Friday, October 7, 2016

Killer Cop Trial in ABQ Goes To The Jury

I've been periodically watching the trial of Dominique Perez and Keith Sandy on the Livestream for the past two weeks or so. These are the APD officers who shot and killed James Boyd in the Sandia foothills on March 16, 2014, triggering an outpouring of public rage against the constant killing APD had long been engaged in. The protests were large and sustained, and while there was a spate of killings by police in Albuquerque following the Boyd execution in the mountain foothills, eventually the DoJ came down hard on APD for their infamous 'pattern and practice' of 'unconstitutional policing.'

It took a while, but things have changed, and we haven't seen another killing (by APD) like Boyd's execution for a couple of years now, and the rate of killings by APD has been drastically cut. That isn't to say that people aren't still killed by law enforcement in Albuquerque. The rate is still rather high -- though not as high as it once was -- because other agencies such as US Marshals are doing most of he killing these days. For whatever reason, they appear to immune to accountability, but that's another issue for another time.

Perez and Sandy were originally charged with Murder 1 by discredited Bernalillo County DA Kari Brandenburg in January 2015. This was the first time she had ever charged any police officer in the death of a civilian -- after 16 years in office and dozens and dozens of police killings many of which were judged to be "unconstitutional."

But the combination of massive protests, a growing national reputation for a police department out of control, the economic impact of people staying away from Albuquerque and New Mexico because of the poor reputation of the police force, and the scathing DoJ report on the manifest failures of the Albuquerque Police Department spurred her into action, action for which she has been decried by some, praised by others.

In the end, she withdrew from the prosecution under pressure, appointing another attorney as special prosecutor, Randi McGinn. McGinn has a reputation for going hard against police misconduct, but watching her performance at this trial, I have to wonder about her level of competence. She seemed poorly prepared, disorganized, and at a loss when a blizzard of objections by the defense were sustained by the judge. According to what the judge said during arguments over jury instructions, McGinn was trying to apply a civil case standard to this criminal trial, and it didn't work. That was an interesting comment, though I'm not sure the judge was correct. It looked to me like McGinn wasn't thoroughly prepared and she had only very modest backup. In other words, it was a sketchy prosecution from the get-go. 

On the other hand, the defense was thoroughly prepared and appeared to be very competent and in charge. It sounds sexist to say since both lead defense attorneys were men, but they had a very competent and prepared woman on their team whose skill at examining and cross examining witnesses was excellent. Nevertheless, the male lead defense attorneys were loud and belligerent, and their constant objections essentially forced the trial to favor the defense. The prosecution hardly objected at all, and most of their objections were overruled.

So. Ultimately the two killers (no one denied they killed Boyd) testified in their own defense and both came across as reasonably decent men who were "just doing their job." Which was of course to kill.

Perez was a Marine who'd served two tours in Iraq. He'd been badly injured in an IED explosion during his second tour, and when he got out of the Marines he decided to try for a position with the Albuquerque Police Department SWAT team. He was hired and had been with SWAT for a number of years when the "Boyd incident" happened in 2014.

Sandy had a more checkered past. He was fired from the State Police for double dipping which was considered dishonesty. He applied to APD as a 'lateral' transfer, and because APD had lowered its standards, he was promptly hired and put on the ROP team. ROP -- Repeat Offender Project -- has been disbanded due to intense criticism by the DoJ in their report on APD, but at the time of Boyd's killing, it was notorious as essentially a death squad. But then, given the rate of homicide by APD in those days, the whole department was seen by many as a death squad.

SWAT was more prestigious and advanced, and they had a wider range of options when confronting the Bad Guys, but they were no slouch when it came to killing. On the other hand, ROP was more informal and testosterone poisoned, and their whole reason for being appeared to pivot on their use of firearms no matter what. The dead piled up.

In Boyd's case, both Sandy and Perez were on the mountain as "lethal cover" for other officers -- or so they said -- who were preparing to arrest Boyd and take him into custody using force. It appears that Perez was assigned to the mountain by his SWAT supervisor whereas Sandy assigned himself, though that's not entirely clear. He was in communication with his supervisors, but I didn't hear whether they told him to go to the mountain or he decided to go on his own and informed his supervisors while he was en route. There was already another sniper on the mountain ready to take out Boyd if and when the order came.

Boyd was confronted by open space officers on the morning of March 16, 2014, due to a complaint lodged by a nearby homeowner. According to his somewhat strange testimony, Boyd had been camping on the hillside for a month, and this homeowner was increasingly alarmed because he was... there. This homeowner's garage became the assembly point for the dozens of officers who eventually made it to the mountain to observe and attempt to get Boyd to come down. The open space officers were unsuccessful in getting Boyd off the mountain, and I believe that when they confronted Boyd, he used his two knives to defend himself. He pulled them out, at any rate, and the officers withdrew. 

