ABQ Reports published the following article.

Following the article, I added additional information and commentary.

ABQ REPORTS: Violent crime spikes again in ABQ; up by 18% in 2017; Up by 77% since 2012
January 30, 2018

https://www.abqreport.com/single-post/2018/01/29/Violent-crime-spikes-again-in-ABQ-up-by-18-UP-BY-77-SINCE-2012

Dennis Domrzalski

“Just how epic is Albuquerque’s crime wave that began under then-Mayor Richard Berry?

Really epic. In 2017, violent crime in the city jumped by 18 percent over the previous year, and since 2012, violent crime has grown by an astonishing 77 percent.

The massive increase in 2017 was incredible when you consider that nonfatal shootings soared by a unbelievable 148 percent.

Homicides were up 23 percent, robberies were up by 43 percent, rapes were up 21 percent and aggravated assaults climbed by a mere 4.2 percent, according to new crime data the Albuquerque Police Department.

That big spike in crime last year followed a 15.5 percent increase in violent crime in the city in 2016, and a 13.3 percent jump in property crime. Actually, the city’s crime rate has been climbing since 2012, and last June, the city was named the auto theft capital of the nation by the National Insurance Crime Bureau.

And during last year’s mayoral race, crime, public safety and the Albuquerque Police Department were the biggest issues.

Many have blamed the sharp increase in crime in a corresponding decrease in the size of APD. The department had nearly 1,100 officers in 2010, but today has 845 full-time, sworn personnel. Many blame that decrease in manpower on the policies of former Mayor Richard Berry.

APD is budgeted for 1,000 officers, and Mayor Tim Keller has pledged to hire several hundred more officers.

The most eye-popping figures in the new crime stats are those for robberies, which increased by 43.6 percent, and nonfatal shootings, which, again, were up by 148 percent.

Retired APD Sgt. Dan Klein said the city’s homicide rate probably would have been much higher were not for the efforts of paramedics, and doctors and nurses at the University of New Mexico Hospital.”

DINELLI COMMENTARY

I have no doubt that the sharp increases in our crime rates are related to the decrease in size of the Albuquerque Police Department.

At this point in time, the number one priority should be addressing and rebuilding APD rank and file.

APD HOMOCIDE INVESTGATION UNIT OVERWHEMMED

On December 28, 2017 Albuquerque reached a record high of 75 murders in one year.

(December 28, 2017 Albuquerque Journal, page A-1, “The city has reached 75 homicides with decomposed body, police say”)

The record high was originally 70 murders in the year 1996.

Currently, there are only five homicide detectives, with three in training, and a sergeant, that are currently investing the 75 murders.

APD’s homicide clearance rate has usually been in the 80% and and it is now only 59%.

Complicating the murder investigations is the increase in the number of homeless people that have been murdered this year.

Fifteen (15) of the 75 murders involve homeless people.

The murder of homeless people are usually very difficult to solve because the murders usually occur in the outdoors and there is not much of a crime scene left where evidence and witnesses can be found.

Clearly APD’s Homicide Detective Unit is overwhelmed by the caseload and needs immediate help and resources.

The Homicide Investigation Unit needs to be at least 15 detectives.

APD is in a crisis mode and it needs to concentrate on recruiting seasoned homicide detectives from other departments if necessary.

At the very least, APD needs to ask for temporary assignment of personnel from other agencies such as the Bernalillo County Sheriff’s Department or the State Police to help clear out the cases.

The longer a homicide case takes to complete an investigation or is neglected because of lack of personnel, the less likely the cases will be solved.

Adding to the crisis is the emotional toll an unsolved murder takes on the families of the victims.

FELONY VIOLENT CRIME STATISTICS

According to Albuquerque Police Department (APD) statistics, the total number of violent crimes in Albuquerque dipped two years and then steadily increased as follows:

2010 – 4,291
2011 – 4,207
2012 – 4,151
2013 – 4,323
2014 – 4,934
2015 – 5,409

According to the Bernalillo County District Attorney’s Office, from 2009 to 2015, Albuquerque’s violent crime rate increased by 21.5%.

Murders spiked in Albuquerque by over 50% from 30 murders in 2014 to 46 murders in 2015.

According to Federal Bureau of Investigation (FBI) statistics, in the last eight (8) years, Albuquerque has become the is fifth-most violent city in the country on a per capita basis while the nation’s violent crime rate dropped by 13.7%.

FELONY PROPERTY CRIME STATISTICS

Albuquerque has become number one in the nation for auto thefts.

