The Right Thing to do is Dismiss Charges Against Keith Sandy

Special Prosecutor Randi Mc Ginn has decided to drop murder charges against former APD Police Officer Dominique Perez. She has also decided not to drop charges against his co defendant retired Police Officer Keith Sandy, deciding to let newly elected Bernalillo County District Attorney Raul Torrez make that decision.

Both APD Officers were charged with the murder of homeless and mentally ill camper James Boyd in a 2014 standoff in the Sandia Foothills. The James Boyd case is the very shooting Chief Gordon Eden called justified the day after it occurred in a press conference. The City of Albuquerque paid $5 million dollars to settle the civil lawsuit filed by the Boyd family.

The criminal trial ended in a mistrial with the jury deadlocking by voting 3 to find guilt and 9 voting to find not guilty of murder.

Special Prosecutor Randi Mc Ginn said “it was “the right thing to do” in dismissing the case against Dominique Perez. It would also be the right thing to do to dismiss the case against Keith Sandy. Justice has been served with the trial even if you disagree with the outcome.

THE PROCESS FOLLOWED IN DECIDING ON A NEW TRIAL

I am a former Bernalillo County Chief Deputy District Attorney who has prosecuted violent crime cases, including murder and rape cases.

A prosecutor is required to go through a very difficult and lengthy process of review and deliberation to decide to dismiss a case after a jury “dead locks” and cannot reach a verdict of “guilty” or “not guilty”.

The prosecutor must determine what is right and if justice will be served with a new trial.

The process includes reviewing all the physical and forensic evidence and testimony presented at the trial, determining if anything was missed, and then deciding whether the outcome could be any different presenting the same evidence during a new trial before a different jury. If “new evidence” somehow surfaces after the trial, a decision must be made whether that “new evidence” will make any difference to a different jury.

McGinn had said there was new evidence brought to her attention after the trial. Any “new evidence” discovered must be compelling and convincing enough to change an outcome of a trial.

The prosecutor will confer with victims or members of a deceased victim’s family’s of a crime to get their input on a new trial. The prosecutor will also confer with the witnesses to determine if their testimony will change.

If a victim or a victim’s family members were witnesses in a case, a decision must also be made whether to put them through an ordeal of another trial.

A new trial is also a financial decision. Simply put, will a new trial be too great of a burden on the resources of a prosecuting agency to the extent that it will affect other cases in the office?

Ultimately, the biggest determining factor is “will justice be served with a new trial”.

JUSTICE HAS BEEN SERVED

This was a case that needed to be charged and needed to be tried because police officers must be held to a higher standard and they cannot be above the law, any time.

Police Officers cannot be allowed to break the very laws they are sworn to enforce, and there are times that only a jury must make that decision.

During the last 7 years, Albuquerque has had 41 police officer involved shootings with close to $50 million dollars paid out in settlements for police misconduct cases and the use of deadly force cases.

Many of the deadly force cases settled involved the mentally ill. The Albuquerque Police Department is under a federal consent decree after a finding of a “culture of aggression”. New policies and training are being implemented by APD to deal with crisis intervention and the mentally ill.

If we have learned a single thing during the last 7 years as a community, it should be that deadly force cases and excessive use force cases by police officers must be, without any exception, justified.

I watched the the trial by “live stream” provided by a TV station. I believe justice has been served with the criminal trial of Dominique Perez and Keith Sandy. Both were afforded due process of law and given a fair trial. Both the prosecution and the defense did an exceptional job in presenting their cases.

It is not likely that a new trial of Keith Sandy will be any different, it probably will result in another dead locked jury or for that matter a verdict of not guilty.

I worked with special prosecutor Randi Mc Ginn in the District Attorney’s office violent crimes division over 30 years ago, know her well and respect her trial skills. I trust her judgment. I am confident that she has evaluated the case.

Mc Ginn in a TV interview immediately after the trial acknowledged the outcome was probably the best that could have been expected under the circumstances.

It would be the right thing to do to dismiss the case against Keith Sandy.

