Bernalillo County District Attorney Kari Brandenburg has agreed to suspend indefinitely the controversial, decadeslong practice of presenting police shooting cases to “investigative grand juries.”
Ted Baca, chief judge of the Second Judicial District Court, sent a letter to Brandenburg on Thursday indicating the two will soon begin discussions about a different course.
“Please let this confirm our recent discussions during which you agreed to suspend, for an unspecified period of time, the use of investigative grand juries for officer involved shootings,” Baca wrote. “During this time we will meet to address the questions and concerns about these proceedings that have appeared recently in the public discourse.”
The process, which began in the late 1980s, doesn’t give grand jurors the power to indict, but instead simply asks them to decide whether each shooting was justified. No police shooting has ever been ruled unjustified.
Since the Journal described in detail the process in a story published last month, plaintiff’s lawyers, the American Civil Liberties Union, family members of men shot by Albuquerque Police officers and others have criticized the practice.
Critics have called it a “sham” and said it is just a way to alleviate pressure to reform APD. They insist it is not the objective review of shootings the DA and police officials have said it is.
Some critics have called for Police Chief Ray Schultz to step down and are seeking a Department of Justice civil rights investigation, partly in response to APD’s number of officer-involved shootings – 24 since 2010, 17 of which have been fatal.
Brandenburg said Thursday she plans to speak with Baca in the next week to plan a meeting that could include judges, attorneys who frequently represent police officers, police officials, prosecutors and others. The group will discuss alternatives to the current process.
“I think what we have done in the past has a lot of integrity, but times are changing,” Brandenburg said in an interview. “More transparency is always a good thing, and I am going to do what I said I would do and look for alternatives.”
Brandenburg said a preferable alternative would be to take each police shooting case before a judge in a preliminary court hearing. But that option would require charging each officer with a crime, she said.
“Ethically, we just can’t charge someone with a crime if we don’t believe a crime has been committed,” she said. “So if we were to try and go that route, we would have to have a rule change.”
Other options include appointing a special prosecutor for each case, which Brandenburg dismisses as too expensive, or forming a “review board” composed of citizens, attorneys, judges and law enforcement officials.
Brandenburg’s opponent in the upcoming Democratic primary race for the DA’s Office, public defender Jennifer Romero, has joined critics in denouncing the practice.
Brandenburg, who is seeking a fourth four-year term, has said the special grand jury process provides a second set of unbiased eyes to look at the work prosecutors in her office have done to determine whether police shootings are justified.
There is no Republican challenger in the November general election.
Cases now on hold
Nine police shootings remain in the DA’s case pipeline, according to figures provided by the office, and Brandenburg said it is unclear how they will be handled.
For example, an investigative grand jury had been scheduled to hear evidence Wednesday in APD officer Byron “Trey” Economidy’s February 2011 fatal shooting of Jacob Mitschelen.
That case, which drew national headlines after revelations that Economidy had listed his job description as “human waste disposal” on Facebook, is now on hold, Brandenburg said.
“The only two options we have available under the law are what we’re doing now, or make the decision in-house,” she said. “We’ll see what we can do to consider a different process, but we really are going to have to reinvent the wheel here.”
The process differs from most jurisdictions in New Mexico and nationwide, where the DA decides whether probable cause exists that an officer has committed a crime. If so, the case is taken to a traditional grand jury for possible indictment.
The “investigative grand jury” system began as a response to a spike in police shootings in the mid- to late 1980s.
Part of the consternation from critics comes from the way local prosecutors present police shooting cases to the grand juries: They say they typically provide the jurors with instructions on pertinent statutes, all related to justifiable shootings: for self-defense, defense of another and justifiable homicide by a public officer or employee.
Jurors are not provided instructions on any criminal statutes, such as what constitutes voluntary or involuntary manslaughter, although prosecutors point out that the grand jurors have access to the grand jury manual – a voluminous reference and orientation guide that includes instructions on charges ranging from minor crimes to murder.
In a recent state Supreme Court ruling, the justices agreed with a local plaintiff’s attorney that there was no statutory basis for the special grand jury process, although the court did not say using them was improper.
That decision gave the lawyers access to recordings of the grand jury proceedings. The court also provided the Journal copies of the recordings in response to a request under the Inspection of Public Records Act.
Those recordings provided the basis for the Journal’s earlier stories on the process.
— This article appeared on page A1 of the Albuquerque Journal