The National Insurance Crime Bureau’s latest Hot Spots report shows Albuquerque and of Bernalillo County as the worst place in the nation when it comes to auto theft per capita.

In 2016 more than 10,000 vehicles were stolen in Albuquerque and Bernalillo County or more than 27 vehicles a day.

According to Albuquerque Police Department (APD) statistics, the total number of property crimes in Albuquerque has steadily increased each year during the last six (6) years as follows:

2010 – 26,493
2011 – 28,109
2012 – 29,804
2013 – 30,614
2014 – 30,523
2015 – 34,082

In 2015, APD made 9,049 felony arrests, 22,639 misdemeanor arrests, 2,213 DWI arrests, and 2,552 domestic violence arrests.

In 2016, APD made 8,744 felony arrests, 19,857 misdemeanor arrests, 1,070 DWI arrests, and 2,462 domestic violence arrests.

In 2016, field service officers responded to 546,550 calls for service with a priority 1 response time of 11 minutes, 35 seconds which is approximately two minutes over the national standard.
(Source: 2017-2018 City of Albuquerque Proposed budget)

FAILURE TO PROSECUTE MISDEMEANOR CASES PART OF CRIME WAIVE

The Bernalillo Count District Attorney Office has a misdemeanor division with approximately 25 Assistant District Attorney’s assigned to the division who are responsible for prosecuting cases that mandate a court record.

In 2009, there were 746 people arraigned for felony DWI and that number dropped to a mere 104 in 2015.

In 2008, there were 6,538 people arraigned for misdemeanor DWI and in 2015 that number dropped by close to 60% to 2,942.

In 2010, the APD traffic unit had more than 34 officers and today there are less than 12.

There is a direct correlation with the dramatic decline in the number of DWI arrests and arraignments and traffic arrangement cases and the severe decline in APD personnel.

APD SWORN POLICE DEFICIENCY

Eight (8) years ago, the Albuquerque Police Department (APD) was the best trained, best equipped, best funded department in its history and fully staffed with 1,100 sworn police officers.

In 2010 , APD response times had been brought down below the national average and crime rates were hitting historical lows.

In eight (8) years, APD went from 1,100 sworn police to 853 sworn police.

From 2010 to 2014, the city council fully funded 1,100 positions despite the mass exodus of sworn police and the APD Police Academy’s failure to recruit and keep up with retirements.

Three years ago, the City Council voted to reduce funding from 1,100 sworn officers to 1,000 sworn officers because of the Berry Administration’s failure to recruit and keep up with retirements.

In 2017, response times went to historical highs with calls to APD taking hours instead of minutes to respond threatening public safety.

In 2017, APD was funded for 1,000 sworn officers but has only 853 sworn police officers.

Funding for the unfilled positions has gone to pay police overtime.

Last year, APD busted its overtime budget by $4 million dollars and it went from $9 million budgeted to $13 million spent in overtime.

In 2016, field service officers responded to 546,550 calls for service with a priority 1 response time of 11 minutes, 35 seconds which is approximately two minutes over the national standard.

Of the 853 sworn police 436 are assigned to field services, resulting in 417 sworn police officers assigned to the various specialized felony units and command staff.

Given the volume of felony arrest and cases, APD is severely understaffed to complete felony investigations.

A December 11, 2015 Albuquerque Police Department Comprehensive Staffing Assessment and Resource Study concluded that APD needs at least 1,000 sworn officers.

CONCLUSION

The truth is Albuquerque’s severe rising crime rates have been in the making for the last eight (8) years.

Albuquerque’s increasing crimes rates have a lot to do with the fact that APD is so severely understaffed it cannot complete felony investigations and get the cases over to the District Attorney for successful prosecution.

APD is not sufficiently staff to even patrol our streets and enforce basic traffic laws.

In Albuquerque, the more things change, the more things stay the same when it comes to DWI arrests and convictions.

On January 28, 2018, The Albuquerque Journal did a Sunday, bold RED headline story “ODDS OF BEATING DWI CHARGE: ROUGHLY 50-50; DA says his office making changes to get more cases to trial.

https://www.abqjournal.com/1125423/odds-of-beating-a-dwi-charge-roughly-5050.html

Review of Metropolitan Court statistics for 2017 reveals that 42% of all DWI cases resolved in Metropolitan Court were dismissed either by prosecutors or judges.

Last year, 58% of DWI charges ended with a guilty verdict or negotiated plea agreements.

