Local District Attorneys should not be removed from the review and oversight process of police criminal misconduct and unjustified police officer-involved shooting cases.
I am a former Bernalillo County Chief Deputy District Attorney, Assistant Attorney General and Assistant District Attorney, with 15 years experience as a felony prosecutor who actually prosecuted three police officers early in my career.
One case I prosecuted involved APD officers who changed out of their uniforms while on duty and committed armed robberies and then took the call after it was called in to them.
Bernalillo County District Attorney-Elect Raul Torrez has requested seven District Attorneys from around the state to review the Keith Sandy case and recommend whether to seek another trial of the former police officer for the killing of homeless camper James Boyd.
Torrez must be given the benefit of the doubt in trying to do the right thing and deciding if Sandy should be tried again for murder when he asks for an independent review of the case by other District Attorneys.
I give Mr. Torrez the benefit of the doubt just as long as he makes the final decision after he is sworn in as Bernalillo County District Attorney.
THE PEREZ/SANDY PROSECUTION
Bernalillo County District Attorney Kari Brandenburg and her office were removed from the prosecution of Perez and Sandy and a special prosecutor was then appointed.
At the time of her removal from the prosecution of the case, APD was investigating Brandenburg for alleged witness tampering in a criminal case involving her son.
Brandenburg accused APD of retaliating against her for bringing charges against the officers.
Albuquerque’s Chief Administration Officer wrote Brandenburg alleging that she and members of her office had engaged in unethical conduct in reviewing the Perez/Sandy case for prosecution in an obvious attempt to have her office removed from prosecuting the case and to aide the defense.
The New Mexico Attorney General reviewed the APD criminal investigation of Brandenburg, found no criminal conduct by her and issued an opinion that APD’s investigation of the Brandenburg was politically motivated.
The attorney general also issued an opinion that there was “an appearance of impropriety” by Brandenburg when witnesses in her son’s case contacted her about making restitution for her son.
Brandenburg and her office were removed from the Perez/Sandy prosecution because of allegations of conflict of interest made by the defense against her and related publicity.
Ultimately, the first trial of Perez/Sandy ended with a hung jury voting 6 to 3 to find not guilty with the charges against Perez later dismissed by the special prosecutor.
PROPOSED CHANGES TO REVIEW PROCESS
District Attorney-Elect Torrez says he is a proponent of an independent prosecutorial review for officer involved shootings.
Torrez claims “Having prosecutors investigate and potentially charge police officers from agencies with whom they work on a regular basis can do substantial harm to institutional relationships that are necessary for public safety”. (For the full story see “Outside prosecutors to review Boyd case”, page A-1 and A-2, December 12, 2016, Albuquerque Journal.)
Preserving a “working relationship” should never be used as an excuse to avoid getting to the truth of alleged police misconduct and crimes.
Legislation has been prepared for the 2017 New Mexico legislature to create and fund a specialized unit in the New Mexico Attorney General’s Office to handle the review of all officer-involved shootings throughout the state and take the responsibility away from local district attorneys to prosecute police officers for unjustified shootings.
ROLL OF THE ATTORNEY GENERAL
An argument that is made by proponents for the New Mexico Attorney General to take over the review and prosecution of officer-involved shootings is that local district attorneys cannot fairly and impartially review officer involved shootings of local police they work with and that there is an inherent conflict of interest. This is a bogus argument.
The New Mexico Attorney General is the chief law enforcement official in the State of New Mexico, is required to have a working relationship with virtually all law enforcement agencies in the State of New Mexico, and works repeatedly with local law enforcement agencies on cases.
The Attorney General is also the chair of the law enforcement certification board and handles all criminal appeals to the New Mexico Court of Appeals and Supreme Court for the District Attorneys.
Creating a specialized unit in the Attorney General’s Office to handle officer involved shootings is not the answer. It amounts to nothing more than political “passing the buck”.
Arguing that special prosecutors outside the local District Attorney’s Office should be appointed to review and make decisions to charge to avoid conflicts of interest because the office works closely with local law enforcement agencies is tantamount to an elected official refusing to do a job they were elected to do by voters.
The grand jury system of charging is a necessary function of any criminal felony prosecution guaranteed by our constitution and it is the duty and responsibility of the elected District Attorney to present cases to a grand jury for any police misconduct that is criminal.
It is a grand jury that decides what charges, if any, are made after the District Attorney presents sufficient evidence of probable cause.
DA’S CRITICAL ROLE OF POLICE OVERSIGHT
All elected District Attorneys must be 100% committed to civilian oversight of police, and recognize that police are not above the law and must be held to a higher standard in order to protect our constitutional rights.
The public should not tolerate even a hint of police intimidation against any prosecuting agency or any court when police perceive they are not getting their way or what they want.
Under no circumstances should the public tolerate law enforcement actions and investigations by police that are politically motivated.
In Bernalillo County, the District Attorney is part of the multi-jurisdiction task force that investigates officer-involved shootings.
An issue that hovers over the Albuquerque Police Department like a black cloud and that demands civilian oversight is the Department of Justice (DOJ) consent decree and implementation of agreed reforms.
The consent decree mandates that APD participate in the “multi-jurisdiction” task force that investigates the shootings.
My hope is that the Bernalillo County District Attorney is 100% committed to the DOJ reforms to civilian oversight of APD.
The district attorney is frequently called out to the scene of homicide cases.
A District Attorney must be prepared to resist all outside political influences when it comes to investigating police officers for misconduct and violation of constitutional rights.
A District Attorney must be willing to stand up to those who may try to interfere with the police oversight function without fear of offending a police agency or fear of retaliation from a police agency.
The Bernalillo County District Attorney served a valuable oversight function of APD when it reviews and approves search warrants. They notify APD when case investigations need more work or cases are mishandled.
It is the District Attorney’s office that has the ultimate authority to screen virtually all cases submitted for felony prosecution by APD and decide which cases are to be prosecuted.
PROCESS TO HANDLE CONFLICT-OF-INTEREST CASES
The appointment of a special prosecutor outside of a prosecuting agency is difficult and costly.
The Administrative Office of the District Attorneys has in place a definitive process to handle conflict-of-interest cases.
First, a District Attorney must determine if a conflict exists.
An example of a conflict is an employee of the office or an employee’s relative being charged with a crime.
Second, the District Attorney must contact other district attorneys in the state to determine if any one will take the case.
Third, if no other District Attorney in the state is willing to take the conflict case, then the Attorney General is asked to take the case.
Fourth, if the attorney general declines to take the conflict case, the district attorney is required to appoint a special prosecutor that must be paid for out of the existing District Attorney’s budget or with a special appropriation.
The overwhelming majority of District Attorney Offices in the state decline appointment as special prosecutor in officer involved shooting cases in other jurisdictions because they simply do not have the resources to prosecute and they are dealing with their own caseloads.
Retaining a private attorney to act as special prosecutor is also prohibitive because most private attorneys will not take high profile cases. And when they do they usually charge thousands of dollars that require special allocations from the state legislature.
During the past few years, the New Mexico Legislature has cut the budgets of the Attorney General, the District’s Attorney office, the Public Defender’s Office and the Courts.
Because of the severe financial crisis the state is in, it is doubtful the legislature will go along with funding of a special unit in the Attorney General’s Office.
The ultimate goal and solution should be to reduce unjustified officer-involved shootings negating the need for a specialized prosecution unit.
Another goal that the Bernalillo County District Attorney should assist with is the complete compliance by APD with the Department of Justice mandated reforms resulting in the dismissal of the consent decree.