Justice has been served with the trial and the jury verdict as is.

APD is in the middle of a reform process relating to its use of force and use of deadly force policies, and hopefully lessons have been learned by APD from this very difficult case that was so divisive to our community.

2017 Mayor’s Race Needs Public Finance Reform

The influence of big corporate money in elections allowed by the US Supreme Court decision Citizens United is destroying our democracy. Political campaign fundraising and big money influence are warping our election process. Money spent becomes equated with the final vote. Money drives the message, affects voter turnout and ultimately the final outcome.

All too often, good, decent and qualified candidates do not run because they cannot raise the money. Public financing of candidates provides a glimmer of hope to stop the buying of elections by candidates and their wealthy donors.

2017 MAYOR’S RACE AND BALLOT INITIATIVES

All the reasons I ran for Mayor in 2013 still exist today, but things are worse: failed city hall leadership by the Mayor and City Council, failed civilian oversight and deterioration of the Albuquerque Police Department, higher violent crime rates, a declining and failing city economy and high unemployment rates.

When I ran for Mayor, I supported increasing the minimum wage, advocated for the working class, supported marriage equality and opposed the voter initiative placing restrictions on a woman’s right to choose.

With limited public financing, I could not get my message out against a well funded incumbent Mayor in a low voter turnout election who opposed marriage equality and who supported the voter initiative placing restrictions a woman’s right to choose.

There are additional hotly contested issues that will be emerging in the 2017 municipal election. The mandatory paid sick leave voter initiative and changes to Albuquerque’s public finance laws will be on the ballot. Both ballot initiatives will have strong, organized and very well financed opposition. No doubt the disastrous ART bus project destroying Route 66 will be hotly debated by candidates.

I have a strong desire to run for Mayor again in 2017 and if I do it will be as a privately financed candidate because the existing public financing available is inadequate.

Albuquerque’s public finance laws need to be overhauled. If I run, I will try to get the donations to run an effective campaign on the issues.

In 2017, as many as eight (8) candidates will be running for Mayor. One (1) candidate has said he intends to seek public financing and three (3) other candidates have said they will seek private financing, with one announced candidate already having raised over $40,000 dollars.

I predict the 2017 Mayor’s race will have the successful candidate spending at least $1 million dollars for the primary election and another $500,000 for the runoff, if there is one.

HISTORICAL BACKGROUND

Historically, Albuquerque voters have shown a desire to place limits on campaign contributions for municipal elections. All reasonable attempts to curb the influence of big money in Albuquerque’s municipal elections have been struck down by the courts over the years.

When Albuquerque voters first enacted the City Charter, it provided that candidates for City Council and Mayor could only raise and spend the annual salaries of the position they were seeking. This system worked for a number of years until a candidate sued who wanted to spend $1 million dollars of his own money to run for Mayor and Albuquerque’s election spending caps were struck down by the Courts.

The New Mexico constitution provides that all municipal elections are non partisan. No party affiliation is given when candidate’s names appear on the ballot. The reality is, municipal elections are not non partisan, thanks in part to party loyalty, ideology and the news media, especially the Albuquerque Journal, always identifying candidate’s party affiliation, even after they are elected.

Albuquerque’s current election law provides that in order to get on the ballot for Mayor, you must collect approximately 3,600 qualifying signatures from registered voters. If one candidate does not get 50% plus one, a runoff is held between the two top vote getters.

Current public finance laws provide that a qualifying candidate gets only one lump sum for the entire election, now at approximately $360,000. Nothing in public finance is given for a run off placing public finance candidates at a disadvantage to privately financed candidates and incumbents.

In the 2009 Mayor’s race, all three candidates for Mayor, including the incumbent, qualified for public financing and there was a level playing field. The incumbent lost.

Incumbency does matter when it comes to raising money. Mayor Martin Chavez raised $1.2 million for one of his elections. Mayor Berry raised and spent over $900,000 for his reelection.

BEEN THERE, DONE THAT!

