“Running the Clock Out” On DOJ Reforms and the Consent Decree


Two years ago, soon after Federal Court Monitor James Ginger was appointed, I met with him in the United States Attorney’s Office and tried to convince him that APD Chief Gordon Eden and his command staff were not committed to the Department of Justice (DOJ) agreed to and mandated reforms.

During our meeting, I told the Federal Monitor that Chief Eden and his command staff were “running the clock out” on the DOJ reforms until the end of Mayor Berry’s term.

I recommended to the Federal Monitor that it was time for the appointment of a civilian police commissioner to take charge of the reform effort or that the Federal Court should appoint a “special master” to take over APD to implement the mandated and agreed to DOJ reforms.

Federal Monitor James Ginger told me that the APD command staff were being “friendly and cooperative” and he was optimistic that APD would implement the reforms.

Two years ago, I recall vividly telling Albuquerque City Councilors Pat Davis, Isaac Benton, Ken Sanchez and Diane Gibson that APD was “running the clock out” on the DOJ reforms until the end of Mayor Berry’s term, but they did not believe me.

I told City Counselors that time was of the essence and the Albuquerque City Council needed to take immediate action to remove the APD command staff, appoint a civilian Police Commissioner to implement the DOJ consent decree reforms and remove Internal Affairs from APD and civilianize APD oversight.

The city councilors I talked to told me there was nothing the Albuquerque City Council could do and that we needed to wait until a new Mayor was elected.

Albuquerque has now had at least two years of delay by the Albuquerque City Council and we can expect more delays.

On November 12, 2016, the Albuquerque Journal published an article reporting that city Community Policing Councils were frustrated with Chief Eden not attending their meetings, the Police Oversight Board complaining that Chief Eden ignored its findings and discipline recommendations, and the city attorney, instead of Chief Eden, was often the person who publicly explained the reform efforts.

APD Forward, an APD oversight group, also said Eden had not been present for many settlement-agreement meetings.
(See November 12, 2106 Albuquerque Journal article “Police reform groups say APD Chief not involved” at https://www.abqjournal.com/887736/groups-where-is-eden.html)

An APD statement issued to the Albuquerque Journal for the November 12, 2016 article described Chief Eden as having a “very good sense, very good understanding and a hand in” the reforms.

The truth has always been that Chief Eden and his command staff have never been committed to implementing the DOJ reforms as evidenced by their actions and I said so in my November 12, 2016 blog article entitled “Eden Knows Exactly What He Is Doing And Should Be Fired For It”.

The Berry Administration, Chief Eden and his command staff are lying when they say they are committed to the DOJ mandated reforms and proof of the lie is contained in the second, third and the fourth progress reports submitted by Federal Monitor James Ginger to the Federal Court.

In his second report to the federal court, Federal Monitor James Ginger accused the City Attorney of what he called, “delay, do little and deflect” tactics saying his relationship with her was “a little rougher than most” compared with top attorneys in other cities and where he has overseen police reform.

The July 1, 2016 federal monitor’s third report states “Across the board … the components in APD’s system for overseeing and holding officers accountable for the use of force, for the most part, has failed … the serious deficiencies revealed point to a deeply-rooted systemic problem. … The deficiencies, in part, indicate a culture [of] low accountability is at work within APD, particularly in chain-of-command reviews. …”

The November 1, 2016 fourth federal monitor’s report states that when “excessive use of force” incidents are investigated by the APD Critical Incident Team, it“ [deploys] carefully worded excuses, apparently designed not to find fault with officer actions” and “[uses] language and terminology apparently designed to absolve officers and supervisors of their responsibility to follow certain CASA (Court Approved Settlement Agreement) related provisions.

During a city council briefing by Federal Monitor James Ginger on one of his reports, City Councilor Dan Lewis asked the Federal Monitor who is ultimately responsible for APD.

When the Monitor said the City Council was responsible for police oversight, the City Council Committee Lewis was chairing all had a good “uncomfortable” laugh and Lewis rephrased his question apparently not liking the truth he got from Dr. Ginger and wanting Ginger to say the Mayor.

Under City’s Police Oversight Board (POB) ordinance, Chief Eden is required to explain in writing why he disagrees with discipline the POB has recommended for police officers.

In fifty-four (54) cases in which Eden has disagreed with the POB, he has offered no explanation as to why he has any disagreement with the POB.

The Albuquerque Free Press now reports City Councilors are joining with Albuquerque’s civilian police oversight agencies and charging that APD Police Chief Gorden Eden is deliberately thwarting all attempts at civilian oversight.

