As the result of the death George Floyd and many other African Americans in the custody of police, protests across the country have resulted in demands for police reforms focused on accountability and transparency in law enforcement. The demands for law enforcement accountability and transparency have included making a matter of public disclosure police personnel records documenting misconduct.
KEEPING SECRET POLICE MISCONDUCT
Steve Allen, the former director of public policy with the American Civil Liberties Union (ACLU) of New Mexico put it this way:
“I think we’ve seen across the country, and certainly here in New Mexico, that public trust around our police departments has eroded.”
New Mexico Department of Public Safety Secretary Tim Johnson had this to say:
“It is true that the relationship between law enforcement and the communities we serve right now is strained for obvious reasons.”
On June 4, following protests across the nation and New Mexico over the death of George Floyd, Governor Michelle Lujan Grisham created an Advisory Council for Racial Justice. At the same time, Lujan Grisham announced her support for legislative proposals for police reform including making police disciplinary history a matter of public record.
Under New Mexico State law, it is not illegal to release disciplinary records of police officers. However, police departments that choose to keep them private cite an exception to the state’s Inspection of Public Records Act (IPRA) that provides “letters or memorandums, which are matters of opinion in personnel files” are exempt from public inspection. In 1977, the New Mexico Supreme Court specifically held that “disciplinary action” and other “matters of opinion” can be withheld. The Supreme Court held that the legislature anticipated there could be documents concerning disciplinary action that “might have no foundation in fact.”
Currently, each law enforcement agency in New Mexico can interpret the state’s public records law differently. The Albuquerque Police Department (APD) consistently releases Internal Affairs Investigations and the discipline records of officers especially when civil lawsuits are filed or an officer is charged with a crime. Many other departments in the state simply resist requests and do not release the personnel records. What this means is that there are varying policies throughout the state law enforcement agency that are in a constant state of change when new management takes over.
Civil rights attorney Shannon Kennedy has taken the Department of Public Safety (DPS), which oversees New Mexico State Police, to court over police records. Kennedy prevailed in such a case this year against the DPS that went to the New Mexico Supreme Court. According to Kennedy:
“The Department of Public Safety, State Police, has been an entity that has been very spotty in terms of responses to public records requests. … Transparency should be the policy. … There’s no reason that, if someone signs up to protect and serve a community, that if they’re disciplined that somehow becomes a secret that they can keep.”
Interim Department of Public Safety Secretary Tim Johnson had this to say about state police public records requests:
“As an agency, we try to be as transparent as we possibly can. … I lean on our lawyers, DPS lawyers, for advice on this and I’m told we are following the policy and the law.”
A link to related news coverage is here:
LIST OF POLICE OFFICERS WITH HISTORY OF DISHONESTY, USE OF FORCE AND BIASNESS TO BE MADE PUBLIC
In a letter dated October 14, 2020, Bernalillo County District Attorney Raul Torrez notified the Bernalillo County Sheriff’s Office (BCSO) and the Albuquerque Police Department (APD) that the Bernalillo County District Attorney’s Office is introducing a new disclosure policy based on the 1974 United States Supreme Court ruling Giglio v. United States, 405 U.S. 150 (1972). The Supreme Court Ruling involves the prosecution’s obligations in regards to criminal discovery and disclosure which, in part, requires information impacting the reliability of a witness’ testimony to be disclosed.
The Giglio ruling requires the prosecuting agency, in this case the Bernalillo County District Attorney’s Office, to disclose to a criminal defendant all information or material that may be used to impeach the credibility of the prosecution witnesses. It includes police officers and sheriff officers who are witnesses for the prosecution.
The Supreme Court ruling in the Giglio case in nothing new and has been required since 1972, but the DA’s office formalizing the process is new. According to the DA’s office, it is being done now because of the dramatic “recent slow-down” in the criminal courts giving the time to develop a training protocol and the infrastructure to launch the new policy.
According to District Attorney Raul Torrez, the new system will bring transparency to the criminal justice system and hold prosecutors and law enforcement accountable. Torrez told both APD and BCSO in his October 14 letter:
“My office joins a growing number of prosecutor offices around the nation that are embracing reform and police accountability by formalizing this Giglio inquiry process. Historically, requests for Giglio material have been done on a case-by-case basis and the results of earlier Giglio inquiries have not been searchable. Beginning in November my office will start implementing a formal and searchable system.”