In 2016, the percentages favored defendants, with 55% of drunken driving cases being dismissed compared to 45% ending in plea agreement or convictions.

In 2016, the number of alcohol-related traffic deaths in Bernalillo County climbed to 53 which was the highest number since the year 2000.

NOT JUST A BERNALILLO COUNTY PROBLEM

In November, 2019, Mothers Against Drunk Driving (MADD) released the results of a DWI court monitoring program in the six counties with the highest DWI-related fatalities.

(See November 21, 2017 Albuquerque Journal, Metro & NM Section, page A6, “New report shows high DWI dismissal rates.”)

1,106 DWI cases were monitored in six counties and it was found that 36% of the DWI cases were dismissed, 35% resulted in guilty outcomes, 23% resulted in prosecutions; 4% of the charges were reduced or amended, and 1% were found not guilty.

According to the MADD survey, the top three reasons cases are dismissed are:

1. officers or witnesses failed to appear
2. the suppression or exclusion of testimony or evidence, or
3. because the defendant received a plea deal.

The truth is the three top reasons DWI cases are dismissed have been the same reasons for decades.

Problems exist regarding the mandatory scheduling of witness interviews, especially police officer interviews, failure to exchange evidence to the defense resulting in exclusion of the evidence at trial, testing of forensic evidence and witnesses not available for trial, and conflicts with police officer witnesses not available for trial due to courtroom scheduling of multiple trials involving the same officer.

CONVICTION RATES IS WHAT MATTERS

Arresting and charging someone for DWI means absolutely nothing to deter future acts unless there is a conviction and consequences for violating the law.

In 2007, DWI conviction rates in Bernalillo County ranged between 70% and 80%.

In 2016, the DWI conviction rate was 58%.

In 2017, the DWI conviction rate was 45%.

In November, 2017 Governor Martinez announced that the New Mexico Department of Transportation would be providing a grant of $300,000 to the Bernalillo County District Attorney Office help assist with DWI prosecutions.

During the Governor’s press conference announcing the grant, Bernalillo County District Attorney Raul Torrez complained that his office did not always have the resources, the staff, the training or the logistical support to effectively prosecute DWI cases.

Bernalillo County District Attorney Raul Torrez acknowledges the reduced conviction rates over the years but went on to claim the DWI dismissal rate has dropped during his first year in office because his office has taken steps of “fixing many of the technical issues that lead to the dismissals”.

The Bernalillo County District Attorney’s office is the largest law firm in the State of New Mexico employing upwards of 300 people with an annual budget of $18.2 million dollars.

The Bernalillo County District Attorney office when fully staffed is supposed to employ upwards of 120 full time felony and misdemeanor prosecutors, and would include felony DWI cases.

According to the state’s Sunshine Portal, Torrez’s office has 45 vacant positions out of the 299 positions the office has been budgeted for by the New Mexico legislature.

(See https://www.abqreport.com/single-post/2017/11/13/DAs-Office-Has-45-Openings)

At least 14 of the vacancies in the Bernalillo County District Attorney’s office are for trial attorneys, and another 14 are for legal secretaries.

There is no doubt that 14 more trial attorneys as well as 14 more legal secretaries, would go a long way in reducing the backlog of felony cases that Torrez has been complaining about the entire first year he has been in office.

Torrez is also seeking a 30% increase in budget of $5.4 million from the 2018 New Mexico legislature to be used to hire 20 more prosecutors.

Having enough prosecutors is not all that is needed when it comes to DWI.

NO ARRESTS MEANS NO PROSECUTIONS AND NO CONVICTIONS

The Bernalillo County Metropolitan court handles cases for virtually all law enforcement agencies that make arrests in Bernalillo County, including the Albuquerque Police Department (APD), the Bernalillo County Sheriff’s Department (BCSO) and the New Mexico State Police.

85% of the DWI cases arraigned in the Bernalillo County Metropolitan court are APD cases.

The statistics from the Bernalillo County Metro Court are alarming and reveal just how bad things are with the Albuquerque Police Department (APD) being unable to patrol our streets, get drunks off the road, make DWI arrests and prosecute DWI cases.

In 2008, there were 633 felony DWI arraignments and the number steadily declined each year to 104 in 2015.

In 2008, there were 6,538 DWI misdemeanor arraignments and the number steadily declined each year to 2,942 in 2015.

(Source: http://www.nmcourts.gov/reports-and-policies.aspx)

According to the 2017 city budget, the Albuquerque Police Department made more than 2,200 DWI arrests just a few years ago.