The Albuquerque Free Press quotes City Councilor Isaac Benton saying “Their relationship sounds like he [Eden] is just stonewalling them. … The problem is the attitude of leadership at APD, and under this administration the attitude has not been helpful.” Really Councilor Benton and exactly how has your attitude and leadership been in reforming APD been helpful in any way?

The Albuquerque Free Press reports Councilor Pat Davis saying “APD is playing cute with the process” and that the department “is not following the spirit” of the city’s oversight law or the reform process. Really Councilor Davis, and who is being cute now after you were told what was going on before you got elected two years ago?

Councilor Ken Sanchez said he’s “concerned” about “why they [APD] are not responsive.” Really Councilor Sanchez, and why are you concerned now after seven years of APD spiraling out of control while you watched?

Councilor Brad Winter, who helped write the POB oversight ordinance, said, “the whole City Council is concerned.” Really Councilor Winter and why any concern now?

And City Councilor Dan Lewis, who is now running for mayor, and who prides himself saying he voted to bring in the Department of Justice to investigate APD, does not even return ABQ Free Press phone calls for comment yet Lewis claims he will replace Eden even though Lewis has never complained publicly about Eden’s job performance nor demanded Eden’s resignation.

For the last seven (7) years, the Albuquerque City Council has been an absolute failure in exercising their oversight authority over APD.

Chief Eden and the entire chain of command of APD need to be removed and replaced with a new generation of leadership committed to the reform process before any real progress will be made with the DOJ agreed to and mandated reforms.

What is just important is that we need an entire City Council and a Mayor that are as equally committed and determined to implement the DOJ mandated reforms and not just give it lip service.

“No Bond” Rule Not Meant To Circumvent Our Constitutional Rights

District Attorney Raul Torrez is requesting the New Mexico Supreme court to clarify the recently enacted “no bond” rule enacted by voters. (See March 30, 2017 Albuquerque Journal, page A-1 “DA asks high court to clarify no-bond rules; Efforts to hold dangerous defendants often blocked”.)

District Attorney Raul Torrez is also asking the New Mexico Supreme Court to direct 2nd Judicial District Stan Whitaker, a former Assistant US Attorney and prosecutor, to reconsider his recent order that denied his office’s attempt to keep two suspects in jail without bond until trial, one suspect charged with armed robbery and another charge with shooting his ex-girlfriend.

Torrez claims he is frustrated that district judges are blocking his efforts to keep dangerous criminals in jail until their trials.

What Torrez is saying in other words is that he is frustrated that judges are enforcing our constitutional rights of “presumption of innocence” and “due process of law”.

Attacking our Judicial system and judge’s rulings is a familiar tactic of President Donald Trump and others who want to ignore our laws.

All judge’s take an oath of office to preserve, defend and protect our constitution.

Judges are strictly prohibited by the Supreme Court Rules and the Code of Judicial Conduct from commenting on pending cases and voicing opinions that call into question their fairness and impartiality, especially in criminal cases.

Judges are prohibited by the Code of Judicial conduct from defending their decisions and sentencing in a public forum outside of their courtroom so criticizing judges is like “shooting fish” in a barrel.

What happened at the bond hearing is clearly the District Attorney’s problem.

The District Attorney’s office could have, and should have, offered more evidence to support the “no bond hold” relating to the two defendants identified in the news article.

The “no bond” amendment approved by voters is very clear when it says “bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”

This could have been easily done by the District Attorney’s office seeing as one defendant was charged with armed robbery and robbing up to 50 businesses and the other was charged with shooting his ex-girlfriend.

Judges cannot make rulings based upon emotions and public outcry’s.

Judges need to have evidence to “hang their hats” on to have their rulings sustained and upheld on appeal.

At the bond hearing, the District Attorney’s office did not offer any clear and convincing evidence that no release conditions existed to protect the public and only offered the criminal complaint filed with the court.

A criminal complaint is not a conviction, is not clear and convincing evidence, but merely an accusation of probable cause that must be proven in court to get a conviction.

Testimony from the investigating officer as to the violent nature of the allege crimes committed and perhaps testimony from the victims and injury inflicted could have been easily offered to the court.

Probation officers for those charged and who are familiar with the charged defendants could have also been called to testify.

The new “no bond rule” designed to make it easier for prosecutors to keep dangerous criminal defendants in jail until their trial was never meant to be a circumvention of our constitutional rights.

“Presumption of innocence” and “due process of law” are two of our most critical rights guaranteed under our constitution and offer protections against overzealous prosecutors and overzealous law enforcement officials.

The right to a reasonable bond pending a trial to guarantee appearance at trial and prevent a person from fleeing is also a critical right.

