Friday, April 01, 2005


At page 1 of the Albuquerque Journal Thursday a report appears that Otero County Deputy Sheriff Sgt. Billy Anders, a 33 year veteran, has been indicted for voluntary manslaughter. Deputy Anders allegedly killed Earl Flippen. Flippen had just shot another Deputy, and had earlier shot and killed Flippen's girlfriend. Thus, the accused Deputy Sheriff, Sgt. Billy Anders, is indicted for the unlawfully killing, in the heat of passion, of Earl Flippen, after Flippen had killed Flippen's girlfriend, and a Deputy who accompanied Anders to the scene to investigate. Flippen had killed the deceased Deputy at the back of the house, walked around the house toward the front, exchanged gunfire with Sgt. Anders, and was fatally shot. Flippen received four gunshot wounds total (left hand, left upper arm, head, and chest).

The District Attorney reportedly declined to discuss the case, saying that the indictment speaks for itself. The defense attorney reportedly stated that his client, Sgt. Anders, shot Flippen in self defense or in the defense of others.

Sgt. Anders reportedly appeared and testified before the grand jury. Presumably, the grand jury found reasonable grounds to believe that Sgt. Anders unlawfully killed Mr. Flippen; that is, that the killing was not legally justified (self defense or defense of others). That does not mean that the grand jury thought that Sgt. Anders should be convicted of unlawfuly killing Mr. Flippen, only that there is sufficient evidence, which if presented to a petty (petit) jury and not contradicted, would warrant the petty jury in finding guilt beyond a reasonable doubt of an unlawful killing.

An unlawful killing, that is, a killing without legal justification or excuse, is
ordinarily second degree murder. To elevate the killing to first degree murder, there must be deliberation, a thinking over of the act with a calm and reflective state of mind. Second degree murder requires premeditation, that is a thinking of the act before the commission of the act. Some Courts (not New Mexico) say that premeditation is the state of mind which New Mexico calls deliberation. Here it is not necessary to ponder whether there was deliberation in this killing; there obviously was not, Sgt. Anders did not act after thinking the matter over with a calm and reflective state of mind. It is a closer issue, whether he should have been indicted for second degree murder.

The grand jury has charged Sgt. Anders with an intentional killing (or intentional infliction of great bodily harm, from which Flippen died). The grand jury also found that Sgt. Anders probably acted in the "heat of passion." It is quite understandable, on these alleged facts, how the grand jury would think that the shot that killed Flippen was inflicted while Sgt. Anders was "in the heat of passion." However, "heat of passion" in this context is a term of art, with a special meaning in the law.

The statute states that manslaughter is an unlawful killing upon a sudden quarrel or in the heat of passion. The trial (petty) jury is not instructed on that statute, but upon the case law interpreting the statute. The case law is distilled into jury instructions approved in advance by the Supreme Court of New Mexico, which the trial Judge reads to the jury. Grand juries consider the law as set forth by our Supreme Court, and determine whether there is sufficient evidence to indict, and force the accused to stand trial before a trial jury.

The grand jury was governed by this rule, set forth in Uniform Jury Instructions, Criminal, 14-220: The difference between second degree murder and voluntary manslaughter is sufficient provocation. In second degree murder the defendant kills without having been sufficiently provoked, that is, without sufficient provocation. In the case of voluntary manslaughter the defendant kills after having been sufficiently provoked, that is, as a result of sufficient provocation. Sufficient provocation reduces second degree murder to voluntary manslaughter.

The grand jury is further governed by this rule, set forth as 14-222:
"Sufficient provocation" can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition. The "provocation" is not sufficient if an ordinary person would have cooled off before acting.

For an unlawful killing to be reduced from murder in the second degree to voluntary manslaughter, the killer must have acted while his reason was dethroned (subjective test, what was he thinking and feeling) and the reason of an ordinary reasonable person would have been dethroned (objective test, what would an ordinary person be thinking and feeling and do). Moreover, the law says that there are some circumstances, which would seem to meet the two tests set forth here, which are never "sufficient provocation;" and hence are never "in the heat of passion." The classic example is words alone. Call a man the worst thing, and even if his reason is dethroned and he acts in passion, the law says that is not "sufficient provocation;" is not "in the heat of passion" as the grand jury used the term.

Now, to the bottom line. There was a report on December 18, 2004, the date of the shooting out of which these charges arose, that Mr. Flippen was handcuffed when fatally shot, or that he may have been handcuffed when fatally shot; and that a video of the incident existed which might tell the tale. Some TV stations tried to get that video and were unsuccessful; but it was reportedly used at the grand jury hearing (secret, so we will not know). In the story of the indictment Thursday, the paper quotes the defense counsel as saying he hopes we [the public] get to see the video. If Flippen was killed while Flippen was handcuffed, that is important; not conclusive of anything, but important.