The letter goes on to say that law enforcement officers listed as witnesses in an open case will receive a questionnaire where information like past misconduct of bias, use of force or truthfulness, or criminal charges must be disclosed. The findings will then be placed into an officer’s personnel file.
A link to the October 14 letter from the District Attorney is here:
GIGLIO MATERIAL THAT WILL BE ASKED FOR DISCLOSURE
In the October 14, 2020 letter, District Attorney Torrez outlined the information that will be asked in the questionnaire to law enforcement:
“Examples of Giglio information include but are not limited to:
MISCONDUCT THAT REFLECTS BIAS
Information that may be used to suggest that the investigative employee is biased for or against a defendant or witness in a case
Information that may be used to suggest that the investigative employee is biased against a particular class of people, for example, based on a person’s gender, gender identity, race, or ethnic group
Misconduct that reflects on truthfulness
A sustained finding that an investigative employee has filed a false report or submitted a false certification in any criminal, administrative, employment, financial or insurance matter in his or her professional or personal life
A sustained finding that an investigative employee was untruthful or has demonstrated a lack of candor
A finding of fact by a judiciary authority or administrative tribunal that is known to the employee’s agency, which concludes in a finding that the investigative employee was intentionally untruthful in a matter, either verbally or in writing
A sustained finding that undermines or contradicts an investigative employee educational achievements or qualifications as an expert witness
Inappropriate or unauthorized use of government data
A pending criminal charge or conviction of any crime, disorderly person, petty disorderly person, municipal ordinance, or driving while intoxicated matter
OTHER MISCONDUCT OR INVESTIGATIONS
Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is subject of a pending investigation
Any promises, offers, threats or inducements, including the offer of immunity
A sustained finding or judicial finding that an investigative employee intentionally mishandled or destroyed evidence
Misconduct that involves the use of force
Our office will disclose Giglio material will disclose to defense counsel, file a notice of disclosure, and will log the disclosure on a Giglio list.”
A link to the October 14 letter from the District Attorney is here:
In a statement released, the Bernalillo County DA’s Office had this to say:
“The District Attorney is committed to using every available tool to improve transparency, accountability and integrity within our criminal justice system. Giglio disclosures are a standard part of federal prosecution but they are not often used or well understood inside our state system. We believe they are an important component of our larger reform efforts and an essential step in ensuring that the system is untainted by bias, misconduct or dishonesty. We also believe it will have no impact on the vast majority of police officers who have no sustained findings on their record.”
According to a spokesperson for the DA’s Office:
“The District Attorney’s Office will provide public access any time a formal Giglio notice is filed in a pending case but we are currently prohibited from sharing specific, confidential information that may form the basis of our Giglio determination.”
The link to the news source is here:
LIST TO BE MADE PUBLIC
On Friday, November 6, the Bernalillo County District Attorney’s Office announced it intends to create a publicly available list of law enforcement officers who have disclosures reflecting a history of dishonesty, use of force, bias or other issues that might make them unfit to aid in a prosecution. The DA’s Office said it hopes to begin publishing on its website early next year,
The list will consist of the names of officers who have Giglio disclosures that prosecutors are required to provide to defense attorneys if their law enforcement witnesses are unreliable or biased. The new list is being touted as the first public database of its kind in the country.
District Attorney Raúl Torrez stressed the practice of disclosing the material itself is not new and emphasized it is based on the US Supreme Court case Giglio v. United States. Both the Law Offices of the Public Defender and the New Mexico Criminal Defense Lawyers Association routinely ask for Giglio disclosures at the beginning of every case and it is done on a case by case basis.
Not at all surprising, the public searchable database is being well received by the New Mexico Public Defender’s Office and the New Mexico Criminal Defense Lawyers Association. Jennifer Burrill, the vice president of the New Mexico Criminal Defense Lawyers Association, had this to say:
“[This Giglio disclosure are usually done] on a case-by-case basis … But to have a public searchable database is really a remarkable thing, and will help quite a bit with restoring trust between community members and police officers and hold everyone accountable. … When officers get in trouble a lot of times they’re allowed to resign and they move to another agency. … So with a transparent database other departments can look and find out whether that person has issues that are not welcomed at their department and end the practice of officers with misconduct issues being passed around from department to department.”