No judge can set bail amounts that are so unreasonably high to prevent a defendant from posting bail solely because of their financial inability to post the bond.

The new “no-bond” rules requires prosecutors to present supporting evidence that shows there are no reasonable release conditions that will protect the public.

It is not surprising, and indeed appropriate, for Torrez to petition the New Mexico Supreme Court for guidelines on how to interpret the “no bond” hold rule.

However, I predict that the New Mexico Supreme Court will find that Judge Whitaker did not abuse his discretion and will affirm his ruling denying that the suspects be kept in custody with no bond.

I suspect that the New Mexico Supreme Court will rule that the “no bond” rule is very clear and unambiguous and that District Attorney Torrez and his office and all other District Attorneys in the state need to step up their game, do their jobs, and present clear and convincing evidence to the courts to allow the courts to find a charge defendant is a danger to the public and to issue a “no bond” hold until trial.

A System Designed For Failure


It is really a damn shame that so many candidates for Mayor have abandoned or decided against seeking public financing as this New Mexico Political Report article points out.

Originally, there were a total of 14 candidates running for Mayor, with 10 declaring their intent to seek public financing and 4 declaring to seek private financing.

That has changed with the majority of the candidates either abandoning their efforts to seek public financing or declaring their intent to seek private financing.

The City’s public financing is designed for failure.

Candidates for Mayor are given only 6 weeks to collect 3,800, qualifying $5.00 donations from Albuquerque residents and registered voters to secure public financing, which is a daunting and a very difficult task.

More than double the amount of time is given the candidates to secure the 3,000 qualifying signatures.

The $5 donations are donations made to the city and not to the candidate.

The $5 dollar donations are required to come from registered city voters, otherwise the donations do not count.

If the campaign fails to collect the minimum number of qualifying donations, all of what is collected is kept by the City.

The City Clerk’s office does not permit electronic transactions by donors, such as debit and credit cards, even though it was allowed by ordinance.

The City Clerk requires the campaigns to collect cash and use paper receipt books and it is labor intensive.

As candidates for Mayor have found out the hard way, unless you have a small army of volunteers, it not likely you can secure the required number of $5 donations.

The math is simple. You need to collect a minimum of between 80 and 100 $5.00 donations a day to get the 3,800 qualifying donations.

Voters normally have no problem signing nominating petitions but are reluctant to donate $5.00 to the city.

Current public finance laws provide that a qualifying candidate gets only one lump sum for the entire election, now at approximately $380,000.

Nothing in public finance is given for a run off placing public finance candidates at a disadvantage to privately financed candidates and incumbents.

Under Albuquerque’s existing public finance ordinance, once a candidate agrees to accept public financing, a candidate is prohibited from collecting any other donations and must agree to a spending limit.

What is discouraging is that the Albuquerque City Council had the opportunity last year to adopt dramatic changes to the city’s public campaign finance laws based on a task force review.

The City Council could have made the process easier to qualify for public financing but the only thing the City Council agreed to do is increase the funding from $360,000 to $640,000.

The increase in public finance funding will be on the October 3 municipal ballot and if passed will apply to future elections.

I remember talking to my City Councillor Diane Gibson about proposed changes to the public finance laws and making it easier to qualify and her comment was “It’s suppose to be hard to keep out candidates who are not serious candidates” as if she has any business deciding who should be considered a serious candidate.

$35,000 Worth Of Deflection Will Not Stop FBI Investigation

The City of Albuquerque released the “report of findings” by Chicago based firm Elijah on the allegations made by a former APD records custodian Reynaldo Chavez who said in an affidavit that APD destroyed, edited or altered videos of police shootings. (See http://www.kob.com/albuquerque-news/abq-releases-report-on-alleged-lapel-camera-tampering/4434665/?cat=500)

The investigation report found that the original versions of the videos made by APD still exist and the report concluded that the allegations contained in the affidavit of the former records custodian Reynaldo Chavez was “inadvertently or deliberately misleading”. (See March 24, 2017 Albuquerque Journal report “Outside firm backs APD on video claim; Original recording still exist, independent review concludes”)

The good news is that that original videos were uploaded and are completely intact and unaltered and still exist.

The original videos can now can be compared with copies given to litigants, the courts and investigating authorities.

The bad news is that the City of Albuquerque paid $35,000 for the so called “independent review” when it was not necessary.

The Department of Justice and the Federal Bureau of investigation are conducting their own investigation of the matter and will no doubt will also find the original videos.

In characteristic style, the Berry Administration calls forth City Attorney Jessica Hernandez and Chief of Staff Gilbert Mantano to declare the report definitive proof of no wrongdoing by APD.

