4 Investigates: Family says Gallup DA won’t prosecute

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Dan and Katie McCormick are at wit’s end with Gallup District Attorney Bernadine Martin.

“If you’re not prosecuting cases where people are dying, what are you doing?” asked Dan from his Tucson, Arizona living room.

On October 23, 2020, his mother, Kim Cloud, and stepdad Mike Rathbun were killed in a crash on I-40, about a dozen miles west of Gallup.

A semi-truck driven by Californian Paramveer Singh blew into a well-marked construction zone going more than 60 miles per hour according to New Mexico State Police investigators. Everyone else was traveling closer to 5 mph.

Kim and Mike died at the scene, where initial responders were baffled at the damage; they thought their full-size SUV might have been a compact car.

In the almost three years since the crash, not a single charge has been filed by the district attorney.

After reading about the case of Raven Livingston, killed by a Gallup driver around New Year’s of 2018, the McCormicks told 4 Investigates they had a tragically similar story.

The DA took Livingston’s death to court in early 2022, charging driver Timothy Martine, Jr. with vehicular homicide. But several Gallup Police Department officers didn’t show up, and the judge pointed out several weaknesses in the prosecutors’ case. When he told the deputy district attorney he felt he had no choice but to dismiss the case, she promised an appeal or a refiling of the charges. That never happened.

The McCormicks sympathize with the Livingston family.

“You don’t know how much of a hole you’re walking over until you, you know, till you fall into it,” Dan said.

“It’s unreal,” added Katie.

While vehicular homicide is not an easy charge to make stick in New Mexico, it’s not impossible. Often, it’s attached to a driver who is under the influence. If it’s not – as in the deaths of Kim Cloud and Mike Rathbun – prosecutors must prove a willful choice to be distracted.

In the months and years after Kim and Mike’s deaths, Katie McCormick thought DA Bernadine Martin believed it could be proven.

“The jury should know your family,” Martin wrote after Katie sent pictures of Kim and Mike in an email she hoped would spur action. But within weeks, Martin stopped communicating with the McCormicks.

McKinley County Sheriff James Maiorano said his deputies share in the frustration.

“There’s been no one held accountable for this action. We either file the charges and we win the case or we file the charges and we lose the case. But either way, I think the family deserves that day in the courtroom,” Maiorano told 4 Investigates.

Public records show for a time, the district attorney worked the case. Emails indicate she tried to get evidence from Singh’s cellphone and the onboard computer from the semi he drove.

But like with the McCormicks, eventually that conversation stalled.

When the New Mexico Attorney General’s Office offered to help in February 2023, it took Martin less than 15 minutes to refuse the offer; saying her office was overworked but planned to file charges. None came.

Then, within days of a 4 Investigates visit to Tucson to speak with the McCormicks, Martin made an appeal for the AG’s assistance that made it sound as though she wasn’t aware of the previous offer for help.

Martin steadfastly refused to interview with 4 Investigates for either the Livingston or McCormick stories. When a reporter confronted her outside her office about the inaction, she claimed to be avoiding pretrial publicity.

When asked what trial she was referring to since no charges had been filed in either case, she claimed the two instances were under investigation. Since she’d already filed charges in Raven Livingston’s death and since she’d had the sheriff’s report on Kim and Mike’s deaths for years, 4 Investigates asked if she might still be investigating. She refused to answer.