In a letter to District Attorney Kari Brandenburg dated Thursday, Chief Judge Ted Baca, presiding criminal Judge Charles Brown and grand jury Judge Stan Whitaker ordered the use of grand juries for the unique police shooting presentations to remain suspended until further notice.
The judges pointed out that Brandenburg’s office presents the cases to the grand jury only after determining there was no probable cause to pursue criminal charges against an officer.
“You assert, under these circumstances, that the presentation to the grand jury is fair, balanced, and impartial,” the judges wrote. “Assuming that to be true, we, nonetheless, believe that the appearance of a lack of impartiality is impossible to avoid, especially given that the procedure is used only for police officers and specifically limited to officer-involved shootings.”
The presentations already had been on ice since the spring, when Brandenburg reached an agreement with the court to temporarily suspend them following Journal stories that made public for the first time their inner workings.
In the intervening eight-plus months, a dozen cases have sat dormant in a backlog.
Since then, the four-term district attorney has taken her push to resume the practice to the Police Oversight Commission and local radio stations.
Brandenburg did not return Journal telephone calls seeking comment Monday. Instead, she declined comment through an email from a spokeswoman.
Since the inception of the practice 25 years ago, no police officer has ever been criminally charged for shooting someone on duty in Bernalillo County nor has any shooting been ruled “unjustified” by one of the grand juries.
Despite criticism from civil rights lawyers, the American Civil Liberties Union, the news media and Albuquerque city councilors, Brandenburg has made clear her intentions to resume the presentations. In a letter to judges dated Jan. 7, the DA said she planned to begin scheduling the 12 backlogged cases for grand jury presentations in February and March.
The judges’ response letter noted that Brandenburg had “unilaterally” decided to resume the presentations, despite there being no agreement to resume the practice.
The judges said in their letter that Brandenburg has never answered their initial request: to explain the legal authority that “supports and justifies the use of the grand jury for these particular and unique proceedings.”
Brandenburg has said publicly and in Journal interviews that the law is vague but that it does not specifically prohibit her from using grand juries to consider whether a police shooting was “justified.”
In their letter, the judges called that argument “legally fragile and unpersuasive.”
The question of legal authority first came up in 2011 in the context of a civil wrongful death lawsuit filed by the family of Iraq war veteran Kenneth Ellis III, who was fatally shot by APD officer Brett Lampiris-Tremba in January 2010.
Attorneys for Ellis’ family sought a copy of the recording of Lampiris-Tremba’s grand jury presentation, and a District Court judge agreed. Attorneys for the city and APD appealed the district judge’s decision, and the question wound up in the state Supreme Court.
In a motion filed in the Supreme Court, attorneys Joe and Shannon Kennedy and Frances Carpenter argued that Brandenburg had no legal authority to use grand juries with no power to indict to consider police shooting cases. The attorneys described the presentations as a “sham” designed to provide cover for police officers and the District Attorney’s Office.
The justices granted the motion without weighing in on the specific objections raised, and the attorneys were given a copy of the recording.
That paved the way for the Journal’s request under the New Mexico Inspection of Public Records for recordings in the Ellis case and several other police shootings, which the District Court granted.
After the Journal stories were published, critics took exception to several aspects of the presentations, including: grand jurors were provided instructions on different versions of justified shootings, but no criminal statutes; prosecutors met with officers to review testimony, often without the officers’ attorney present, prior to grand jurors hearing the case; and Brandenburg’s chief deputies often asked leading questions of officers in the grand jury room, such as: “Were you afraid?” when asking why they shot someone.
Barring a successful appeal, it would appear Brandenburg would now be forced to decide in-house whether there is probable cause to charge an officer involved in a shooting, which is how most district attorneys across the nation make determinations in such cases.
— This article appeared on page A1 of the Albuquerque Journal