They recognized, however, that Boyd was not in his right mind, and a CIT officer was called to the scene to negotiate with Boyd and to attempt to bring him down from the mountain. Other officers were called to the scene as back up. The crisis officer was making slow progress with Boyd when he was called off by SWAT(?) officers arriving on scene. They had their own negotiator, though it's not entirely clear that he engaged in any negotiations with Mr. Boyd. There were other instances I'm aware of where SWAT "negotiations" consisted entirely of shouted orders and commands, leading to the death by sniper fire of the suspect/subject.

The crisis officer who was pulled off the mountain testified that he had negotiated hundreds of times with mentally ill and otherwise in-crisis individuals, and every one of those cases was resolved "successfully" -- meaning that none of them led to the death of the subject.

Boyd was 38 and was diagnosed paranoid schizophrenic. He'd been in and out of mental health care facilities, homeless shelters, jail and prison for much of his life. He'd been convicted of aggravated assault on police officers -- but the circumstances weren't exactly cut and dried. Apparently his sojourn on the mountain in his own camp was precipitated by an incident at the last homeless shelter where he'd been staying. He got into some kind of altercation with another resident, and it led to his ejection from the facility. Camping alone on the mountainside was his choice apparently, and for the month he'd been there, he had not gotten into any reported trouble. But the nearby homeowner could see his camp and for whatever reason, he was becoming increasingly alarmed. Eventually, he called the city's non-emergency number for someone to go out and check on Boyd. That call led to Boyd's death. I doubt that was the intent of the caller, but you never know.

Boyd was reluctant to leave his camp, in part, apparently, because it was a successful home-place for him in contrast to all the other places where been and wound up in conflict with others. Nothing like that was happening to him in this campsite. He was clearly delusional in his conversations with the police officers who came to get him off the mountain, but he was also quite clear that he didn't want to leave his camp and that he was afraid of the police -- because, he said, they were there to kill him.

Initially they weren't, but as the day wore on, and more and more officers arrived armed to the teeth, it became more and more obvious that's exactly what they were there for, at least to Boyd. When officers started pointing their guns at Boyd, he pulled out his knives in self-defense. This back and forth went on for hours. Eventually, it appears that officers decided to affect Boyd's arrest before it got dark.

To do this they formulated a plan of action that apparently wasn't communicated to all the officers on the mountain (there were 19, I heard, when Boyd was shot, 43 had been involved throughout the day). Keith Sandy was apparently the chief planner and he would be the one to implement the final act.

 The plan was to disorient Boyd with a flash-bang, then loose a dog on him and fire a taser shotgun to disable him. He would then be taken into custody. The plan went wrong. Sandy tossed the flash-bang which landed some distance from Boyd. He didn't appear to react. The taser shotgun had no perceptible effect and may have missed Boyd altogether. The dog was loosed, but when it got close to Boyd, he pulled out his knives. The dog turned back, and as its handler went after the dog, Sandy fired at Boyd with his rifle. Two shots struck Boyd in his arms gravely wounding him. As Boyd began to fall, Perez then fired at Boyd, striking him in the back. Boyd fell to the ground paralyzed and bleeding. Officers approached shouting at him to "drop the knives!" He said he couldn't move. The dog was loosed on him again and he was mauled. He was shot with beanbag rounds. Orders continued to be shouted at him and he continued to say he couldn't move.

Eventually, brave officers approached his body and kicked the knives out of his hands. In time, paramedics were called up from their staging area at the foot of the mountain. Boyd was given first aid and transported to the hospital where one of his arms was amputated in an effort to save his life, but his other wounds were so severe, and he'd lost so much blood, it was essentially too late and he died the next day.

The prosecution claimed that Boyd was not an imminent threat to officers when he was shot, nor was he an imminent threat at any time during the confrontation. He was a potential threat, in that he was armed with knives and he said he would use them. But he was never close enough to officers to carry out that threat, and he never moved toward officers as if to attack them, even after he had been subjected to the flash-bang grenade, the dog, and the taser shotgun. He was actually in the process of surrendering when he was attacked by officers. The officers advanced on him, he didn't advance on them, and thus the officers were solely responsible for putting themselves in danger. Boyd had done nothing to endanger the officers.

Thus, murder.

Unfortunately, the final argument -- that the officers had caused their own danger -- was the one disallowed by the court. That, the judge said, was a civil case argument, inappropriate in a criminal trial. What effect that will have on the jury, I don't know. My sense all along, however, has been that there was little likelihood of conviction. "Just doing their job" has long been an adequate defense in court for police officers.

We'll see...

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