Cop Case Changes Proposed

A local civil rights lawyer has proposed two significant changes in presenting police shooting cases to so-called investigative grand juries — which have been a source of controversy and currently are on hiatus after state District Court judges balked at the process.

One proposed change would give the families of people shot by police a say in what evidence is presented to the panels, which don’t have the power to indict and which critics have labeled as a sham proceeding designed to absolve police officers of fault.

The other change would require the grand juries to provide a more specific finding than simply “justified” or “not justified.” For example, if a grand jury found a shooting “justified,” jurors would be required to explain whether it was self-defense, defense of another or justifiable homicide by a public officer.

Prosecutors in Bernalillo County have been presenting cases to the special grand juries since at least 1988, based on reviewing investigative reports from the law enforcement agencies that employ the officers involved. No grand jury here has ever found a police shooting “not justified.”

District Attorney Kari Brandenburg said in a telephone interview Friday that she is open to the proposals from attorney Joe Fine, although “nothing is set in stone.”

Negotiations between Fine and Brandenburg to change the controversial presentations, which were suspended last May, could be rendered moot if 2nd Judicial District Court judges decide to force the DA to choose another path for police shooting cases.

While that remains a possibility, the court has had no official response even after Brandenburg announced last week that she intends to start the process back up next month. Judges have only said they are considering whether Brandenburg has the authority under state statute or the New Mexico Constitution to use grand juries for the special purpose of determining whether police shootings were justified.

Through Court Administrator Greg Ireland, the judges again declined to comment on Friday.

The presentations came under fire in April after a series of Journal stories made public for the first time details of how Brandenburg’s top deputies were presenting police shooting cases to grand juries. The Journal obtained recordings of 14 presentations after a public records request.

For starters, the prosecutors told grand jurors they would be deciding whether shootings were justified or not justified under New Mexico law. But the grand jurors were only given instructions on different versions of justified shootings.

Prosecutors typically met with officers prior to the presentations, without the officers’ attorneys present, to review cases and potential testimony. And inside the grand jury room, prosecutors often led officers with questions such as: “Were you afraid for your life?” when asking them to explain why they shot someone.

The public never was given any information about the presentations besides a notice from Brandenburg’s office saying the grand jury had ruled that each shooting was justified.

And the families of men shot never had a say in what evidence was presented to the grand juries.

In a letter dated Thursday to District Court judges and copied to Brandenburg, Fine, who is suing APD and officer Sean Wallace for the fatal shooting of Alan Gomez in 2011, described the results of initial negotiations with the DA.

“Ms. Brandenburg has agreed in principal that my clients could present relevant evidence at any ‘investigative grand jury’ that the Court allows into Alan’s death, and that she would work with me to add greater detail to the finding form that the grand jury uses to document its decision regarding the lawfulness of a police shooting,” Fine wrote.

In the letter, Fine praised Brandenburg’s willingness to consider the concerns of Gomez’s family and said the negotiations represent significant progress toward a more trustworthy process for deciding whether police shootings were criminal. He also agreed with Brandenburg that if the presentations resume, recordings of them should be made public.

Fine, however, remains skeptical about some aspects of the process, although he did not list those in his letter.

Brandenburg said characterizing the negotiations with Fine as an agreement in principal would be going too far.

“But we’re open, as we have always been, to having conversations,” she said. “And if they want certain things presented, we’re open to that, too. They’d have to be relevant, though … If the guy had a fifth-grade teacher who said he was cute and was always smiling, I may have a problem with relevance there.”

Brandenburg has defended the grand jury presentations, saying she has no other options under state law other than to decide on police shootings herself. That is the way most other DAs in New Mexico and nationwide handle police shooting cases.
— This article appeared on page A1 of the Albuquerque Journal