In contrast, APD made only made 775 DWI arrests in the first six months of the current budget year.

In other words, DWI arrests are down around 30%.

A decade ago, APD was making more than 5,000 DWI arrests a year.

In 2010, the Albuquerque Police Department had 14 DWI officers assigned to the Traffic Division which had a total of 34 officers enforcing all traffic laws.

Today, the Traffic Division has only 12 sworn police officers with 8 that do DWI cases.

In 2012, the Albuquerque Police Department made 4,842 DWI arrests and in 2016 the number of DWI arrests dropped by more than half to 2,347.

In 2009, there were 746 people arraigned for felony DWI and that number dropped to a mere 104 in 2015.

In 2008, there were 6,538 people arraigned for misdemeanor DWI and in 2015 that number dropped by close to 60% to 2,942.

APD STAFFING SHORTAGE

There is a direct correlation with the dramatic decline in the number of DWI arrests and arraignments and the severe decline in APD personnel.

The December 11, 2015 Albuquerque Police Department Comprehensive Staffing Assessment and Resource Study prepared by Alexander Weiss for the Department of Justice concluded that APD needs at least 1,000 sworn officers.

The Weiss report concluded that 1,000 sworn police officers were sufficient for Albuquerque provided that APD officers did not respond to certain low priority calls such as minor traffic accidents or false alarm calls.

In 2009, APD had 1,100 police officers with approximately 700 assigned to field services, patrolling our streets over three shifts.

Eight years ago, response times were at 8.5 minutes, below the national average.

In 2009, APD command staff recommended that Albuquerque needed at least 1,200 sworn officers for community-based policing and felony prosecutions.

The number of APD sworn officers has fallen from 1,100 officers to 850 over the past eight years.

In 2015, APD has 841 sworn police officers with only 440 assigned to the field services patrolling responding to 69,000 priority one 911 emergency calls a year.

Today, in 2018, APD employs 836 sworn police officers with 430 assigned to the field services, divided into three shifts, to patrol the streets and take Priority 1 calls.

CONCLUSION

Based on review of the Metropolitan Court statistics, DWI arrest and traffic are a very low priority of APD, not out of desire, but out of necessity.

With APD field officers responding to over 69,000 priority one calls a year, not to mention thousands of lower priority calls, it is surprising the statistics are not worse at Metropolitan Court.

APD cannot be proactive with DWI arrests until such time APD is fully staffed.

Without arrests, there can be no prosecutions and no convictions even if you have enough prosecutors available.

I think I am going to puke if I hear one more time the metaphor “let’s make lemonade out of the lemons” when it comes to the ART bus project and what City Councilor Isaac Benton has to say about the project.

On Sunday, January 28, 2018, Channel 4 reporter Jen French did an exhaustive “Eye On New Mexico” report dedicated to the ART Bus project.

http://www.kob.com/albuquerque-news/eye-on-new-mexico-arts-unfulfilled-promises/4762159/?cat=10106

Albuquerque City Councilor Isaac Benton was the only guest interviewed on the program and Channel 4’s  failure to have at least one opponent of ART to take issue with Benton was disappointing.

It was very painful to watch Benton pathetically drone on and on and continue to defend and promote the ART Bus project as he did for the past three (3) years.

Not at all surprising is that Benton now blames the Berry Administration for all the problems for the project.

It was the Albuquerque City Council and Benton who failed in their oversight responsibilities of the project and failed to press the previous administration for answers and the truth.

Least anyone forget, the Albuquerque City Council voted to approve and authorize the spending of a $69 million dollars federal grant money that has yet to be paid to the City and that congressional committees have reduced by $20 million.

Benton now wants to make lemonade out of a liquid that should be “flushed”.

Benton is a licensed architect by profession and he should have been able to identify early on the design and construction problems with ART, but he did not, and instead said it was the Mayor’s project.

City Councilor Pat Davis is also getting into the “come to the rescue act” by questioning the bidding process on the buses.

It is an embarrassment that Davis is now wondering if the city picked the best bus vendor.

Davis claims he has found out the City is paying millions more for the electric buses than another low bidder.

It was Davis who supposedly secured a bus platform for his district to the tune of $1 Million.

What Benton and Davis both did was get into heated and ugly exchanges with voters at City Council meetings and administration presentations on ART.

More than once, Benton went so far as to berate and humiliate opponents of ART, especially when addressing the audience at city council meetings when he had exclusive control of the meeting as President of the Council.

