On November 16, 2017, after sitting through a day long hearing before Federal Judge Robert Brack, I was witness to something that I do not recall ever seeing a Federal Judge ever do in my entire 40 year career as an attorney.
Federal Judge Robert Brack publicly admonished a party to a lawsuit and discredited them from the bench with an order making findings he had prepared for filing and filed simultaneously with his announcement of the ruling from the bench.
On November 16, 2017 the Court held a hearing on Federal Monitor James Ginger’s sixth progress report regarding the Albuquerque Police Department’s compliance with the Court Approved Settlement Agreement (CASA).
The sixth monitor’s report was again highly critical of APD and finding a “culture of accountability” markedly absent from APD.
One day before the November 1, 2017 release of the Federal Monitor’s sixth report, the City Attorney’s Office filed a motion challenging the impartiality of the Federal Monitor and citing a lapel camera video recording made in March, 2016 by Assistant Chief Robert Huntsman.
During a March of 2016 confidential meeting, APD Assistant Chief Robert Huntsman secretly turned on his lapel camera to record Federal Court Monitor James Ginger when he was having a heated discussion with City Attorney Jessica Hernandez.
The City filed a motion with the federal court challenging the impartiality of the Federal Monitor and demanding an evidentiary hearing on the matter.
The Motion attached affidavits from Chief Eden and Assistant Chief Huntsman and claimed that the Federal Monitor was hostile and biased towards APD and that the Court should decide if the monitor should be removed.
The Federal court denied the city’s motion for an evidentiary hearing but not before severely criticizing the city’s conduct and tactics.
(See November 16, 2017, page A-1, Albuquerque Journal: Judge blasts city’s tactics against APD Monitor)
Following is the blog report posted by Dennis Domrzalski, ABQ Report, detailing the Court’s findings on the City’s Motion for an Evidentiary Hearing:
“Federal Judge Nukes City And APD
November 16, 2017
Dennis Domrzalski, ABQ Report
Judge Brack Says APD Tried To Smear The Independent Monitor In order To Get Rid Of Him
Says APD Manipulated Video Evidence
Asst. Chief Huntsman Was Wrong to Secretly Record The Independent Monitor
Says APD Set The Monitor Up And Blindsided Him
The city and APD tried to throw a hand grenade into the police reform process in the final days of Mayor Richard Berry’s administration by accusing the independent monitor in the reform effort of being biased against the department.
On late Thursday afternoon, the federal court judge in the case responded by dropping an atomic bomb on the city, APD and assistant police chief Robert Huntsman.
U.S. District Court Judge Robert Brack accused Huntsman and the city of trying to smear and discredit the independent monitor, James Ginger, in an attempt to discredit the reform process itself.
In what amounted to an unprecedented and unrelenting public dress-down, Brack said in open court, and in front of Huntsman, APD Chief Gorden Eden and City Attorney Jessica Hernandez that the city, APD and Huntsman tried to deceive him, manipulated evidence and set up Ginger in an attempt to discredit him.
And, in making a secret lapel camera recording of Ginger on March 18, 2016, Huntsman apparently violated the reform settlement agreement the city signed with the U.S. Department of Justice, Brack said.
In ripping the city and APD, Brack denied the city’s request for an evidentiary hearing to determine whether Ginger was biased against APD.
Brack said the city’s behavior amounted to an “attempt to undermine and intimidate the monitor,” and added that he thought the city was playing a political game in the situation. “This game,” Brack said, “is not acceptable.”
In saying that the city tried to deceive the court, Brack pointed to the Oct. 31 motion filed by the city in which it said the secret video of Ginger that Huntsman made with his lapel camera was nine minutes long. The transcript of the video the city filed with the court represented nine minutes of video, Brack said.
But the city included the entire video with the motion, and it was 14 minutes long. The first five minutes of the conversation between Ginger and City Attorney Jessica Hernandez were pleasant and presented no reason for Huntsman to turn on his lapel camera, Brack said.
