For more than two decades, police officials have countered criticism of dozens of officer-involved shootings in Albuquerque and Bernalillo County by noting that every case is reviewed by a grand jury.
But it is a highly unusual process in which the panels don’t have the power to indict a police officer even if they want to. Instead, the grand jury is tasked primarily with determining whether the shooting was “justified” or “not justified.”
No one involved in the process can recall a single “unjustified” finding since the process was put in place in the late 1980s in response to criticism of police shootings at the time — even in a case in which the officer was fired and the city paid big bucks to settle a civil lawsuit.
Critics say that’s by design.
“It looks to me like a device that’s designed to give police a pass on shootings,” said Ray Twohig, a longtime civil rights attorney. “The public should have no confidence whatsoever in this process — there’s no independent investigation … The goal is: ‘Let’s not indict any cops.’ ”
The Journal took an unprecedented look at the special grand jury process last week after the Second Judicial District Court provided recordings of one of the proceedings in response to the newspaper’s request under the Inspection of Public Records Act.
While grand jury proceedings are typically secret, the New Mexico Supreme Court recently concluded that the secrecy rules don’t apply to these panels because they don’t function the same way as traditional grand juries.
Prosecutors say they typically provide the grand jury panel looking at a police shooting 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 voluntary or involuntary manslaughter.
Prosecutors defend the process, saying a review by 12 members of the community should inspire public trust.
Police Chief Ray Schultz said he was unaware of the specifics of how police shooting cases were presented to grand juries, although he did say he believed they were “presented as justifiable homicides because the officers were acting inside the scope of their duties.”
Schultz said the DA’s Office should consider options beyond its current practice.
“It is incumbent, in order to gain the public trust, that each case be reviewed independently based on the comprehensive investigation that’s presented to them,” he said. “A one-size-fits-all approach may not be in the best interest of the community.”
A peek behind the curtain
The Journal listened to a recording of the grand jury review of then-APD officer Brandon Carr’s November 2009 shooting of unarmed U.S. Air Force veteran Rodrick Jones — a case in which Carr was fired, the city’s independent review officer said the shooting was unjustified, and the city settled a civil wrongful death lawsuit for $950,000.
After seven hours that included testimony from Carr and another officer that contradicted ballistics and forensic evidence, the grand jury did what all its predecessors had done: It ruled the shooting “justified” under New Mexico law.
Deputy District Attorney Gary Cade said police shootings are investigated as homicides.
“They are all treated as criminal investigations,” Cade said. “The officers are read their Miranda rights. Many avail themselves of an attorney. I can’t think of anyone who has gotten special treatment. Officers are always told: ‘You will be treated like anybody else who has shot someone.’ ”
Civil rights lawyers disagree.
In nearly every homicide that doesn’t involve a police officer, prosecutors take a proposed indictment to a target grand jury, which returns either a “true bill” of charges or a “no bill,” in which no charges go forward.
Attorney Shannon Kennedy said she had assumed for years that police shooting cases were taken to target grand juries. She learned about the investigative grand jury process last year and said it is designed to treat officers differently from ordinary citizens.
“They are basically operating above the law,” she said. “Officers in APD know about this process; they know they will be exonerated. This contributes to more and more police shootings, because there is this culture of no accountability.”
Albuquerque Police Officers Association officials did not respond to requests for comment.
APD officers have shot 24 people since 2010, 17 of them fatally.
Twenty-six officers fired shots in those incidents.
Of those shootings, 14 have been ruled justified by grand juries; two were not presented because the suspects who were shot survived and pleaded guilty to charges, which the DA’s Office considers “an admission the officer acted reasonably”; two were out of jurisdiction; and eight are pending.
Under an agreement between law enforcement and prosecutors, officer-involved shootings in Bernalillo County by APD, BCSO and State Police are investigated by a task force composed of officers from all three departments. The task force forwards its findings to the DA’s Office, whose policy is to take the case through the unusual grand jury process.
It is a mechanism that does not appear to be used in other New Mexico jurisdictions. Cities including Denver and San Diego, Calif., do not use “investigative grand juries” for police shootings.
In those jurisdictions, the prosecutor basically decides whether there is probable cause to present a proposed indictment against an officer to a traditional target grand jury.
In El Paso, prosecutors present all police shooting cases to a target grand jury.
Discrepancies not explained
When a grand jury was asked to look into the Jones shooting, Cade provided jury instructions on three statutes related to the shooting: self-defense, in defense of another and justifiable homicide by a public officer or employee. Cade also provided a jury instruction for burglary.
He did not provide the jury instructions on manslaughter or any other crime that might apply, although prosecutors say the grand jurors have access to the standard grand jury manual — a reference and orientation guide that includes instructions on charges ranging from minor crimes to murder.