In 2013, I was very idealistic and naïve. I decided to run for Mayor as a publicly financed candidate thinking $360,000.00 would be enough financing, and I was wrong. I did not want to be beholding to anyone had I been elected.

In 2013, I was the only publicly financed Mayoral candidate, with Margaret Chavez Aragon and Paul Heh also attempting to collect the $5.00 qualifying contributions and their efforts failed.

Under Albuquerque’s existing public finance ordinance, once a candidate agrees to accept public financing, a candidate is prohibited from collecting any other donations and must agree to a spending limit. Mayor Berry decided not take public financing which allowed him to raise and spend unlimited amounts of money for his re election.

My campaign was given only 8 weeks to collect 3,600, qualifying $5.00 donations from Albuquerque residents and registered voters, which was a daunting and a very difficult task. Not surprising, Berry’s appointed City Clerk refused to set up a system to permit electronic transactions by donors, such as debit and credit cards, even though it was allowed by ordinance. The City Clerk required the campaign to collect cash and use paper receipt books and it is a system to set up failure.

Despite the limitations imposed, my campaign collected 5,000 qualifying donations when 3,600 were required. The $5 dollar donations have to come from registered voters, otherwise the donations do not count. Had the campaign failed to collect the minimum number of qualifying donations, all of what was collected would have been kept by the City.

Once my campaign accumulated the required number of $5.00 donations, we were actually given approximately $340,000.00 based on voter registration numbers of those eligible to vote based the last Mayoral election.

Being a privately financed candidate, Mayor Berry had no fundraising cap and no spending limit. Berry’s campaign was allowed to raise money from any one throughout the 10 month campaign, all the way to Election Day.

There was also Federal Court litigation relating to companies that do business with the City filed by Berry donors that struck down the City’s campaign finance law.

When you read Berry’s campaign finance reports, which are online, Berry actually raised $904,623 and in-kind contributions of $5,176 for a total of $909,799. For a supposedly non-partisan race, Berry’s 2013 contributors were extremely top heavy with major Republican donors and players and reads like a who’s who of big wealthy donors.

Berry donors included the Republican National Committee, oil and gas companies and Republican elected officials and Republican Party officials.

Mayor Berry’s margin of victory was roughly proportionate to the three to one margin he spent to get elected by the lowest municipal voter turnout since 1977, with only 19% of registered voters actually voting.

SUGGESTED CHANGES TO ALBUQUERQUE’S PUBLIC FINANCE LAWS

On the October, 2017 municipal ballot will be the proposed City Council changes to Albuquerque’s public finance law increasing the amount of public financing for Mayoral candidates from $360,000 to $640,000.

The proposed City Council increase in public financing will not apply to the 2017 Mayor’s race. 2017 Mayor Candidates will be running on the existing public finance restrictions.

The proposed City Council changes to Albuquerque’s public finance laws that will appear on the 2017 ballot are doomed for failure because of the affect of Citizens United.

However, the Albuquerque City Council still has time to make additional changes to the 2017 municipal ballot for future municipal elections, if they have the political backbone.

Following are recommendations for changes to the City’s public finance and election laws:

1. Allow four (4) months and two (2) weeks, from January 1 to May 15, to collected both the qualifying donations and petition signatures, and private campaign donation collection.
2. Allow the collection of the qualifying donations from anyone who wants, and not just residents or registered voters of Albuquerque. Privately finance candidates now can collect donations from anyone they want and anywhere in the State and Country.
3. Once the allowed number of qualifying donations is collected, the public financing would be made immediately available, but not allowed to be spent until starting May 15.
4. Permit campaign spending for both publicly financed and privately financed candidates only from May 15 to the October election day.
5. Return to candidates for their use in their campaign any qualifying donations the candidate has collected when the candidate fails to secure the required number of qualifying donations to get the public financing.
6. Mandate the City Clerk to issue debit card or credit card collection devices to collect the qualifying donations and to issue receipts and eliminate the mandatory use of “paper receipts”.
7. Increase from $1.00 to $2.50 per registered voter the amount of public financing, which will be approximately $900,000, and allow for incremental increases of 10% every election cycle keeping up with inflation.
8. Allow for additional matching public financing available for run offs at the rate of $1.25 per registered voter, or $450,000.
9. Albuquerque should make every effort to make municipal elections partisan elections by seeking a constitutional amendment from the legislature to be voted upon by the public.

