The prosecution of former Secretary of State Rebecca Vigil-Giron and three co-defendants on a long list of corruption charges teeters today on a precipice between dismissal and what could be a long, tedious trial. The fulcrum against which prosecutors and defense attorneys will attempt to tilt the case in their favor is today’s deadline 2nd Judicial District Judge Albert “Pat” Murdoch set a month ago.

“I do expect by tomorrow a document designating who the new prosecutor is,” Vigil-Giron’s attorney Robert Gorence said yesterday. “If that does not happen I will file a motion asking for the sanctions that the judge envisioned.”

2nd Judicial District Attorney Keri Brandenburg, Attorney General Gary King

Those sanctions include tossing out the case. Absent an “entry of appearance” filed in Murdoch’s court today naming a new prosecutor, Gorence anticipated filing a motion on Monday to dismiss the charges. Other motions to dismiss the case on speedy trial violations are already on file with the court.

On the prosecution side, as of late yesterday no attorney was prepared to file an entry of appearance. 2nd Judicial District Attorney Keri Brandenburg has taken over some aspects of the case, but her offices’ role is primarily to find a special prosecutor. Any action from that office today would be a last -minute procedural move, which Brandenburg did not anticipate in an interview yesterday.

Murdoch disqualified the office of Attorney General Gary King in March. That move was to avoid any appearance of a conflict of interest arising from the AG’s role as counsel for the Secretary of State, and one of the defendants’ former employment at the AG’s office.

At a May 16 hearing, Assistant Attorney General Chris Lackmann said the AG’s office was on the brink of an agreement with the 2nd Judicial District DA. The product of those negotiations emerged in the form of a joint powers agreement signed by King three days after the hearing and by Brandenburg the next day, May 20.

A state Department of Finance and Administration official inked state approval for the agreement June 6. So far, neither of the prosecuting attorneys has formally advised the court of the arrangement.

“Our hands are off. It’s their show,” A.G. Deputy Director of Communications Lynn Southard said yesterday.

The terms of the joint-powers agreement state that “The DA is solely responsible for prosecution of the Cases.” In legal-land, though, things are seldom so simple.

Brandenburg’s office posted the first of three planned legal notices in the Albuquerque Journal on Tuesday, and has set two notices for publication in the State Bar of New Mexico Bar Bulletin on June 22 and 29. Those notices request proposals from attorneys interested in taking over the prosecution. As of yesterday, that’s as far as Brandenburg’s office had gone with the case.

“We haven’t been participating in the hearings in this. Our role is to hire a special prosecutor,” Brandenburg said. “Since I’ have not been at the court hearings, I have not spent time going over the files. I am not aware of what the issues are before the court.”

Whatever direction the case tilts after courts close today, the momentum could easily be redirected by appeals. One matter for appeal apparent to even the most rank amateur observer would be continuance of the case past Murdoch’s first April 29 deadline for the AG’s office to find a replacement prosecutor. Gorence told Murdoch at the May hearing the AG’s office had simply ignored that deadline. He confirmed in an interview yesterday that matter is ripe for appeal if his client were to lose the case at trial.

The AG’s office filed a motion on April 15 asking for 90 days to find a replacement. In the May hearing to consider that motion, Murdoch gave them until today, setting an extension for the April 29 deadline two weeks after the deadline had lapsed. Though the joint-powers-agreement says Brandenburg’s office is now responsible for the case, neither office has yet advised the court or the defense attorneys of the agreement.

The AG’s April motion to reconsider, in which prosecutors references the time required to properly find a replacement prosecutor, could become part of a prosecution appeal if Murdoch affirmatively entertains all the remedies defendants sought, as he said in May he would do if no replacement attorney is found by today. The remedy they sought is of course to have the case tossed out.

Vigil-Giron, media consultant Armando Gutierrez, Joe Kupfer and Kupfer’s wife Elizabeth Kupfer were charged in a 49-count grand-jury indictment filed Aug. 19, 2009, stemming from allegations they misappropriated federal voter-education funds. The charges included fraud, money laundering, tax evasion, evidence tampering and soliciting or receiving kickbacks. The Kupfers were also indicted on federal tax-evasion charges in December.

Attorney Erlinda Johnson, who represents Elizabeth Kupfer, alleged at the May hearing that King’s office had violated procurement codes in his prosecution of charges she said stem from allegations her client violated the procurement code. Johnson said King’s office had shopped the case among other attorneys without going through state procurement processes. Brandenburg’s effort to request proposals for a special prosecutor in the case is an attempt to strictly comply with state procurement rules.

Brandenburg said state law prohibits the Attorney General from appointing a special prosecutor, which is why a joint powers agreement with her office was necessary. She was perplexed at the defense allegation that the AG had violated procurement rules in seeking a replacement.

“That doesn’t make any sense,” Brandenburg said. “They are saying they have a conflict, they need to conflict out, they are saying the court said they have to conflict it out, there is no way they can conflict it out.”

The deadline for prospective special prosecutors to submit proposals to Brandenburg’s office is July 6. After chief deputy prosecutors in her office review any responses, prospective prosecutors would be interviewed and the best suited candidate selected. “Hopefully our goal is to have that done by July 20th,” Brandenburg said.

The joint powers agreement stipulates terms of payment for the prosecution, but anticipates a potential scenario in which the state’s top prosecutor runs out of money to pay for the case. Brandenburg’s office would bill the AG’s office monthly and receive payment within 10 days. Her office is obligated under the agreement to help King’s office persuade the state legislature to appropriate more funds for the case.

If King’s office can’t get more money from the legislature, or otherwise doesn’t have enough money to pay for the prosecution, responsibility for the case would revert to his office. That would put matters back to where they’ve been for the past few weeks. Murdoch has already ordered King’s office off the case, and has made clear that he won’t wait indefinitely for the AG to find someone else to handle the case.

Additional information: State of NM Joint Powers Agreement

UPDATE: After posting this story, the Watchdog learned the Office of Attorney General filed a June 6 response to earlier motions to dismiss the case. The June 6 response includes a reference to the information otherwise included in this report – that the 2nd Judicial District Attorney Keri Brandenburg has entered a joint powers agreement with the AG’s office, and DA’s office is seeking proposals for a special prosecutor to handle the case.
The June 6 response argues that delays in a proceeding resulting from defense motions should not count against the prosecution’s obligation to provide a speedy trial. The response does not comprise the entry-of-appearance filing a defense attorney said would be necessary to forestall a renewed motion to dismiss. The Watchdog will keep you updated as further action in the case emerges.