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 his office was introducing a new disclosure policy. The policy is based on the 1974 United States Supreme Court ruling Giglio v. United States, 405 U.S. 150 (1972). 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 including police officers and sheriff officers who are witnesses for the prosecution in any case.
The Supreme Court ruling in the Giglio case in nothing new and has been required since 1972. 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. The postscript to this blog article outlines the information that will be asked in the questionnaire to law enforcement and contained in the October 14, 2020 letter from District Attorney Torrez. A link to the October 14 letter from the District Attorney to APD and the BCSO is here:
LET IT BE MADE PUBLIC
On November 6, DA Torrez announced he intends to create a 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 case or prohibit them from testifying in court. The DA’s Office said it hopes to begin publishing the list on its website early 2021. The list will consist of the names of officers who have Giglio disclosures that prosecutors are required to provide to defense attorneys where law enforcement witnesses may be 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. 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 cases and it is done on a case-by-case basis.
BERNALILLO COUNTY SHERRIFF MANNY GONZALES RESISTS
After Bernalillo County Sheriff Manny Gonzales received the letter in October from District Attorney Raul Torrez, a BCSO spokesman said the letter was a “sensitive matter” and that the office would be writing a letter of response to the DA’s Office. The BCSO did say it had concerns over the confidentiality and constitutionality of the policy.
Shortly after learning of the new DA’s policy, Sheriff Manuel Gonzales sent a memo to all BCSO deputies telling them not to respond to the DA’s questionnaire. Instead, Sheriff Gonzales told his deputies to answer two questions he provided for them to answer. Those two questions are:
1. “Are you aware of any sustained Internal Affairs investigatory findings indicating you provided untruthful testimony, or were found to be untruthful in the course of your duties?”
2. “Are you aware of any court or judicial body that has determined you provided false or deliberately misleading testimony under oath?”
DA TORREZ RESPONDS TO SHERIFF’S RESISTANCE
DA Torrez quickly criticized the Sheriff’s resistance to responding to the DA’s questionnaire. DA Torrez told Sheriff Gonzales that asking just two questions “improperly narrows the scope of material that should be disclosed”. DA Torres went on to ask for the Sheriff Gonzales’s cooperation. In a one-page response, Sheriff Gonzales called the eight-question questionnaire “lengthy and intrusive,” and said he believes the information requested in the DA’s questionnaire “intrudes on the privacy rights of our deputies and is constitutionally immaterial.”
DA Torrez sent Sheriff Gonzales a letter in response and wrote:
“One of the more troubling aspects of your letter is the purported finality of your decision. … You appear to have no interest in a dialogue with my office to discuss your concerns. Instead, you simply refuse to follow your constitutional and statutory duty, as if that is the end of the matter. Your letter smacks of the type of deliberate indifference or reckless disregard for the truth in withholding evidence from the prosecution that can serve as the basis for civil liability on the part of police agencies. … Like your prolonged resistance to body cameras, your position on [the disclosure requirements mandated by the US Supreme Court] unnecessarily calls into question the integrity of your office’s investigations.”
In a December 4 interview with KOB TV 4, DA Torrez had this to say about Sherriff’s Gonzales resistance to the mandatory disclosures:
“I think this is a police and law enforcement leader who doesn’t understand that the world has changed fundamentally about the public’s expectation for transparency and accountability. … It’s not for the sheriff to decide what is constitutionally immaterial. … That’s what prosecutors are for. That’s what attorneys are for. That’s why we have courts, and independent fact finders to review the information, there are procedural safeguards. But ultimately, every federal court and the few state courts that have looked at this have resoundingly rejected that argument.”
“It’s my belief, and frankly, it’s the belief of virtually every court that’s looked at this, that public servants that are wearing a badge and a gun that are authorized to enforce the law and use force on the streets of Albuquerque and investigate crimes– when they’ve engaged in misconduct, they don’t have a privacy, right to keep that information, certainly from prosecutors. … The constitution, in fact, requires that we ask the questions, and that you know, that they respond and answer those questions.”
Gonzales declined to an interview with KOB 4 but said in a statement:
“Mr. Torrez should … focus on prosecuting cases and obtaining justice for victims in Bernalillo County which he has failed to do.”
After sending his correspondence to Sheriff Gonzales, DA Torrez notified the New Mexico Public Defenders Office and the New Mexico Criminal Defense Lawyers Association of the dispute with the Sheriff. Torrez also sent both the exchange between the offices. DA Spokeswoman Brandale Mills-Cox Torrez’s said the DA’s Office will continue to prosecute criminal cases investigated by the Sherriff’s office. However, Mills-Cox said the DA’s Office will inform the courts and opposing counsel that the Sheriff’s Office is not complying with the Supreme Court disclosure requirements and said it this way:
“We have informed both the Sheriff and the criminal defense bar that we intend to ask these questions during pre-trial witness interviews and, should deputies refuse to answer these questions, we will join defense in any motion to compel disclosure pursuant to our constitutional obligations.”
