D.A. To Tackle APD Shootings

District Attorney Kari Brandenburg on Friday lamented the “limitations” of determining whether police shootings are justified under state law without the aid of “investigative grand juries,” but said her office will press on and that she hopes to clear a backlog of a dozen shooting cases by July 1.

State District Court judges forced Brandenburg’s hand earlier this week by indefinitely shutting down the controversial, decades-old practice of Bernalillo County prosecutors using grand jury panels to affirm their decisions that no probable cause existed to charge police officers involved in shootings.

Most district attorneys in New Mexico and around the country make decisions on police shooting cases internally.

Practically speaking, the judges’ order simply removes a step in the process and leaves the onus on the District Attorney’s Office for determining right and wrong when a police officer shoots someone in the line of duty.

But Brandenburg said in an interview that it was an important step.

By involving a grand jury, for example, prosecutors could compel witnesses and, in rare cases, uncooperative officers to testify by issuing subpoenas, she said. That option is now gone, although Brandenburg’s top deputies nearly always met with officers without issuing subpoenas to review cases before the grand jury presentations.

“I anticipate that’s going to be a problem, and that’s a big part of the reason we liked using the grand jury,” Brandenburg said. “But we can’t (use the grand juries) anymore, so we’ll just have to do the best we can.”

She said her deputies will now base their decisions solely on investigative reports prepared by the agency that employs the officer involved in each shooting. Prosecutors would try to interview officers only in the event there is a contradiction between reports.

Brandenburg said she plans to meet with her deputies next week to finalize a process to review the cases.

Among Brandenburg’s goals:

♦ From the time her office receives police reports, forensic evidence and other reports, she hopes to complete a report of findings, which would be made public in some form, within six months.

Brandenburg has said APD often takes as long as a year to get a completed case to her office. Police officials have disputed that figure, saying the average is about four and a half months.

In any case, it has taken the District Attorney’s Office up to another year to schedule cases for grand jury presentations.

♦ Prosecutors are considering including a statement — possibly around 1,500 words in length — in their reports from representatives of people shot by police. “We want the families to feel like they have some input,” Brandenburg said, adding that it’s not yet clear how much weight such statements would carry.

♦ The reports will likely include disclaimers about state and federal law, which gives police officers more leeway than civilians in using deadly force. Also included in the reports may be “waivers” explaining that no statements were given to prosecutors under oath.

Whatever the final process entails, Brandenburg said she hopes to have the first of the 12 backlogged cases finished with completed reports within 90 days. The rest, she said, could “optimistically” be finished by July 1.

She said one benefit of the new process will be completing cases more quickly.

“Our office is excited in terms of it will save us a ton of time,” the four-term district attorney said. “This will be a much easier process for us; it’ll be a lot less work. But this is a sad day for the community and for the justice system.”

In their letter dated Jan. 24 to Brandenburg, the judges cited the appearance that prosecutors are not impartial and noted the lack of legal authority authorizing prosecutors to use the unique grand jury presentations as their reasons for suspending the practice.

It was the second time the court had stepped in. In May, the judges and Brandenburg agreed to a temporary suspension after a public outcry followed Journal stories that, for the first time, showed details of the grand jury presentations. Since the inception of the process in the 1980s, each panel has agreed with the District Attorney’s Office that the police shooting it was considering was justified.

Brandenburg said her deputies have always presented the cases impartially.

“We can have opinions about cases and still make fair presentations of the evidence,” she said.

And Brandenburg said that, contrary to what they said in their letter, the judges never asked her to explain the legal authority for the special grand juries.

“They may have said that to you,” she said to a Journal reporter. “But I don’t communicate with people through the newspaper, and I don’t read the newspaper.”

When asked to respond to Brandenburg’s remark, Chief District Judge Ted Baca, one of three judges who signed the letter to the district attorney, said: “As judges, our first step is always to ask attorneys to provide legal authority for their position. Nothing goes forward until that hurdle is cleared.”
— This article appeared on page A1 of the Albuquerque Journal