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Prosecutors face challenge convicting New Mexico officers of murder in on-duty killing

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ALBUQUERQUE, New Mexico — Prosecutors will have a tough time winning murder convictions against a New Mexico police officer and a retired detective in the on-duty killing of a homeless man — despite video that appears to show the man surrendering, experts said Wednesday.

The law gives officers protection based on their perceptions — not necessarily the realities — during dangerous encounters, according to Michael Benza, a senior law instructor at Case Western Reserve University School of Law.

As a result, he said, the officers could be acquitted if defense lawyers can persuade jurors that they were afraid at the time 38-year-old James Boyd was fatally shot in the foothills of the Sandia Mountains.

"No matter what the reality is, jurors will have to consider what the (perceptions) of the officers were at the time," Benza said.

A judge ruled Tuesday after a preliminary hearing that Albuquerque Officer Dominique Perez and former Detective Keith Sandy must stand trial on charges of second-degree murder and voluntary manslaughter in the 2014 death of Boyd, whose videotaped shooting sparked national outrage.

Authorities say Boyd, who was schizophrenic, was camping illegally and threatened to kill officers while pulling two knives.

The video from a helmet cam worn by an officer at the scene showed Boyd gathering his belongings and appearing to surrender after an hours-long standoff.

Police then detonated a flash bomb near Boyd, who dropped his bag and pulled the knives before Perez and Sandy shot him as he fell to the ground.

"The video isn't a slam dunk for the prosecution" because it showed Boyd with knives near the handler of a police dog, said Philip Stinson, a criminologist at Bowling Green State University.

An analysis by Stinson and the Washington Post found that only 11 of 54 officers charged with murder or manslaughter over the past decade have been convicted.

Twenty-one of those cases did not result in convictions and the others are pending, according to the study.

Stinson said the conviction rate of police officers is low because jurors and judges are reluctant to find them guilty in street encounter "when split-second life or death" decisions were made.

At the preliminary hearing, defense lawyers argued that Perez and Sandy had no choice about opening fire because Boyd had threatened officers.

The lawyers said the defendants were following their training and protecting their colleagues.

Special Prosecutor Randi McGinn countered that Perez and Sandy created the danger by coming to the scene with the intent of attacking Boyd during a "paramilitary response."

"He was shot in the back and in the side," McGinn said in her closing argument. "That shows that he was not a threat when they shot him."

Perez and Sandy are the first Albuquerque officers to face criminal charges in more than 40 police shootings since 2010 by officers with the department.

If convicted of second-degree murder, they could face up to 15 years in prison. A voluntary manslaughter conviction carries a term of up to 3 years. The men are not in custody.

The footage of the shooting generated angry protests in Albuquerque even before the nation watched similar scenes unfold in Ferguson, Missouri, after a white police officer killed an unarmed 18-year-old black man.

Benza said the defense team might use that angry response to push for a change-of-venue to move the trial to another part of the state.

But he doubted such an effort would succeed.

"We live in a global media world so that shouldn't be an issue," Benza said. "Prosecutors still have to make their case."


Follow Russell Contreras at http://twitter.com/russcontreras

PHOTO: This Tuesday, Aug. 18, 2015 photo, former Albuquerque detective Keith Sandy, left, and Albuquerque officer Dominique Perez, right, talk to defense lawyer Sam Bregman, center, before a preliminary hearing begins in Albuquerque, N.M. A judge ruled Tuesday that Perez and Sandy must stand trial for the fatal shooting of a homeless man in 2014 but experts say it will be difficult to get convictions. (AP Photo/Russell Contreras)
This Tuesday, Aug. 18, 2015 photo, former Albuquerque detective Keith Sandy, left, and Albuquerque officer Dominique Perez, right, talk to defense lawyer Sam Bregman, center, before a preliminary hearing begins in Albuquerque, N.M. A judge ruled Tuesday that Perez and Sandy must stand trial for the fatal shooting of a homeless man in 2014 but experts say it will be difficult to get convictions. (AP Photo/Russell Contreras)

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