Gilbert Mantano goes as far as saying Reynaldo Chavez perhaps perjured himself when Mantano says “Mr. Reynaldo Chavez [made his affidavit allegations] under oath and is subject to perjury.”

My recommendation to Chief of Staff Gilbert Mantano is to stop trying to sound intelligent when it comes to the law and start working on your resume because you will be out of a job come December 1, 2017.

In his affidavit, Reynaldo Chavez states video recordings of two police shooting cases appear to have been altered.

APD has also acknowledged that they have edited some videos that they have released to the public.

Watching the City Attorney dance around long established court “rules of evidence” is amazing and as a licensed New Mexico attorney she knows better.

The issue has never been about altering the originals on file, but altering copies given to the public, to litigants and the courts to be relied upon in court as being accurate. (See http://www.kob.com/albuquerque-news/abq-releases-report-on-alleged-lapel-camera-tampering/4434665/?cat=500)

What is also being investigated by the feds is if there was intentional withholding of evidence from litigants, the courts and the federal authorities required under the law and if so was there obstruction of justice or some other crime committed.

Both City Attorney Jessica Hernandez and Chief of Staff Gilbert Mantano seem to have forgotten or ignored that Reynaldo Chavez is not the only one who has made allegations that APD has altered or tampered with videos.

On December 8, 2016, New Mexico In Depth reported and it was confirmed that there is a federal criminal investigation going on. (See http://nmindepth.com/2016/12/08/feds-confirm-investigation-of-apd-body-cam-allegations/)

The New Mexico In Depth story called it “a rare public confirmation of a federal criminal investigation”.

Some of the most damning portions of this report are:

“[R]records obtained and reviewed … suggest that officers have broad powers to change and delete video — and have done so. In a sworn, videotaped deposition, APD Detective Frank Pezzano testified in October that he altered video from officers’ body cameras and other sources such as surveillance cameras, including in the Hawkes shooting case.
Pezzano also revealed that he and others have used several software programs apart from the department’s cloud-based video storage system to manipulate video.
Also, documents obtained by New Mexico In Depth from a source show that dozens of APD employees, including Pezzano, handled videos inside the cloud from the April 2014 morning when then-officer Jeremy Dear shot Hawkes. The employees watched the videos, made copies of them and, in some cases, edited portions of the footage.” (Reporter Jeff Proctor, New Mexico Political In Depth article “Feds Confirm Investigation of APD Body Cam Allegations.)

I suspect the federal investigation will go all the way to include investigating the allegations that top APD command staff and the City Attorney’s Office ordered the altering, tampering or withholding of video camera evidence in civil cases.

Overtime Audit Confirms APD Mismanagement and Officer Shortage

A city internal audit reveals that the Albuquerque Police Department spent over $3.9 million over its “overtime” budget. (SEE http://krqe.com/2017/03/21/internal-audit-reveals-apd-spent-3-9m-over-budget-for-ot-last-year/)

The audit says in fiscal year 2016, APD paid over time to APD employees in a total amount of $13 million when the actual budget was for $9 million.

This audit report should not come as a surprise to anyone.

Neither should the political spin by our $200,000 a year Chief Administrative Officer (CAO) and political operative Rob Perry.

CAO Rob Perry blames the excessive overtime on the Department of Justice reforms which is laughable and is truly an “alternative fact”.

According to CAO Rob Perry “The vast majority of the over time is related to a lot of the DOJ requirement training, use of force policies and changes there, too, on CIT, crisis intervention training”.

The problem with Perry’s spin, that is not what the internal audit report found.

The truth is, APD management has pretty much ignored the dictates of CAO Rob Perry to get a handle on the overtime problem and it reflects just how little respect they have for him.

The city internal audit focuses primarily on protocol issues within APD on how over time is garnered, not how much was spent, and the protocol would have to have been approved and ordered by CAO Rob Perry.

The audit says that too often, officers didn’t follow the rules when it came to getting overtime pre-approved or didn’t properly submit overtime for “grant funded” traffic over time, which has nothing to do with the DOJ consent decree mandates and training.

According to the audit, there are potentially 38,000 cases of unapproved overtime that occurred during fiscal year 2016 based on a sampling of time cards.

Nowhere does the audit blame the implementation of the DOJ mandated reforms as the cause of the overtime as argued by CAO Rob Perry.

During the last 7 years, the Albuquerque Police Department has consistently gone over its overtime budget by millions to the detriment of other city departments and other city employees.

A total of 124 of the 250 top wage earners at city hall are employed by the Albuquerque Police Department and include patrol officers, sergeants, lieutenants, commanders and deputy chiefs, assistant chief and the chief with annual pay ranging from $95,000 a year up to $166,699 a year. (See City of Albuquerque web site for full list of 250 top city wage earners).

