Gorence Motion To Dismiss

SECOND JUDICIAL DISTRICT COURT COUNTY OF BERNALILLO STATE OF NEW MEXICO STATE OF NE\V MEXICO, Plaintiff, CR 2009 04022

VS,

REBECCA VIGIL-GIRON, Defendant. MOTION TO DISMISS

The Defendant, Rebecca Vigil-Giron, requests that this Court dismiss this case pursuant to NMRA 2009 Rule 5-204 until a fair and impartial prosecutor can be secured. As grounds for this motion, Ms. Vigil-Giron states as follows: Attorney General King has a conflict of interest so deep and pervasive, and so clearly violative of the Rules of Professional Responsibility, as well as New Mexico case law, that this Court has a duty to intervene to ensure that the proceedings in this matter are fair and impartial with a conflict-free prosecutor. A meaningful prosecution of this case cannot be conducted by the current prosecutor because of the inherent and structural cont1ict within Attorney General King's otlice.

A. RELEVANT FACTUAL BACKGROUND 1.

On June 1,2009, Ms. Vigil-Giron received an amended target notice

indicating that this matter would be presented to a Bernalillo County Grand Jury on August 17. 2009. 2.

On August 5, 2009, counsel for Ms.Vigil-Giron wrote prosecutors addressing the

conHicts of Attorney General King with respect to the case against her. The letter highlighted the

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following conflicts directly associated with Attorney General King's prosecution of this matter which are stated below (Letters related to indictment attached as Exhibits A & B): a.

Ms. Vigil-Giron's reliance on legal advice from officials of the Attorney General's Office with regard to HAVA bid requirements, HAVA contract preparation, and HAVA contract amendments. In fact, the initial Request for Proposals (RFPs) for the HAVA voter education contract was reviewed by members of then Attorney General Madrid's staff at the request of Ms. Vigil-Giron. As such, Deputy Attorney General Zachary Shandler and Deputy Attorney General Dave Thompson are both critical witnesses with regard to the legal advice they provided to Ms. Vigil-Giron in her steadfast zeal to comply with all Federal and State HAVA requirements.

b.

Ms. Vigil-Giron will seek to call Shandler and Thompson as witnesses at trial. These individuals are current employees of the Attorney General King's Office.

c.

Ms. Vigil-Giron will seek to call the current Attorney General as a witness at trial. Attorney General King will establish the requirements ofHAVA and that politicians frequently and with all due justification appear in political advertisements that have a state and public purpose.

3.

Multiple other appearances of impropriety exist such as Attorney General King's

contract with Mr. Kupfer, Ms. Kupfer's prior administrative supervisory responsibilities over Mr. Lackmann (including his prior termination), and the obvious political conflicts and differences that the co-defendants had with Attorney General King.

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4.

Ms. Vigil-Giron requests that this Court conduct an evidentiary hearing to

determine whether a contlict of interest exists on the part of Attorney General King and, if so, to dismiss the proceedings until an impartial prosecutor can be assigned to this matter. B. ARGUMENT

A trial court should determine whether prosecution by a member by a particular office is inconsistent with a particular standard of professional conduct, justifying disqualification of that person. State v. Pennington, 115 N.M. 372, 378-79, 851 P.2d 494,500-01 (Cl. App. 1993). The court should indicate the relevant standard and the evidence demonstrating a violation of the standard. Id. At the initial stage, the defendant has the burden of coming fOf\vard with evidence and the burden of persuasion. Id. Although there is no Rule of Professional Conduct in New Mexico relating directly to the disqual ification or recusal of a prosecutor,"[a procecutor] should represent public justice and stand indifferent between the accused and any private interesl.'· State v. Chambers, 86 N.M. 383, 387, 524 P.2d 999, 1003 (Cl. App. 1974), overruled on other grounds by State v. Pennington, 115 N.M. 372,375-78,851 P.2d 494,497-500 (Cl. App. 1993). "Prosecutors are quasi-judicial otlicers...\vho have the distinctive role of disinterested and impartial public advocates." State v. Robinson, 2008-NMCA-036,

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16, 143 N.M. 646,650, 179

P.3d 1254,1258 (Cl. App. 2008)(citing State v. Gonzales, 2005-NMSC-025,

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35,128 N.M. 271.

280, 119 P.3d 15 L 160 (2005)). "[H]is methods in procuring [a1conviction must accord with the fair and impartial administration of justice, and he should see that the accused receives a fair trial..... Chambers, 86 N.M. at 386,524 P.2d at 1002. Prosecutors should not be influenced by private interests. State v. Hill. 88 N.M. 216, 219 539 P.2d 236, 239 (Cl. App. 1975). A prosecutor "must also protect the rights of the accused and maintain both actual and perceived

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impartiality." Robinson, 2008-NMCA at ~ 17, 143 N.M. at 650, 179 P.3d at 1258 (citing Hill, 88 N.M. at 219,539 P.2d at 239). In deciding whether to disqualify the entire prosecutor's office, one must determine, "whether a reasonable person standing in the shoes of the defendant should be satisfied that his or her interests will not be compensated." State v. Gonzales, 128 N.M. 271,279, 119 PI3d 151, 159 (2005)(quoting State ex reI. Romley v. Super Ct., 908 P.2d 37, 42 (Ariz.Ct.App.1995)). "[T]he ultimate goal is to maintain both public and individual confidence in the integrity of our judicial system. Romley, 980 P.3d at 43. Here, Attorney General King, through AAGs Badway and Lackmann, apparently believe that the President Lincoln's admonition that "A house divided against itself cannot stand" does not apply to the current Attorney General's Office. Current Deputy Attorney Generals advised then Secretary of State Vigil-Giron exactly how to administer a federal grant. Ms. Vigil-Giron followed and acted on that advice, but current Attorney General King believes that the advice of his current employees was criminal. Clearly, public confidence in the integrity ofjudicial system will unravel if this issue is not resolved immediately in this case.

c.

PRAYER

For theses reasons, the Defendant Rebecca Vigil-Giron requests that the Attorney General's Office be disqualified from prosecuting this matter so that an independent, unbiased and conflict-free prosecutor can be assigned to review the allegations in this matter and so that current employees of the Attorney General's Office are at liberty to testify without fear of retaliation by their current boss, Attorney General Gary King, and for whatever other relief this C0U11

deems just and proper.

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Robert J. Gorence Louren Oliveros Gorence & Oliveros, P.e. 201 12 th Street NW Albuquerque, NM 871 02

I hereby certify that a true copy of the foregoing was faxed/mailed to the following parties this ,l/fhray of Sept., 2009.

Gary K. King Attorney General P.O. Drawer 1508

Santa Fe, NM 87504-1508

Fax: 505-827-5826

J. Miles Hanisee Law Office of J. Miles Hanisee, LLC Attorney for Armando Gutierrez

201 12 th Street NW

Albuquerque, NM 87102-1815

Ann Badway Chris Lackmann Assistant Attorney General Attorney General's Office

11 I Lomas Blvd., NW, Suite 300

Albuquerque. NM 87102

Fax: 222-9009

Hank Farrah Hank Farrah, Attorney at Law Attorney for EI izabeth Kupfer 1400 Central Avenue SE, Suite 2000

Albuquerque, NM 87106-4852

Billy Blackburn

Attorneys for Joseph Kupfer

1011 Lomas Blvd., NW

Albuquerque, NM 87102-1952

Fax: 243-6279

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