State insurance regulator’s attorneys to prosecute Chan in third murder trial

Jan. 05--In an unusual move, the district attorney in Las Cruces has arranged to have two attorneys who work for the state superintendent of insurance take over prosecution of the murder case against Tai Chan, the former Santa Fe County sheriff's deputy who shot a colleague after a night of off-duty drinking and arguing during a road trip.

After his office twice failed to convince juries that Chan is guilty of murder, District Attorney Mark D'Antonio appointed as special prosecutors Devin Chapman and Troy Davis, who work in the fraud division of the agency that regulates the insurance industry in New Mexico.

Chan says he acted in self-defense when he shot fellow Deputy Jeremy Martin at a Las Cruces hotel in 2014, and two trials have ended with juries unable to reach a verdict.

Chan is free on a $60,000 property bond while awaiting a third trial, which initially was scheduled for April but has been postponed because of scheduling conflicts.

D'Antonio in late December issued a statement saying his office had consulted Martin's widow, Sarah Martin, and his brother, James Martin, "and they are fully supportive of the decision to bring [Office of the Superintendent of Insurance] prosecutors Troy Davis and Devin Chapman in on the case."

"We believe fresh eyes and a rigorous prosecutorial perspective, implemented by a team of seasoned prosecutors such as Mr. Davis and Mr. Chapman, will effectively present this case to a jury," the district attorney said.

D'Antonio did not return a message seeking comment Thursday. His spokesman, Damien Willis, said the two special prosecutors were experienced homicide prosecutors before they began working at the Office of the Superintendent of Insurance.

Davis, a former assistant district attorney in Albuquerque, is known for his work on the successful prosecution of Michael Astorga for the 2006 murder of Bernalillo County Sheriff's Deputy James McGrane.

Heather Widler, spokeswoman for the Office of Superintendent of Insurance, said Thursday that this is the first time the agency's legal staff has been asked to prosecute a criminal trial.

But Widler said the office frequently collaborates with district attorneys across the state on matters such as insurance fraud because "right now, there is a shortage of prosecutors."

State lawmakers and the governor created the Office of the Superintendent of Insurance as its own state agency in 2013. Previously, it had been under the purview of the state Public Regulation Commission.

State Sen. John Arthur Smith, D-Deming, who chairs the Senate Finance Committee, said Thursday he has kept up with coverage of the Chan case and found it "extremely strange" that attorneys for the state insurance regulator would be prosecuting a murder case for a district attorney.

"My off-the-cuff remarks are that it sounds strange," Smith said of the arrangement. "I don't think that when we set up the office of insurance that was ever envisioned as their area of expertise."

The agreement between the insurance regulator and the Las Cruces district attorney's office cites as legal authority a state law concerning the appointment of special prosecutors in "conflict cases."

"Each district attorney may, when he cannot prosecute a case for ethical reasons or other good cause, appoint a practicing member of the bar of this state to act as special assistant district attorney," the law states. "Any person so appointed shall have authority to act only in the specific case or matter for which the appointment was made."

The 3rd Judicial District attorney "will be responsible for all reasonable finances in the case" and will pay for "all trial expenses including expert witness' fees," says the agreement. The superintendent of insurance will bill the district attorney for hotel, per diem, meal and fuel reimbursement as well as for salary and overtime in the case.

Both the district attorney and Office of the Superintendent of Insurance are primarily funded with state taxpayer dollars.

Not counting staff time for prosecutors and other law enforcement officials involved with the earlier trials, Willis said the district attorney's office spent $16,636 in costs such as witness fees for the first trial of Chan and $22,094 in the second trial.

But John Day, Chan's attorney, said Thursday the district attorney's office was "low-balling" the trial expenses.

Asked to comment on the use of attorneys who work for the state insurance regulator for Chan's third murder trial, Day on Thursday said "none of this changes the fact that two juries have heard the case" without convicting his client.

In October 2014, after the deputies had transported an inmate to Arizona, they stopped for the night in Las Cruces, where witnesses say the two men, over drinks at a bar, began arguing about a Santa Fe homicide case. The argument continued when the deputies returned to the hotel room they were sharing. According to testimony, after Chan wrested a gun away from Martin, he shot his fellow deputy five times in the back as Martin fled from their hotel room. Chan has maintained that Martin had been the aggressor and that he fired the shots out of fear for his life.

The hiring of the special prosecutors is the latest twist in a case that has involved some controversy. Before the start of the second trial, a Las Cruces police detective assigned to the investigation filed a lawsuit against the city police department, claiming her bosses had hindered the probe. And during that trial, one of the prosecutors in the case resigned from the district attorney's office.

Justin Horwath can be reached at 505-986-3017 or [email protected].

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