The District Attorney said that he would not discuss the details, but would let the indictment speak for itself. That indictment does not tell us much. The Defense attorney says he hopes we get to see the video. We, the general public, want to know what our public officials are doing; and we want to know whether the grand jury has gone haywire (runaway) in indicting a 33 year veteran Deputy Sheriff Sergeant. One question is why this matter was being handled by a grand jury (rather than a magistrate, with preliminary hearing open to the public). Certainly less publicity. We are not claiming that an injustice is being done, but we are claiming that the general public should be shown the video tape; and that that could be handled without unfairly tainting the petty jury pool.

Another thing is very important here. If Sgt. Anders is convicted and appeals, and if the appellate Court determines that he is not guilty of manslaughter, but is guilty of murder (that if he had been charged with murder, and convicted of murder, the conviction would stand), he goes free. For example, if the appellate Court says the evidence is that the deceased was handcuffed and he was killed for revenge, he is not guilty of manslaughter (no "sufficient provocation" under the law) so he goes Scot free. See details in an earlier post on Murder and Manslaughter, in February Archives.

Monday, March 28, 2005


Dear County Commissioners of Sandoval County. We submit a few suggestions regarding the PROFESSIONAL SERVICES AGREEMENT between the County of Sandoval and bond counsel. These come from a resident of the far Southeast corner of the County. The contract was entered into in February, 2003, to cover a four-year period. As we understand it, the contract can be amended by agreement of the parties, or can be terminated by either party on 60 days written notice.

Our remarks are regarding the compensation of bond counsel, the lawyers who are engaged by contract (after a request for proposals, or bid) to provide services to the County in connection with the drafting of ordinances authorizing bond issues, and the issuance of the bonds. Your contract has a compensation clause for the payment of the bond counsel, which clause reads as follows:

Exhibit A
Fee Schedule

A. General Obligation Bonds $1.00 per $1,000 face amount
of bonds with a minimum fee of $10,000 per issue;
B. Revenue Bonds $1.25 per $1,000 . . . minimum . . . $10,000 . . .
C. County Improvement Districts $6.00 per $1,000 . . . $10,000 . . .
D. Lease-Purchase Financing $1.25 per $1,000 . . . $10,000 . . . and
D.[sic] Conduit Financings, $3.00 per $1,000 face amount of bonds up
to $15,000,000 of bonds with a minimum fee of $25,000, plus
$1.00 per $1,000 face amount of bonds over $15,000,000 up to
$50,000,000, thereafter, $.40 per $1,000 face amount. All fees and
expenses to be paid by the developer.

Out-of-pocket expenses, including photocopies, long-distance telephone calls, courier services, mailings, travel expenses (with prior approval), gross receipts taxes, and other similar expenses will be paid by the County in addition to the amount billed for fees.

An hourly rate of $150 will be billed by the Firm for any additional legal
services provided not specified within this Agreement.

The Intel bonds of 2004 were not general obligation bonds. The question is whether they were "revenue bonds," or "Conduit Financings." If they were revenue bonds, the fee would be $20,000,000; if they were conduit financing, the fee would be $6,448,000. The actual fee was negotiated down to $400,000. Intel paid the lawyers' fees directly.

In this deal, Intel agreed to pay over $80 million to the County (presumably to make up for Intel's savings in ad valorem taxes, which savings will be approximately $150 million each year for 30 years). Question: who actually paid the $400,000 lawyer fees? It could be argued that the taxpayers of Sandoval County paid the fees. Presumably Intel is interested in the money, and would not care whether it paid the $400,000 to the City of Rio Rancho, to Sandoval County, or to bond counsel employed by the County (not to be confused with the regular, hard working County Attorney).

So the case can be made that we taxpayers of Sandoval County have authorized our County Commissioners, including Chairman Jack C. Thomas, to agree with bond counsel (after a request for proposals) that counsel will be paid on the basis of a percentage of the bonds issued and sold. Why do we do that? Why do we enter into such a contract?

Suggestion. Next time the matter comes around (February, 2007), let us change the contract. We could also do it now, without breaching our present agreement, by consent of bond counsel and the Commission, or by giving 60 days notice. Let us consider a new contract, one in which we pay bond counsel by the hour for the services. The hourly rate could be increased as the amount involved increases, but there is no reason to be contracting to pay out such large amounts, on a percentage basis.

The work is complex, yes. Malpractice could be disastrous, yes. If need be, the County could provide the malpractice insurance, so that would not be a factor relied upon to justify astronomical fees. What if we said in no event shall a fee be paid by the County, nor by the developer, in excess of $600 per hour? Would that be enough to obtain proposals from competent bond counsel? If so, all excess is a waste (giveaway) of the taxpayer's money. If you cannot get lawyers to bid for the work at $600 per hour or less, we will be shocked and publish the result.

We will not know at what price bond counsel will do the work, unless we put out a request for proposals that states that we want an hourly rate fixed for each lawyer involved. Similar to the contract for risk management counsel for the State.