Bernalillo County District Attorney Torrez for his part had this to say:
“My sense is that the overwhelming majority of officers are not going to have cause for concern and are not going to have anything that would result in a Giglio notice from our office. I could foresee a situation where a department makes a personnel call based on sustained findings and after their due process is undertaken in the department, they reinstate this person. … We may make a judgment that this person will never testify again, and that hopefully will inform whether or not that law enforcement leader will keep that officer or that deputy in a position that could undermine future investigations.”
“Oftentimes police chiefs have no idea the person … has this credibility issue. … Frankly if they do have that information it might impact the willingness of those leaders to hire the officer and if they do hire the officer what type of responsibilities, they would give them. That is another really important reason to make this available.
A link to a related story is here:
APD AND BCSO RESPOND
A spokesman for APD said “we support transparency and the DA’s efforts to protect the integrity of prosecutions based on arrests by our officers. Chief (Harold) Medina is working with the DA to determine how to best accomplish this goal.”
The Bernalillo County Sheriff’s Office said the letter is a “sensitive matter” and that it is writing a letter of response to the DA’s Office. The BCSO did say it had concerns over the confidentiality and constitutionality of the changes.
CONFIDENTIALITY CONCERNS RAISED
The announcement of the new disclosure system was quickly questioned by APD Police Union President Shaun Willoughby and he had this to say:
“There’s a lot more questions than I have answers and I think that’s fundamentally my number one concern. We understand the DA has the authority to get this information, it’s almost required of his office to get this information by law. We just feel that it’s important to sit down and have an open dialogue with decision-makers before they roll it out so that our officers have the information to be successful. … I’m just disappointed with how the DA approached this. I’m disappointed that he didn’t bring stakeholders to the table.”
Willoughby said he is concerned about confidentiality and he is demanding to know more about the questions in the questionnaires and he wants more communication. No at all surprising, he says he would like more information on what’s coming so he can guide officers on how to protect themselves and their rights.
UNITED STATES SUPREME COURT RULING EXPLAINED
There are two landmark United States Supreme Court case that are at issue and they are Brady v. Maryland, 373 US 83, decided in 1963 and Giglio v. United States, 405 U.S. 150, decided in 1972.
Brady v. Maryland, 373 U.S. 83, (1965) is the 1965 case that established that the prosecution must turn over all evidence that might exonerate the defendant and aide in the defense. The prosecution failed to do so for Brady, and he was convicted and the conviction was overturned. The US Supreme Court found in Brady v. Maryland that due process is violated when the prosecution “withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.” This is the case even if the failure to disclose was a matter of negligence and not intent.
Giglio v. United States, 405 U.S. 150, is a 1972 Supreme Court case involving the prosecution’s obligations in regards to criminal discovery and disclosure. In Giglio, the Court went further and held that “all impeachment evidence falls under” the Brady holding. What this means is that the prosecution is obligated to disclose all information or material that may be used to impeach the credibility of prosecution witnesses, including police officers who are called as witnesses for the prosecution.
The consequences of Brady and Giglio are simply stated as police officers must be especially careful to avoid any and all actions or statements that could compromise their credibility. This could easily include racial slurs and expressions of racial prejudice. A good example involves the case of OJ Simpson when investigating homicide officer Mark Furhman was impeached on the witness stand for his history of racial slurs that destroyed his credibility on the stand.
One legal authority succinctly put it this way:
“[Under the Supreme Court rulings] the prosecution is legally required to disclose any misconduct or compromising information regarding the witness to the defense attorney, who will then use it to impeach the law enforcement witness on the stand. The end result can be the loss of what would have been a strong case.”
According to a defense law firm publication:
“A common problem across police departments and other law enforcement agencies is a failure to consistently provide local prosecutor’s with credibility information. Often, internal politics end up determining who is reported to the prosecutor’s office as unreliable and who is not. In response, some departments have tried to institute strict truthfulness policies and terminate officers who violate them. Others will attempt to place the officer in an administrative assignment.