SHERIFF GONZALES DEFLECTS DEMANDS
Sheriff Gonzales in a letter to DA Torrez rendered his legal opinion and wrote:
“We believe the information requested in your questionnaire intrudes on the privacy rights of our deputies and is constitutionally immaterial.”
In a statement, Sheriff Gonzales said:
“[The DA’s letters contain] false allegations and direct contradictions of what I have instructed our deputies to do, and that is to follow the law. … Understanding the Brady and Giglio court rulings’ intent, the Sheriff’s Office has a questionnaire form each deputy is required to answer, which sufficiently meets the obligations under Giglio and Brady. … Finally, in lieu of threatening this office with frivolous litigation, Mr. Torrez should instead focus on prosecuting cases and obtaining justice for victims in Bernalillo County, which he has failed to do.”
Bernalillo County Sheriff’s Office Spokeswoman Jayme Fuller said that Sheriff Gonzales is committed to upholding the United States Constitution, is committed to serving and protecting people in the community, and that Sheriff Deputies will provide the U.S. Supreme Court disclosure material he believes is required under the law. Fuller said:
“Despite the DA’s lengthy correspondence, he failed to provide our Office with any authority, other than his oblique reference to [US Supreme Court rulings] that would justify the use of his lengthy and intrusive questionnaire. … Further, neither the U.S. Attorney’s Office nor the N.M. Attorney General’s Office have submitted a similar questionnaire to this Office. For many years, our deputies routinely participate in Giglio disclosures and interviews regarding case prosecution with the U.S. Attorney’s Office.”
PUBLIC DEFENDER’S OFFICE REACTS
New Mexico Public Defender’s Office spokeswoman Maggie Shepard said that in the past, defense attorneys have struggled and had to fight to get the materials reflecting a history of dishonesty, use of force, bias or other issues involving law enforcement called to testify. According to Shepard:
“We are encouraged that DA Torrez is saying he will hold BCSO deputies and leadership accountable to their community. … We believe all police misconduct is relevant to the testimony they give in court. As DA Torrez has implemented this program, we’re seeing more transparency from his office and from law enforcement, and that benefits the community.”
NOT THE FIRST TIME SHERIFF GONZALEZ CHALLENGED ON MANAGEMENT OF SHERIFF’S OFFICE
Sheriff Gonzales’s dispute with District Attorney Raul Torrez is not the first time he has shown he is a “law enforcement throwback” to days gone by failing to keep up with changes in the law and failing to adopt law enforcement best practices.
LAPEL CAMERA OPPOSITION
Gonzalez has gotten a lot of mileage and publicity with his very public opposition to lapel cameras. Sheriff Gonzales has consistently opposed the use of lapel cameras by the Bernalillo County Sheriff’s office while lapel camera usage is required of APD and law enforcement agencies throughout the country. Many Democrats and Republicans strongly disagree with Sheriff Gonzales’ resistance to ordering the use of lapel cameras by his deputies. Last fall the Bernalillo County Commission allocated $1 million in startup money, plus $500,000 in recurring annual funds, for the sheriff’s office to get dashboard cameras and lapel cameras, but Sheriff Gonzales refused and no equipment was ever purchased.
On July 15, Sheriff Gonzales essentially ignored the lapel camera usage by all law enforcement in the state mandated by the 2020 legislature. At the time, Gonzales announced he was looking to partner with a private company so his deputies can put “smart phones” in their vests and record video instead of using body cameras. The suggestion to use “smart phones” was met with extreme ridicule. State Senator Joseph Cervantes, D-Las Cruces, the sponsor of the mandatory use of lapel cameras by all New Mexico law enforcement, burst out laughing when told of the sheriff’s plan to use smart phones.
Senator Cervantes had this to say:
“I’m pleased to see the sheriff is finally willing to adopt one of the tools of modern law enforcement. … We passed a law that requires body-worn cameras, so if he wants to do it by duct-taping iPhones on his officers’ chests, that’s his prerogative, although I think it creates the possibility of becoming a laughingstock.”
A $4 MILLION DOLLAR SETTLEMENT BY BCSO AND STILL NO LAPEL CAMERAS
On March 6, 2020, it was reported that the family of a mentally ill Elisha Lucero, 28, who was shot and killed by Bernalillo County Sheriff’s deputies in front of her home during a misdemeanor battery call last summer, settled their lawsuit with the county for $4 million. The two Sheriff Deputies who shot and killed Elisha Lucero were not wearing lapel cameras. The two are the same deputies who were sued, along with the Sheriff, by the ACLU for racial profiling during traffic stops of African American women. (See below: RACIAL PROFILING ACCUSATIONS AGAINST BCSO.)
