk, as both state auditor and attorney general, for years. Yet he refuses to make a decision regarding prosecution. His spokesman tells us it is still being investigated. Good god, Hector, how long do you need?

The Boyd case has compromised many politicians since the evening of March 16, 2014. Days after the shooting, newly appointed police Chief Gorden Eden held his infamous “justified” news conference, which sent the city into riots and Mayor Richard Berry into hiding.

Bernalillo County District Attorney Kari Brandenburg was disqualified from prosecuting the case by Bernalillo County District Judge Alisa Hadfield. The court ruled that Brandenburg had a conflict of interest because APD was investigating her activities regarding criminal allegations against her son.

Brandenburg asked every district attorney in the state, and Balderas as well, to take over the prosecution. All declined. Brandenburg then approached McGinn, and she agreed to become the special prosecutor.

What authority does a special prosecutor have? I asked McGinn and Eric Loman (co-counsel with Sam Bregman for Keith Sandy).

McGinn said that after she announced that any future decision regarding the Boyd case would come from Torrez, many people asked why she wasn’t going to make the decision herself. As special prosecutor, doesn’t she have the authority?

The last question was one that McGinn was not sure of. She has instructed her staff to research her authority to determine what, if any, limitations she has. She is also reviewing court rules that require the prosecutor to make a decision to retry or dismiss within 30 days – which means it has to be made before Torrez takes office Jan. 1.

Loman stated that the authority of the special prosecutor is very clear. “As special prosecutor, she (McGinn) stands in the shoes of the district attorney for this one case. The special prosecutor makes all decisions regarding dismissing or charging,” Loman said.

So what should be done? I have spoken to several attorneys who followed the case, and everyone says it should be dismissed because nine jurors voting for acquittal is too steep of a mountain to climb. So why wait months for someone else to make this decision? Our community and the defendants should have this case resolved quickly. If everyone knows what the decision will be, McGinn should make it now.

Torrez will inherit an office with more than 30 police shooting cases that have yet to be reviewed, some going back to 2013! Torrez will have his hands full with an office that from all accounts is in turmoil. He doesn’t need more work, not if the special prosecutor can make the decision now.

No person, except the defense attorneys, knows the Boyd case better than McGinn. By leaving the future of this case dangling for months, the city and the police department will languish waiting for a decision to be made.

The two defendants, Keith Sandy and Dominique Perez, will be left in a legal purgatory. This is unfair to them when those in authority already know what the outcome will be but stand mute.

It’s time to end the Boyd case. McGinn voluntarily accepted appointment as the special prosecutor. Assuming Loman is correct, McGinn does indeed stand in the shoes as the district attorney. McGinn was appointed to this role by Brandenburg, who was elected.

New Mexicans are tired of those in authority not exercising that authority. This is not the time to kick the can down the road but to display courage and leadership and act decisively. I urge McGinn to make a decision now. This is her role, and no one is more capable. The buck stops at her desk.

 

Dan Klein is a retired Albuquerque police sergeant. Reach him through Facebook.

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Benjamin Webb has two decades of food experience in Albuquerque and loves to talk about the comings and goings of the city's food scene.

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