One exchange I do remember is when Benton was very condescending to a woman in a wheel chair when she said she was a bus rider and was concerned about wheel chair accessibility and being able to safely get to the platforms in the middle of the road and dodging traffic.

Benton assured the lady the architects and contractors knew what they were doing.

Now that the bus platforms have been built, it turns out that they are not in compliance with Federal handicap accessibility requirements.

A few of the platforms will have to be demolished or at the very least modified.

All the problems with ART are so bad, it was announced by the Keller Administration that it will probably not be up and running for at least a year.

City Hall needs to recognize the ART Bus project is never going to be a success in the long run, even if the “kinks” are worked out with the electric buses and the platforms.

January 27, 2018

Complaint filed against Jessica Hernandez’s law license.

Dennis Domrzalski

An activist who is part of the federal reform settlement agreement with the Albuquerque Police Department has filed a complaint against former City Attorney Jessica Hernandez asking that she be investigated for deceiving a federal court judge and secretly recording the independent monitor in the case.

The activist, Maria Bautista, filed the complaint against Hernandez on Friday with The Disciplinary Board of the New Mexico Supreme Court. The complaint said that “Ms. Hernandez should be investigated for violation of Rule 16-303 Candor toward the Tribunal, Rule 16-401, Truthfulness in statements to others, Rule 16-803 Reporting Professional Misconduct, Rule 16-804 Misconduct.”

The Disciplinary Board has the authority to revoke a lawyer’s license.

Bautista is active in one of the many groups that are called “amici,” or “Friend of the Court,” that have standing in federal court in the settlement agreement.

Hernandez and APD employees, including then-Assistant APD Chief Robert Huntsman, secretly recorded the independent monitor, James Ginger, at least 12 times between March of 2016 and February of 2017.

The federal court judge who is overseeing the reform case, Robert Brack, said that Huntsman’s secret recording of Ginger in March 2016 was probably a violation of the settlement agreement and an attempt to undermine Ginger and the reform effort.

Brack also said that Hernandez tried to deceive him when she filed a motion in late October of 2017 accusing Ginger of being biased against APD. Attached to that motion was a 14-minute video that Huntsman took with his department-issued lapel camera and a transcript of the video. But Brack said the transcript covered only nine minutes of the video and that Hernandez had tried to deceive him by not providing the full transcript.

On Nov. 16, 2017, Brack denied the city’s motion for an evidentiary hearing to determine if Ginger was biased against the city. He also ordered the city to turn over to him any other recordings that were made of Ginger.

On Dec. 22, 2017, Hernandez turned over audios and transcripts of 11 other recordings that she and others made of Ginger.

In a Jan 18 status conference in the reform case, Brack said he was not going to pursue sanctions against Hernandez or others for secretly recording Ginger.

“I’m letting you-all know I have no interest in looking back. My shoulder’s to the wheel and my hand is on the plow. I am looking forward with all of you and I have no intention of pursuing sanctions against the prior administration,” Brack said during the status conference, “and I certainly don’t think the successor administration has any accountability on that score.”

https://www.abqreport.com/single-post/2018/01/27/Complaint-filed-against-Jessica-Hernandezs-law-license

The below article published by ABQ Reports (Dennis Domrzalski) takes to task the credibility of our District Attorney Raul Torrez and the way he his managing the largest law firm in the State:

Dennis Domrzalski

DA Torrez Crying Wolf?
January 25, 2018
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Imagine this scenario: You’re the owner of a company with a 300-person sales department. The manager of the sales department tells you he needs a 30 percent budget increase so he can hire 20 more sales people in order to do his job properly. You look at the sales department and realize that with its current budget it has 45 unfilled jobs, 18 of which are sales reps.

You would?

A. Give the sales department the 30 percent increase with no questions asked.
B. Ask the sales manager why he hasn’t filled those 45 vacant positions and what he’s doing with all that unspent money.
C. Demand that the sales manager fill the 45 vacant positions and see how things go before asking for more money.
D. Tell the sales manager that with his attitude he should be working in government.
E. Fire the sales manager.

That scenario I just described is real, but for a slight change: The sales manager is actually Bernalillo County District Attorney Raul Torrez. He runs the 300-person DA’s office and he is asking the state Legislature for a 30 percent increase to his current budget of $18.2 million so he can hire 20 more attorneys and give us more crime-fighting punch.

But, like the sales manager, Torrez has 45 unfilled positions in his office, 18 of which are attorneys.