In July, 2019, mentally ill Elisha Lucero, 28, was shot to death in front of her RV, which was parked in front of her family’s South Valley home. Deputies had responded to the home after a relative called 911 saying Lucero had hit her uncle in the face. According to the 911 call, a relative said Lucero was mentally ill, needed help, and was a threat to herself and to everybody else. Just one month prior, Lucero had called BCSO and asked to be taken to the hospital for mental health issues. According to the lawsuit, when deputies arrived, they said Lucero initially refused to come out of the home. The 4-foot-11 Lucero, naked from the waist up, ran out screaming and armed with a kitchen knife and the deputies pulled their revolvers and shot her. According to an autopsy report, she was shot at least 21 times by the deputies.
The Lucero family civil suit states:
“the deputies created a situation where they were forced to use deadly force against Ms. Lucero or have justified their unlawful use of deadly force with the falsehood that Ms. Lucero presented a deadly threat to one or all of them.”
The Lucero lawsuit filed on January 13 alleges Sheriff Gonzales has fostered a “culture of aggression” in the department and too few deputies are trained to handle people with mental health issues. The allegation of a “culture of aggression” and the use of deadly force when dealing with the mentally ill is identical to what the Department of Justice investigation found within the Albuquerque Police Department (APD) 6 years ago resulting in the DOJ federal Court Approved Settlement Agreement. Albuquerque has paid out $5 million to $6 million for it’s most high-profile officer-involved shootings, including the shooting of mentally ill homeless camper James Boyd and mentally ill Christopher Torres prior to beginning its reform effort with the Department of Justice.
Even after the shooting of Elisha Lucero and the $4 Million settlement, Sheriff Gonzales did not change his opposition to lapel cameras. Gonzales has proclaimed his deputies do not need lapel cameras because they have audio recorders on their belts. He also said he saw no proof that lapel cameras reduce use of force by law enforcement.
BCSO RACIAL PROFILING CASES SETTLED
In this day and age of the Black Lives Matter movement, civil lawsuits are the norm and not the exception against any law enforcement agency and the Bernalillo County Sheriff’s office is no different. There is no doubt if Sheriff Gonzales runs for Mayor, his management of BCSO will be examined as will any and all lawsuits filed against the department for systemic racial profiling under his watch.
On July 8, 2020, it was reported that two Black women from Wisconsin are suing Bernalillo County Sheriff Manuel Gonzales and two deputies alleging racial and religious profiling stemming from a traffic stop in July 2017. The lawsuit was filed about five months after Bernalillo County reached a $100,000 settlement with Sherese Crawford, a 38-year-old African-American who filed a lawsuit against BCSO after she was pulled over three times in 28 days by deputies Patrick Rael and Leonard Armijo, the same deputies named in the new lawsuit, in spring 2017.
According to the lawsuit filed by Sisters Consweyla and Cynthia Minafee, and a 5-year-old child, Yahaven Pylant, were traveling from Phoenix back to Wisconsin when they were pulled over by Rael on Interstate 40 the morning of July 7, 2017. Cynthia Minafee was Yahaven’s legal guardian at the time. According to the lawsuit, the traffic stop lasted almost an hour and included an extensive search of the vehicle with a drug dog.
According to the lawsuit, Rael told the women to get out of the car and said he could smell marijuana on Cynthia. Cynthia said that she had not smoked in the car and that there was no marijuana in the vehicle. Consweyla Minafee, the driver, was not issued a traffic citation, but Cynthia Minafee was issued a citation for not having Yahaven properly restrained. The citation was dismissed in May, online court records show.
A link to the full Albuquerque Journal article is here:
It was on December 6, 2017 that the American Civil Liberties Union (ACLU) of New Mexico filed a lawsuit on behalf of Sherese Crawford, a 38-year-old African-American woman on temporary assignment in New Mexico as an Immigration and Customs Agent (ICE) deportation officer. The lawsuit alleged that Bernalillo County Sheriff’s Office (BCSO) deputies racially profiled her by pulling her over three times, twice by the same deputy, within a month with no probable cause or reasonable suspicion that she was breaking the law. None of the 3 times she was pulled over was she given a warning or a citation.