The issue with both of these solutions is that police departments will inevitably act without any legal guidance and fail to follow the case law.
A good practice for police officers would be to periodically consider what their own answers would be to the following questions:
• If the witness is aware of any specific instances of misconduct, both within and outside the scope of his or her employment, that may bear on the witness’ credibility, including the finding of a lack of candor during any administrative inquiry.
• If the witness has any pending allegations of misconduct with his or her employing agency
• If the witness has ever had criminal charges filed against him or her, regardless of the outcome of the charges
• If the witness is aware of any evidence suggesting his or her bias against the target, subject or defendant.
• If the witness is aware of any findings of misconduct, allegations or pending investigations of misconduct similar to circumstances or potential defenses in the case, such as, coercion, entrapment, mishandling of evidence or use of force.
• If the witness is aware of any prior findings by a court concerning the witness that may impact on the witness’ credibility.
• If the witness is aware of any negative allegations or opinions about the witness’ reputation or character that have been in media stories or otherwise publicly aired.”
The link to the quoted legal authority is here:
COMMENTARY AND ANALYSIS
It should come as absolutely no surprise to anyone that Bernalillo County District Attorney Raul Torrez is taking steps to initiate a formal process to deal with the prosecution’s obligation to disclose information impacting the reliability of a law enforcement witness’ testimony. Torrez is a former Assistant United States Attorney for the District of New Mexico. He is familiar with the Department of Justice policies and procedures for disclosing information when it comes to federal law enforcement authorities.
Ever since taking office 4 years ago, Torrez has attempted to change policies and practices of the Bernalillo County District Attorney’s Office to model them after the United States Attorney’s Office. Best examples of this are his advocating for custodial hearings, demands for grand jury proceedings, his resistance to preliminary hearings and his reliance and referrals to the United States Attorney’s Office to prosecute violent felons.
Truth be known, all state prosecutors should already be fully aware of their burden and duties imposed upon them by both Supreme Court cases of Brady and Giglio. It’s taught in criminal and constitutional law school classes. If a New Mexico prosecutor is not aware of the requirements, they should be suspended from the practice of law until they learn it. Usually, the problem with law enforcement credibility is the withholding of information by the police officer themselves. Hence, Torrez’s wants to formalize the process.
The APD union president is seriously mistaken to even suggest or even remotely think that Bernalillo County District Attorney Torrez has as any obligation to the union, APD or BCSO for an “open dialogue” on the issue. Police Union President Willoughby can be “disappointed with how the DA approached this” all he wants, but DA Torrez has absolutely no obligation to allow “stakeholders to the table” whose obvious agenda would be to withhold any and all information they feel is inappropriate. That is strictly reserved to the prosecutor and ultimately the courts.
DIFFICULT BALANCING ACT
The overwhelming majority of police officers are honest and hard working with nothing to hide. It’s the very small number of police officer’s that are problematic that can bring disgrace and bring dishonor upon the department. Police officers with a history of abuse of force, dishonesty or other misconduct should not be able to count on anonymity and avoid proving they have changed. It’s what accountability of a public official is all about.
There is a big difference between having the legal authority to ask for and getting the information for legitimate use in a courtroom as opposed to just releasing personnel information for all the public to see and to be used for any reason. There are legitimate concerns opening up an officer’s personnel file that could harm of police officer’s reputation over frivolous infractions or be used to unfairly to discredit officers who have to be trusted to testify as witnesses in court.
Often times, there is a legitimate need to keep confidential matters in a progressive disciplinary process to ensure or preserve the employee-employer relationship. Another concern is with so much pressure and scrutiny in this day and age no one will want to be a police officer.
There are way too many law enforcement agencies in the state that handle releasing disciplinary records of law enforcement officers differently. Policies are always subject to change with change in department management, especially within Sherriff Departments where there is an election every 4 years. Consequently, the New Mexico legislature should take up the issue in the 2021 legislature to further clarify as to what extent personnel records of police can be released and make consistent policy throughout the state.