So why is Torrez asking for more money for more attorneys when he hasn’t hired all the attorneys he’s budgeted for?

Why doesn’t Torrez fill those positions and see how his office does with 18 more attorneys before asking for more money?

And why aren’t state lawmakers demanding to know of Torrez why he’s asking for more money for more attorneys when he has 18 vacant attorney positions?

One possible answer to those questions is that this is government, and this is New Mexico, and no one seems to care about how our money – that’s right, it’s our money – is being spent.

So why hasn’t Torrez filled those vacant positions and what is he doing with that money?

Well, he’s apparently using it to hire contract attorneys to go through a backlog of police shooting cases. And he’s apparently using it to pay the attorneys he does hire more than the state says he should be paying them. Here’s what Torrez’s spokesman, Michael Patrick, emailed me in response to my questions about why Torrez is asking for more money when he has 18 unfilled attorney positions:

“The Second Judicial District Attorney’s Office has been underfunded for years, a point made plain by the fact that while this jurisdiction has 50% or more of the reported crime in the state it only receives 26.5% of the funds appropriated for prosecutors. Though authorized, attorney positions in this were never adequately funded – indeed, as the following graph makes clear, our employees are paid less than other criminal justice stakeholders including other district attorneys, the Attorney General’s Office and the public defender’s office.

“In addition to paying special prosecutors to review one of the largest backlogs of officer involved shootings in the country, and providing critical resources for trial, we primarily use vacancy savings to recruit and retain more experienced attorneys rather than losing them to the Attorney General’s Office, the U.S. Attorney’s Office or the private sector, all of which are able to pay substantially more money. Moreover, the strategy of paying more to recruit and retain more experienced attorneys is already paying off, as evidenced by the fact that our homicide conviction rate increased 15% in the first year of this administration.”

So how poorly are those attorneys in Torrez’s office paid that the DA has to offer them more money to stick around?

According to the state’s Sunshine Portal, a trial attorney in Torrez’s office is paid $67,662 a year. A senior trial attorney gets $74,755 a year, and a chief deputy DA – Torrez has one unfilled job in this category – $91,270 a year. There is also a vacancy for a deputy DA, which pays $82,596 a year.

Torrez wants more money from the Legislature to hire 20 more attorneys. Yet, with his current budget he has 18 vacant attorney positions.

Something isn’t right here.

Maybe some legislators and members of the news media will start asking Torrez some hard questions.

DINELLI COMMENTARTY: NOT THE FIRST TIME TORREZ HAS TARNISHED HIS CREDIBILTY

According to the article the Bernalillo County District Attorney’s Office has 45 vacancies which includes 18 attorney positions.

Mr. Torrez now wants funding for and additional 20 attorneys without explaining how he is going to recruit 38 attorneys to go work for him.

Bernalillo County District Raul Torrez has been in office a little over a year.

By all news accounts, he seems to be doing his very best to prosecute violent crime and repeat offenders to bring down our crime rates.

However, Torrez lost a lot of support from the courts, and some would say his credibility, when he blamed the Courts for all of our high crime rates.

Less than six months after being sworn in as Bernalillo County District Attorney, Raul Torres blamed the New Mexico Supreme Court’s Case Management Order (CMO) for Albuquerque’s increasing crime rates.

The CMO was necessitated by the fact that so many defendants were awaiting arraignments or trials and being held in the Bernalillo County Detention Center, or jail, for months, and at times years, to the point that the jail was becoming severely overcrowded exceeding its capacity of approximately 2,200 inmates.

Torrez had his District Attorney Office issue a report that outlined the so-called problems he perceived since the issuance of the Case Management Order by the Supreme Court in February, 2015.

The main points of the DA’s report was that defense attorneys were “gaming” the court mandated discovery deadlines under the CMO to get cases dismissed by demanding evidence they are entitled to under the law and the Rules of Criminal Procedure and asking for trials instead of entering into plea agreements.

The Judges strongly disputed the Torrez report.

In response to the Torrez report, the Courts did their own case review of statistics and found out the it was the Bernalillo County District Attorney’s Office that was dismissing the majority of cases.

The Case Management Order (CMO) has since been amended and Torres and the Courts seem to be getting along much better.

CONCLUSION

The problem is that Torrez does not seem to understand fully that the prosecution of any crime demands full cooperation of law enforcement, the public defender’s office and the courts.

The criminal justice system is very much like a chain in that a chain is only as strong as its weakest link.