The grand jury recording of the Carr shooting also revealed that:
♦ Carr and APD officer Spencer Guillory, who was with him at the Northwest Albuquerque home where Jones was shot during a suspected burglary on Nov. 6, 2009, testified that Carr fired all three of his shots while Jones was inside the residence. Guillory testified that Jones was essentially facing the officers when the second two shots, including the fatal one, were fired.
♦ Testimony from APD ballistics and crime scene reconstruction experts showed that Carr and Jones, who was unarmed, were likely outside the residence when the second two shots were fired. The Office of the Medical Investigator pathologist who did the autopsy on Jones testified that the fatal shot struck Jones in the back.
Cade did not press Carr or Guillory on the discrepancies between their testimony and the scientific investigations.
In an interview this week, Cade said he couldn’t discuss specifics of grand jury proceedings because they are secret — even though he knew the recording had been released to the Journal. However, he agreed to speak generally about how he handles officer-involved shooting cases.
“I don’t view my role in an investigative grand jury as one of harping on one version of a story versus another,” he said. “I give the officers a chance to state what happened and why, and I always give the grand jury an opportunity to ask questions.”
Officers could be charged with perjury if prosecutors believe they have intentionally misrepresented a material fact to grand jurors, Cade said.
“But we would have to prove it was intentional versus the officer was simply wrong and not aware of where he was.”
Cade said he provides the jury instructions he thinks are most likely to apply in a given case. He pointed out that grand jurors who hear officer-involved shooting cases come from the same pool as other grand jurors. They have heard numerous criminal cases by the time they consider whether police shootings are justified.
Attorney Joe Fine, who represented Jones’ family in a wrongful death lawsuit, said the family was “shocked and hurt” by the grand jury’s conclusion.
“The testimony of officers Carr and Guillory that all APD shots were fired before Rodrick Jones was outside the residence is incredible in that such testimony is contrary to the APD ballistics report and other forensic evidence,” Fine said.
Kennedy said the entire investigative grand jury process is flawed. Prior to convening the grand jury, prosecutors meet with the officers who fired shots to review evidence.
Prosecutors “then present a subjective, one-sided version to the grand jury,” she said.
“We can’t emphasize enough how unusual this grand jury proceeding is … We have represented clients who are targets. Our clients do not meet with the DA before the hearing to go over the evidence and discuss the testimony. When our clients appear before the grand jury, they have no knowledge of other evidence against them and they are subjected to cross-examination.”
It appears police shooting cases began going to investigative grand juries in the late 1980s when Bob Schwartz, now a state district court judge, was district attorney.
If the grand juries reach a finding of “not justified,” they recommend charges against the officer to the DA’s Office, which then decides whether to present a case to a target grand jury for indictment.
This isn’t the first time the process has been criticized.
In 1991, then-chief District Judge W. John Brennan questioned why police officers should be treated differently from other citizens — and whether prosecutors had the legal authority to use investigative grand juries for police shootings.
Brennan suggested that prosecutors should either determine “probable cause” themselves and present the cases to grand juries with requests for indictments — as they do for ordinary criminal cases; or, if no probable cause is found, the cases shouldn’t go to grand juries at all.
He said at the time that the practice wasted time and was sending “a false message to the community that there’s been an independent investigation.”
The Supreme Court in its recent ruling agreed with Kennedy that there was no statutory basis for the special grand jury process, although it did not say using them was improper.
Neither Cade nor the two other deputy DAs in Bernalillo County, Mark Drebing and Debbie DePalo, could recall a single instance in which a grand jury ruled that a police shooting was not justified.
However, they pointed to several instances in which cases against police officers were taken directly to target grand juries with proposed indictments. Among those was Orlando Camacho, who fatally shot his father figure in 2007 while wearing his badge and uniform, although he was not on duty. He was charged with first-degree murder but was later acquitted.
Twohig said the DA’s Office should consider using a special prosecutor in officer-involved shooting cases.
“It appears they don’t want to seek indictments against the people they use as witnesses all the time in court,” he said. “Seriously pursuing these shooting cases would interfere with their working relationship with the police department.”
The multi-jurisdictional team that investigates police shootings was formed in 2004, not long after Kari Brandenburg became DA. Whichever department employs the shooter is designated the lead agency and sends its investigative report to the DA’s Office.
A deputy DA also responds to the scene of all police shootings.
Cade said police shootings are taken to investigative grand juries to maintain public trust in the process. “It’s a policy of our office that I happen to agree with,” Cade said. “We are letting 12 members of the community decide … I haven’t had any concerns about the cases I’ve been on call for. Officers bear a heavy burden when they put on that uniform and badge, and the courts have recognized that.”
— This article appeared on page A1 of the Albuquerque Journal