CONCLUSION

Albuquerque’s public finance laws need major overhaul to be effective. Every effort should be made to make Albuquerque’s public financing laws for municipal elections to legally provide for a “dollar for dollar” match to privately raised funds by candidates, thereby providing a real level playing field. Otherwise I am afraid the failure of public financed campaigns will be the norm and not the rule.

Pat “The Artful Dodger” Davis

www.koat.com/article/video-questions-raised-after-city-hires-independent-investigator-for-apd-lapel-video/8361714

Albuquerque City Councilor Pat Davis has perfected the art of “dodge and deflection” and it was in full view for all to see in a KOAT TV interview.

City Councilor Pat Davis is supposed to be an ex cop and at one time was the spokesperson for the DA’s office. Davis apparently thinks what happened with the allegations made by a former APD records custodian of altering and tampering with evidence does not constitute criminal conduct. The City Councilor apparently does not understand the concept nor meaning of “conflict of interest” nor “appearance of conflict of interest”.

City Councilor Pat Davis says he has confidence in the process of selecting an outside investigator. He also says “who we hire will be transparent; their work product will be transparent for all to see”. Sorry Pat, transparency does not negate a conflict of interest nor an appearance of a conflict of interest. I noticed Pat’s use of the word “we”, when the Council will not have any part in the selection process nor a say in the final work product.

Davis calling for an outside private investigation paid by the City just doesn’t cut it, not when it comes to conduct that just may be found to be criminal. Davis should be calling for an independent law enforcement agency, like the FBI or State Police, to investigate the allegations. Davis also conveniently forgets APD is working under a Federal Consent decree and the Department of Justice should be ask to look into the allegations.

The City Attorney will be selecting and hiring the investigator behind closed doors and the City Council will not have any say who will be hired. The allegations made by the former records custodian include that high ranking members of APD command staff and the City Attorney’s office ordered the withholding or altering and tampering of video evidence. There is a clear conflict with the City doing its own investigation or hiring someone who they want to do the investigation. If the City does not like what is found, it can simply say do it again.

Davis has really perfected his skills of deflecting answering reporters’ questions and making hard decisions. When a KOAT TV reporter tried to point out the fact that it is a conflict of interest when the City Attorney’s office will be selecting the private investigator, Davis ignores it and moves on to discuss transparency.

Not surprising, Davis also deflected in front of an audience of his own constituents the City’s decision not to put the ART bus project on the ballot saying there was nothing he could do to stop the project because of past City Council votes when he knew the City Council still could put it to a public vote.

ART Bus Project Funding in Serious Jeopardy

Federal ART Funding Gets Less Certain

Congress’ decision to not consider outgoing President Obama’s budget jeopardizes the bulk of the ART Bus Projects funding and places the entire project at serious risk. The letter of commitment from the Federal Transportation Administration (FTA) for the ART Bus Project the City was given is not worth the paper it was written on and nothing more than a promise. In 2017, the City of Albuquerque will not be getting a nickel from the FTA, even though construction of the ART bus project is scheduled to be completed by September of 2017. Mayor Berry and the City Council have gambled with taxpayer’s money on getting a $69 million dollar federal grant that is now in total jeopardy. They were repeatedly warned, but no, they wanted to cram the project down taxpayer’s throats without a public vote.