ACLU of New Mexico Staff Attorney Kristin Greer Love had this to say at the time:
“Our client is an accomplished federal agent who was targeted for driving while black … BCSO unlawfully and repeatedly stopped her because she fit a racial profile. Targeting people because of the color of their skin is unconstitutional and bad policing. Racial discrimination has no place in New Mexico, and BCSO must take immediate action to ensure that this behavior does not continue.”
CLAIMING TO REACH ACROSS PARTY LINES BY COZZYING UP TO TRUMP
This past summer, Sheriff Gonzales went to the White House to participate in a photo op with President Donald Trump to attend Trump’s announcement of a federal law enforcement initiative to target violent criminals and repeat offenders in 7 cities with some of the highest crime rates in the country which included Albuquerque. Gonzales declared at first he was going to met with Trump and that he had the desire and obligation to reach across party lines when it came law enforcement. It turns out it was a Trump press conference and photo op and Sheriff Gonzales did not speak. Republican United States Attorney for New Mexico John Anderson, who was appointed by Trump, did attend and gave interviews after the press conference.
The problem was that Gonzales was the only county and city official who who was invited to attend. The Bernalillo County District Attorney, the Mayor, the President of the City Council and the Presiding District Court Judge, all who are Democrats dealing with the same high crime rates as Sheriff Gonzales, where not even invited to attend.
True or false, the Gonzales trip was widely criticized by Democrats. Senator Martin Heinrich even went so far as to demand that Sheriff Gonzales resign, with the resignation demand considered by many as over the top. The Sheriff’s trip was interpreted as an endorsement of President Trump’s law enforcement policies. Sheriff Gonzales should have known better and not gone at all or have sent the Under Sheriff in his stead.
COMMENTARY AND ANALYSIS
On September 6, 2019, BCSO Sheriff Manny Gonzales made it known he was planning on running for Mayor in 2021. Sources have confirmed he is running on a platform of being tough on violent crime, bringing down the city’s high crime rates and consolidating the Albuquerque Police Department and the Bernalillo County Sheriff’s Department to create a single law enforcement agency.
It’s likely a Mayor Gonzales will not only appoint a new APD Chief, but he will micro manage APD that is under a federal consent decree. Sheriff Gonzales has not publicly expressed his concerns about the DOJ consent decree, but it is known to many in law enforcement that he has significant reservation and disagreements with the federal Court Approved Settlement Agreement (CASA). Confidential sources say Gonzales intends to campaign for Mayor on a platform to dismiss the federal court case and abolish all the reforms imposed upon APD and seek dismissal of the federal lawsuit.
Ostensibly, Sheriff Gonzales thinks that getting into a public spat with the elected Democratic Bernalillo County District Attorney on mandatory disclosure of sheriff deputy misconduct will somehow ingratiate him with conservative voters, both Democrats and Republicans, saying he stands on his principals and for his law enforcement colleagues and against all crime. It’s also likely Gonzales believes that support from conservative Democrats and conservative Republican voters will propel him into the Mayor’s office and he will defeat Mayor Tim Keller as Keller seeks a second term. He is sadly mistaken
The blunt truth is that a badge does not allow anyone to ignore the courts nor give one a license to practice law without a license on any level. Further, despite what Gonzales may think, it is the Bernalillo County District Attorney who is the Chief Law Enforcement Officer of the County, not the Bernalillo County Sheriff. Responding to the Bernalillo County District Attorney’s questionnaire on police misconduct as written should have been a no brainer. But not for Gonzales in that it would not allow Gonzales to get the headlines he has been coveting ever since he decided to run for Mayor and by his repeated law enforcement sweeps within the city limits where APD has primary jurisdiction. With the sweeps in the City, Gonzales will be able to say his office is doing the job APD cannot do, which is get violent criminals off the streets.
What he is in fact revealing with his resistance to the mandates of the United States Supreme Court on disclosures is that he feels he and his deputies are above the law. Simply put, they are not, and the courts will no doubt order him to disclose the information in all criminal prosecutions if push comes to shove. One or two contempt of court citations will likely get the Sheriff’s attention.
Sheriff Gonzales has a full two years left of his current term and he is prohibited from running for another term. 2021 is just a few days away. If he is indeed running for Mayor in 2021, he should go ahead and announce now, resign his position and let the Bernalillo County Commission find someone who really wants the job and not campaigning for another.
If he is not running for Mayor, it is suggested that Gonzales stop trying to practice law without a license, or at least fire anyone who has been giving him such poor legal advice on what has been mandated by the United State Supreme Court. Gonzales needs to honor the request made by the Chief Law Enforcement Official of the county, otherwise he risks all the arrests and cases his department handles are worthless because of dismissals or the DA declining to prosecute the cases.
GIGLIO MATERIAL BEING 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:
UNITED STATES SUPREME COURT RULINGS
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.”
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.