DA announces new police shooting review protocol

Bernalillo County District Attorney Kari Brandenburg addresses the media during a press conference on January 22, 2013. (Roberto E. Rosales/ Journal file)

District Attorney Kari Brandenburg’s announcement this morning that her office will review police shooting cases internally — as most other DA’s in New Mexico and nationwide do — comes after nearly a year of the four-term prosecutor defending the previous system.

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Since the late 1980s, Bernalillo County’s top prosecutors have presented police shooting cases to “investigative grand juries,” which were asked to determine whether officers were “justified under New Mexico law” in using deadly force.

But last April, the Journal began publishing a series of stories that showed for the first time how unusual the presentations were. Previously, the only information the public ever received was through an emailed news release from the DA’s Office. The emails always said the same thing: that a Bernalillo County grand jury had determined the shooting was justified.

Never in the history of the presentations had 12 grand jurors found an officer wasn’t justified in shooting someone.

Perhaps the first indication that the process wasn’t exactly as Brandenburg and her predecessors described it was the revelation that, prior to the grand jury presentations, prosecutors already had decided there was no probable cause to charge a particular officer with a crime.

Those findings were reflected in the written jury instructions prosecutors gave to grand jurors, which included instructions for self defense, defense of another and justifiable homicide by a public officer. Each instruction was, essentially, for a version of a justified shooting. Grand jurors were not given jury instructions for negligent manslaughter, manslaughter, murder or any other statute that could lead a grand jury to return a finding that a particular shooting wasn’t justified.

After a public records request, the Journal obtained audio recordings of 14 police shooting grand jury presentations. A review of the recordings showed that prosecutors asked officers in front of the grand jury leading questions such as “Were you afraid?” when stepping the officers through the particulars of a shooting.

Despite criticism about the presentations from civil rights attorneys, the American Civil Liberties Union and others, Brandenburg for nearly a year defended the old process, which she was forced to suspend last May by the judges of the Second Judicial District Court.

The judges wanted to review the process after the Journal’s stories were published.

After months of waiting for Brandenburg to make public her new plan, local civil rights attorneys representing the family of an Iraq war veteran who was fatally shot by an APD detective began circulating a petition for signatures that would’ve had a special prosecutor installed to handle police shooting cases. The petition also asked for Brandenburg’s office to be cut out of the process.

By December, Brandenburg was making public statements about resuming the “investigative grand juries,” despite not having buy-in from the judges. She continued her campaign into January, twice saying in Journal interviews that the old process had integrity, and she should be allowed to continue it. Brandenburg also took to the airwaves, defending the unusual process on KUNM and KKOB. And she made a presentation about the use of “investigative grand juries” before the Police Oversight Commission.

The DA, now in her 13th year, has defended the process from the beginning.

But in a pull-no-punches letter to Brandenburg later that month, the judges made clear that the presentations would not resume.

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.”

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.”

Hours after outlining a new way forward in reviewing police shooting cases, District Attorney Kari Brandenburg this afternoon released her findings in one of more than a dozen cases: that APD officer Mario Perez was justified when he fatally shot Mark Beechum in January 2012.

Beechum had robbed the Catholic Center/St. Pius X complex and exchanged gunfire with Perez at close range, according to police.

In a findings letter dated Monday, Chief Deputy DA Sylvia Martinez wrote to Police Chief Ray Schultz that prosecutors found “no probable cause to believe that officer Perez committed a crime, and thus we will not present charges against officer Perez to a charging grand jury or a preliminary hearing.

Internal review by multiple chief deputies along with public posting of relevant documents are the hallmarks of a process District Attorney Kari Brandenburg outlined Thursday for handling officer-involved shootings.

A protocol was needed after the chief judge of the 2nd Judicial District Court told Brandenburg in January that the previous use of “investigatory grand juries” was being suspended indefinitely.

Brandenburg made the announcement at a Thursday morning press conference. The district attorney made clear that she believes the previous process to be better because of a grand jury’s ability to subpoena witnesses, take testimony under oath and create a record.

But that is no longer an option.

“Now, we’re exclusively involved in deciding probable cause,” she said.

The reports and interviews upon which the DA’s office relies for its decision will be posted on the district attorney website, along with the protocol.

Brandenburg said her office hopes to have the first report available later today.

In suspending “investigative grand juries,” several District Court judges cited the appearance that prosecutors are not impartial and noted a lack of legal authority authorizing the unique presentations.

Read the Journal’s initial reporting on the unusual use of the grand juries for police shootings here.