Brack said that the city tried to manipulate the situation by deleting the first five minutes out of its transcript of Huntsman’s video
“The Court finds that the manner in which the City framed the March 18, 2016 meeting comes dangerously close to obstruction of this reform process,” Brack’s order said. “ In his affidavit, Assistant Chief Huntsman swears that he turned on his on-body camera because of Dr. Ginger’s ‘escalating behavior.’ The DVD of the 2016 meeting that the City produced to the court of public opinion via YouTube and the Albuquerque Journal, which is just shy of nine minutes, could be spun in support of Assistant Chief Huntsman’s statement.
“The City produced a different video, however, to the Court. The official video exhibit is approximately 14 minutes long, with the five additional minutes on the front end. It is apparent why the City chose to cut these additional five minutes—they reflect an atmosphere of cordial conversation. There is certainly no evidence of irritation or ‘escalating behavior’ from Dr. Ginger that would have concerned Assistant Chief Huntsman.
“The discrepancy between these two versions of the secret recording is the most damning evidence that the City and APD leadership has manipulated the video to cast Dr. Ginger in a light that allegedly demonstrates bias or prejudice. Again, the Court finds the last nine minutes are insufficient to show bias or prejudice, much less the full 14 minutes.
“Moreover, if this video is not in direct contravention of paragraph 229 of the CASA, it is plainly not in keeping with the spirit of that paragraph, which restricts the use of lapel cams to official law enforcement duties.
“The City’s decision to secretly record the Monitor in order to blindside him later is unacceptable. This type of conduct chills the possibility of candid communication in the future and erodes trust. To ensure that the City has not surreptitiously recorded other meetings for future use, the Court orders the City to immediately produce, in camera, all video and/or audio recordings and/or transcripts it has secretly obtained of either the Monitor, the monitoring team, or of this Court.”
Brack said he wasn’t prepared Thursday to rule on whether the city of APD should be held in contempt of court, but he ordered DOJ attorneys to prepare a list of what things, if any, he could find the city in contempt of.
In ripping the city and APD for more than 10 minutes in open court, Brack said that Ginger was frustrated with APD’s slow progress on the reform effort.
In its motion in which it alleged that Ginger was biased against APD, the city noted that Ginger said that the reform effort was a “game.”
But Brack said Ginger was using everyday language and that the real political game in the situation was being played by the city.
“The city is the one that is playing games,” Brack said, while noting that the city’s motion was filed on the eve of the filing of Ginger’s sixth report and of a mayoral election in the city. He also blasted the city for withholding the video for 20 months.”
It was embarrassing watching City Attorney Jessica Hernandez argue the motion for the City and make arguments that stretched all credibility trying to justify the actions of Assitant Chief Huntsman and his unethical conduct in recording the Federal Monitor without his consent.
It was even more embarrassing to think that the Assistant Chief Robert Huntsman would think he could get away with his conduct of recording a court official without his knowledge or consent and during a confidential meeting.
The Federal Monitor Ginger is an officer of the court that reports directly to the Judge and represents the Judge.
City Attorney Jessica Hernandez and Assistant Chief Robert Huntsman should have been fined and sanctioned by the court for the underhanded recording of a federal court official during a confidential discussion and meeting.
However, what happened to them in a courtroom was enough to have an impact on their career reputations.
The city of Albuquerque, Albuquerque Police Department (APD) and Assistant Chief Robert Huntsman showed their absolute contempt for the Federal Court and authority over the Albuquerque Police Department by recording Federal Monitor James Ginger without his consent or knowledge and without his permission.
The recording by Huntsman of the conversation was noted by the Judge as a clear violation of the terms and conditions of the settlement agreement decree that specifically provides that police body cameras can only be used by police officials during legitimate contacts and interaction with the public.
City Attorney Jessica Hernandez and Assistant Chief Robert Huntsman should be thanked for their past service and notified that their services are no longer needed.
Both should be replaced by Mayor Tim Keller come December 1, 2017.