Instead of advocating for increase funding not only for his office, Torrez ignored how underfunded the Courts, the public defender office as well as all law enforcement are in the State Of New Mexico.

I really want our still new District Attorney to do well and still confident he will.

However, Torrez is going to have to learn that blaming others and complaining about lack of resources is no substitute for making tough decisions to run an office and doing a good job.

Last November, 2017, the Albuquerque City Attorney filed a motion requesting an evidentiary hearing to determine if Federal Monitor James Ginger should be removed for being biased against the Albuquerque Police Department (APD) in his auditing and reporting of the progress made with the Department of Justice reforms.

Attached to the motion was a transcript of 9 minutes of a 14-minute lapel camera video secretly recorded by the former Assistant APD Chief of a meeting with Federal Monitor James Ginger without his permission or knowledge.

The Federal Court denied the City’s motion for an evidentiary hearing but ordered the city to turn over to the court all secret recordings the City made of the Federal Monitor.

It turns out that there were 12 meetings secretly recorded over a two-year period with hours of secret recordings made by the Albuquerque Police Department command staff and former City Attorney Jessica Hernandez of the court appointed Federal Monitor James Ginger.

In a transmittal letter forwarding the 12 recordings to the Court, the City claimed the recordings were done for internal use only.

Nine of the recording were made by a civilian member of the APD command staff and one recording was made by then City Attorney Jessica Hernandez during a meeting in the City Attorney’s office.

In a transmittal letter forwarding the 12 recordings to the Court, the City claimed the recordings were done for internal use only and not to undermine the reform process.

The City’s defense that the recordings were done for internal use only was proven false when city officials did not let the Federal Monitor know he was being recorded and then turned around and tried to use one of the recording to make the monitor look bad and show he was biased.

THE “SMOKING GUN”

One secret recording made by the City Attorney occurred during a time the City Attorney and Federal Monitor were at odds with each other and publicly disagreeing on the reform process.

Following is the beginning portion of a meeting recorded behind closed doors in the City Attorney’s office:

City Attorney Hernandez: “I’m not planning to take … I’m not going to be writing notes. If you are comfortable not…”

Dr. Ginger: “Unfortunately, if I don’t take notes, I don’t remember. I’m getting to be that age.”

The Federal Monitor objected to the request not to take notes saying he needed to take notes to help his memory.

What is alarming is that the former City Attorney Jessica Hernandez tells the Federal Monitor at the beginning of the meeting that she did not feel anyone should take notes.

The City Attorney failed to disclose to the Federal Monitor she was actually recording the private meeting and their conversation at the time.

The appearance of impropriety by not disclosing to the Federal Monitor that the meeting was being recorded is astonishing.

The way the conversation proceeds makes it clear that what the City Attorney wanted to record were admissions or statements by the Federal Monitor that reflected he was biased and to record anything that would compromise his position that could be used to have him removed by the Federal Judge.

The private meeting continues with City Attorney Hernandez telling Dr. Ginger she has concerns about her personal relationship with Ginger and that the relationship is not working by making the following accusation:

City Attorney Hernandez: “I know that you have told people that you can’t or you won’t work with me, and that’s not going to work.”

Dr. Ginger: “That’s not true. I don’t know who told you that, but it’s incorrect. I don’t think I’ve ever uttered the phrase in my life “I can’t work with so and so.”

City Attorney Hernandez complains that the APD monitoring team is setting goals impossible to reach and asserts that the goals constantly change by saying:

City Attorney Hernandez: “When they receive feedback from you or from the monitoring team, they would like it to be something they can continue to rely on. They would like it to not shift, and they would like it to not be different when the monitor’s report comes out.”

The recorded meeting conversation then turns to the recording made by former APD Assistant Chief Robert Huntsman with his department-issued lapel camera:

“Hernandez: “You expressed your frustration with me, and you told them ‘this department is going to be collateral damage” referring to the Huntsman recording.

According to the body camera video released by City Attorney Hernandez last November in the motion asking for an evidentiary hearing to determine if the Federal Monitor was biased, Dr. Ginger does indeed use the words ‘this department is going to be collateral damage but Ginger denies he said it:

Dr.Ginger: “I’m telling you I didn’t say that. I know I didn’t say it because that’s not who I am. I’m not vindictive. Never have been, don’t plan on being.”

Even though Dr. Ginger used the words “collateral damage”, City Attorney Jessica Hernandez took his use of the term out of context asserting that Ginger was intentionally trying to damage APD which has never been the case.

