Family of woman shot by APD cop says vital evidence was not preserved - Albuquerque Journal

Family of woman shot by APD cop says vital evidence was not preserved

The family of a young woman shot and killed by Albuquerque police in 2014 is asking for a default judgment against the city in a wrongful death suit, arguing that vital evidence in the case was not properly preserved.

Mary Hawkes

The argument centers on a series of videos recorded that April night, along with the various malfunctions that some officers said prevented their cameras from taping the deadly encounter between then-officer Jeremy Dear and Mary Hawkes.

Attorneys for the Hawkes family argue, among other things, that some videos the city has provided were altered and that the faulty cameras some officers were wearing should have been preserved as evidence.

In a hearing Wednesday, plaintiffs’ attorneys argued that the city police department had a duty to maintain that evidence and that breaching that duty should lead to sanctions.

They point to 10 specific items of evidence that were improperly preserved. The lack of that evidence, they said, would benefit the city at trial.

The city argued that default judgment is a “drastic sanction” that should be used only in extreme circumstances. They said the city had an obligation to preserve evidence only when it was put on notice that a lawsuit would be filed.

“Without such notice, city defendant cannot be expected to speculate about what conspiracy theories that plaintiffs would create concerning the cameras and the videos,” attorneys for the city wrote in a response to the Hawkes’ motion.

Judge Nan Nash is expected to decide in coming weeks whether sanctions are appropriate.

At Wednesday’s hearing, attorney Laura Schauer Ives argued that the city has turned over only altered versions of the original lapel camera recordings. An on-body camera expert said in an affidavit that the files had been edited before they were saved as evidence.

But the city holds that those files have been forensically examined and “have not been altered since they were initially recorded by the assigned cameras.”

Former Albuquerque Police Department officer Jeremy Dear

Dear has said that his camera was unplugged at the time of the shooting. In his and other cases where a camera failed to record the incident, attorneys argue that the device should have been preserved as evidence.

The city said that while the video recorded is pertinent evidence, the camera itself is not. And as to Dear’s camera specifically, they said it was sent to the manufacturer for analysis.

The company found that the camera was turned off and on during the Hawkes incident, but the reason it powered down couldn’t be determined.

Dear was fired months after shooting 19-year-old Hawkes, who was suspected of stealing a truck. The police chief has said Dear was terminated after he repeatedly failed to use his lapel camera, despite being instructed to do so following several complaints.

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