Where is the money going to come from to pay the general contractor once work is completed September of next year? Mayor Berry should order an immediate cessation of the project until they have a definitive statement whether or not the grant money will ever be received by the City. But no, the Albuquerque City Council voted to go ahead and spend the grant money we may never get. What this means is, taxpayers will wind up footing the entire bill for Berry’s Boondoggle ART Bus Project. Berry and the City Council are going to end up with at least a $69 million dollar bill they do not have the money pay for it. The Mayor and City Council will be force to take money out of the general fund, cut essential services or even raise taxes, all for a poorly designed bus route that is destroying historical Route 66.

There is a municipal election next year in October, and all the City Councilors running for re-election and candidates for Mayor who support ART need to be held accountable.

Turn Investigation Over to Independent Law Enforcement Agency

City Counselor Pat Davis is a former cop and City Attorney Jessica Hernandez is a licensed New Mexico Attorney. They should know the difference between Civil law and Criminal law. Davis and Hernandez now want to hire someone outside of City Hall to investigate the allegations made by a former APD records custodian that there was erasing, altering, corrupting or tampering and withholding of evidence of police officer lapel camera video in police officer involved shooting cases. The allegations also include high ranking members of the APD command staff and the City Attorney’s office who ordered altering and withholding of evidence in cases.

Pat Davis goes so far as to say appointing and hiring of an “outside investigator” or counsel is a means to “avoid potential conflicts of interest” and boost public confidence in the review process . It will not. Simply put, the allegations that are being made are criminal in nature, and need to be investigated by an independent law enforcement agency such as the FBI, State Police or even the Bernalillo County Sheriff’s office. If something is in fact found, the evidence needs to be turned over to a prosecuting agency. When the City selects and pays an outside investigator, you need to question who is hired because the City and APD will hire who they want, including any private investigation firm that employs retired APD police officers, and pay them what they want and for the results they want.

Councillor Davis, City Attorney Jessica Hernandez and the Berry Administration once again ignore the fact that APD is operating under a Federal Consent Decree and that the Federal court has jurisdiction over APD. The Court Approved Settlement Agreement covers APD’s mandatory use of lapel camera videos and it does not authorize tampering with evidence and lapel camera video footage. The investigation of lapel camera video alteration should be turned over to the Federal Monitor for a special audit and he could request assistance from the Department of Justice and the FBI.

On November 18, 2016, Federal Court Monitor James Ginger presented his fourth report to US District Judge Robert Brack. During the hearing, US Attorney Damon Martinez informed the Court that the Mayor and City engages in a disturbing pattern of conduct where press conferences are held regarding changes at APD never discussed with the Department of Justice that may be covered by the consent decree.

The hiring of a private investigator by the City to discuss the investigation of lapel camera video alteration should be discussed with the US Federal Court Judge, the Court appointed Federal Monitor, Department of Justice and the United States Attorney.

When you are in a hole, stop digging!

When it comes to Berry’s Boondoggle ART bus project, City Councilor Ken “I am running for Mayor for sure this time” Sanchez really needs to remember that old saying, “when you are in a hole, stop digging.”

First, City Councilor Ken Sanchez supports and votes to proceed to build the ART bus project ignoring pleas to put it to a public vote, over the objections of many of his own constituents and businesses in his City Council District, even when the federal funding has not been approved. Councilor Ken Sanchez then announces he wants to give free bus rides to people who will never use ART saying it will bring back business to the area. Councilor Sanchez then says he wants a “tax free zone” along Central to help businesses affected by the ART bus project where there would be no charging gross receipts tax on sales, knowing full well the State needs to approve the proposal, which is not likely. A “tax free zone” will not help at all if there is no business or no sales in the first place because of ART, especially when they go out of business. Now Councilor Sanchez says he is “shocked” that only $100,000 is available for ART loans when he was told $2.5 million would be available.

The City’s Economic Development Director Gary Oppedahl also says that the loans will only be available to businesses that could prove that ART construction hurt their sales and that loans would only be available for the period of time when construction was occurring right in front of their business, not across the street. In other words, the City wants you to borrow money because you are losing profits as a result of the ART bus project and you have to pay it back with interest, but you first have to wait to get the loan and prove your in debt!

Would someone please take away the shovel from Ken?