In the context used by Dr. Ginger, “collateral damage” means damage that would result to an unintended target, APD, because of his disagreement or feud with City Attorney Jessica Hernandez.

It’s the intent that matters, and Ginger by his actions, words and reports has never intended to do harm to APD but rather do his job and report to the Federal Court APD’s failures and successes in the reform process.

FEDERAL COURT DECIDES NOT TO IMPOSE SANCTIONS

On January 9, 2017, United States Federal Judge Robert Brack held a status conference with the parties to the DOJ consent decree.

During the status conference Judge Brack announce he would not impose sanctions against the City for the secret recordings of the Federal Monitor:

“I’m letting you-all know I have no interest in looking back. My shoulder’s to the wheel and my hand is on the plow. I am looking forward with all of you and I have no intention of pursuing sanctions against the prior administration … and I certainly don’t think the successor administration has any accountability on that score. So this is a — this is a public hearing, I know. I’m glad for that information to be out.” Judge Brack said during the status conference.

Brack’s decision not to waste any more time on the past and not to sanction the City is understandable when he said:

“I really appreciate everyone, everyone’s willingness to take a fresh look into and to “reset,” as we keep overusing that metaphor. … I appreciate the pronouncements that I’ve seen from Mayor Keller and the evidence of good faith and a really willingness to make this process work for the betterment of the City and the people of Albuquerque, as evidenced by the chief’s appearance at the meeting of the Community Policing Council last night. Those are all just — we’re off to a great start.”

Judge Brack’s decision not to take action himself is understandable and must be respected, but that should not be the end of it when it comes to restoring the reputation of the City Attorney’s office.

The fact is, there are hours of secret recordings of twelve confidential meetings that have been turned over to the Federal Court that the public has no idea what was said nor what APD was up to nor instructed to do by the City Attorney.

Attorney’s are held to a higher standard, and their professional conduct is governed by the Code of Professional conduct.

NEW MEXICO CODE OF PROFESSIONAL CONDUCT FOR LAWYERS

The New Mexico Code of Professional responsibility governs the conduct of attorneys.

Any infraction of the Code of Professional responsibility is investigated by the Disciplinary Board for the State Bar of New Mexico.

The Federal Monitor is a court appointed official and is therefore an officer of the court or tribunal.

There are any number of the rules of professional conduct that may apply to the hours of secret recordings, including the following:

Rule 16-303 Candor Toward the Tribunal
A. Duties. A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

Rule 16-401 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 16-106.

Rule 16-803 Reporting Professional Misconduct
A. Misconduct of Other Lawyers. A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Rule 16-804 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) willfully violate the Supreme Court Rules on Minimum Continuing Legal Education or the New Mexico Plan of Specialization, or the board regulations promulgated under the authority of the rules or the plan;
(f) state or imply an ability to influence improperly a government agency or official;
(g) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(h) engage in any conduct that adversely reflects on his fitness to practice law.

CONCLUSION

The hours of secret recordings are proof of just how ethically challenged Chief Gorden Eden, his command staff and City Attorney Jessica Hernandez were during three years of the DOJ reform process.

Attorneys have an ethical responsibility to report unethical conduct or impropriety they witness in a pending case.

The secret recording of a federal court appointed official without their knowledge is an extremely serious breach of ethics by any licensed attorney and should never be tolerated.

Former Chief Administrative Officer Rob Perry was the supervisor of former City Attorney Jessica Hernandez and no one knows if Rob Perry approved or sanctioned the secret recordings.

Both Rob Perry and Jessica Hernandez are licensed New Mexico attorneys and they need to be compelled to disclose what they knew about all the secret recordings by APD command staff, and in particular explain in full detail why they did not disclose to the Federal Monitor he was being recorded without his consent nor knowledge.

US District Court Judge Brack may not want to take action himself and impose sanctions against the city, but at the very least he should consider referring the matter to the New Mexico Disciplinary Board for the State Bar and let them investigate the City Attorney’s office for unethical conduct.

At the very least, anyone of the other parties to the Department of Justice (DOJ) consent decree should file a complaint with the State Bar of New Mexico Disciplinary Board to investigate and sanction if appropriate.

Public confidence needs to be restored in the City Attorney’s Office and the removal of Jessica Hernandez as City Attorney and the departure of CAO Rob Perry was only a good start.

https://www.abqreport.com/single-post/2018/01/24/Reform-monitor-Sea-change-at-APD