The average and normal yearly salary paid APD Police Officers First Class is $56,000 a year.

Five (5) APD Patrol Officers First Class are listed in the top 250 city wage workers as being paid $146,971, $145,180, $140,243, $137,817 and $125,061 respectfully making them the 6th, the 7th, the 10th, the 12th and the 20th highest paid employees at city hall.

There are listed 66 Patrol Officers First Class in the list of the top 250 wage earners at city hall earning in excess of $95,000 a year and as much as $146,000 a year.

Combined, there are a total of 91 APD sworn police officers and sergeants who are named in the top 250 wage earners and city hall.

The fact that any APD Patrolman First Class are paid as much as between $95,000 to $146,000, or two to three times their normal salary, in any given year should be very concerning because it is a red flag for trouble, reflects excessive overtime and mismanagement of police resources or at the very least lack of personnel.

Consecutive shifts or excessive overtime for any police officer can lead to extreme fatigue, emotional burnout and reduce an officer’s alertness and response times and reflexes that can endanger lives and public safety.

Albuquerque needs 1,200 sworn police officers to effectively return to community based policing that will reduce overtime costs and reduce crime statistics.

A complete reorganization and change of management at APD is in order to get more police officers patrolling our streets.

An aggressive hiring and recruitment program needs to be initiated to increase the ranks of patrol officers.

Wayne Johnson Disqualified Himself From Being Next Mayor

Albuquerque had its first mayoral forum and it was an early kick off to the October 2, 2017 city election. (See March 22, 2107 Albuquerque Journal, page A-1, “Crime emerges as top issue among mayoral candidates.)

The candidates are still in the process of collecting the 3,000 qualifying signatures to get on the ballot, and we will not know for at least another month who will be on the ballot.

In my view County Commissioner Wayne Johnson disqualified himself from being elected Mayor of Albuquerque when he said “I think (the DOJ settlement) was a mistake”.

Johnson said that trying to run a law enforcement department with a 106 page consent decree, a court monitor and a federal judge watching makes it nearly impossible for the department to respond to public safety concerns.

Really Commissioner Johnson?

What was not a mistake is that the Department of Justice (DOJ) just a little over three years ago found a pattern of excessive use of force and deadly force by the Albuquerque Police Department (APD).

The DOJ also found a “culture of aggression” within APD and a clear pattern of civil rights violations, especially when dealing with the mentally ill.

The DOJ consent decree mandates reforms, policy changes and training, especially crisis intervention, involving the mentally ill, that must be completed by APD.

During the last seven years, there have been 41 police officer involved shootings resulting in 38 deaths and over $50 million dollars paid in police misconduct cases for use of force and excessive force.

Just last year, two police officers were charged and tried with murder of homeless camper James Boyd, and although the officers were not convicted, the city settled the lawsuit for $5 million taxpayer dollars for police misconduct.

Just last week, the City of Albuquerque agreed to pay $8.5 million to settle a lawsuit filed on behalf of 21 year old Ashley Browder who was killed in a 2013 crash caused by off-duty Police Sgt. Adam Casaus.

The July 1, 2016 third progress report of Albuquerque Police Department (APD) Federal Monitor James Ginger makes it clear just how poorly managed APD really is when the monitor reported “Across the board … the components in APD’s system for overseeing and holding officers accountable for the use of force, for the most part, has failed … the serious deficiencies revealed point to a deeply-rooted systemic problem. … The deficiencies, in part, indicate a culture [of] low accountability is at work within APD, particularly in chain-of-command reviews. … [F]ostering the constitutional use of force is the primary goal of this entire effort [of police reform]”.

The Federal Monitor’s report reflects that you get failed law enforcement management when you appoint a Chief of Police who has absolutely no prior experience managing a municipal police department and who is considered a “political operative”.

What has happened to APD is what happens when you keep or return people who created participated or did not stop the culture of aggression and the “deeply-rooted systemic problems” found by the Department of Justice.

Notwithstanding what has happened the last seven years with APD, what you get from Wayne Johnson is “I think we all agree (that APD) is understaffed and under siege” and not the truth that APD is poorly managed.

The next Mayor of Albuquerque must be 100% committed to the DOJ consent decree as written.

The next Mayor of Albuquerque must be 100% committed to implementing all the DOJ reforms and committed to turn APD round with new leadership and a return to community based policing.

If Wayne Johnson cannot accept the authority of the federal court and the federal monitor over APD and the terms of the consent decree, nor be committed to a complete overhaul of APD management he has no business running for Mayor of Albuquerque.