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SECOND JUDICIAL DISTRICT COURT

COUNTY OF BERNALILLO
STATE OF NEW MEXICO

STATE OF NE\V MEXICO,

Plaintiff,

VS, CR 2009 04022

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

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

-.

~~ .
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 J. Miles Hanisee


Attorney General Law Office of J. Miles Hanisee, LLC
P.O. Drawer 1508
Attorney for Armando Gutierrez

Santa Fe, NM 87504-1508


201 12 th Street NW

Fax: 505-827-5826
Albuquerque, NM 87102-1815

Ann Badway Hank Farrah


Chris Lackmann Hank Farrah, Attorney at Law
Assistant Attorney General Attorney for EI izabeth Kupfer
Attorney General's Office
1400 Central Avenue SE, Suite 2000

11 I Lomas Blvd., NW, Suite 300


Albuquerque, NM 87106-4852

Albuquerque. NM 87102

Fax: 222-9009

Billy Blackburn

Attorneys for Joseph Kupfer

1011 Lomas Blvd., NW

Albuquerque, NM 87102-1952

Fax: 243-6279