In an interview Wednesday, Brandenburg reiterated her preference for the grand jury system that local prosecutors have used since 1988.
Brandenburg agreed to suspend the practice in May after a nudge from Chief District Judge Ted Baca following Journal stories that revealed details of the special grand jury system. No police shooting has ever been ruled unjustified under the system.
But it will be up to the District Court judges to say whether the grand jury system, with a few minor tweaks, can continue.
District Court Administrator Greg Ireland declined to comment Wednesday on where the judges stand on the issue.
Potentially complicating the matter are U.S. Justice Department investigations of the Albuquerque Police Department.
One is a civil probe aimed at determining whether APD has a pattern of violating people’s civil rights, especially through the use of force. Federal officials have said the 26 APD shootings since 2010, and possibly some going back even further, will be a primary focus of that investigation.
There also are ongoing federal criminal investigations of officers, although it is unclear whether any of those is related to police shootings.
Regardless of what the judges decide, Brandenburg said her office will proceed on the backlogged police shooting cases beginning in February.
“We do realize these issues are important,” she said. “There are implications for civil cases, for the families of the victims and for the officers.”
Brandenburg and her chief deputies were criticized earlier this year for taking cases to “investigative grand juries” that don’t have the power to indict but are instead simply asked to decide whether each shooting was “justified.”
The criticism — from civil rights lawyers, Albuquerque City Councilor Dan Lewis and others — centered primarily around the way prosecutors presented the cases: They met with officers to review testimony prior to taking the cases to the special grand juries and provided grand jurors only with instructions on self-defense, defense of another and justifiable homicide by a public officer or employee.
On May 24, Brandenburg agreed to suspend the practice after receiving a letter from Baca.
“Please let this confirm our recent discussions during which you agreed to suspend, for an unspecified period of time, the use of investigative grand juries for officer involved shootings,” Baca wrote. “During this time we will meet to address the questions and concerns about these proceedings that have appeared recently in the public discourse.”
If the judges decide that a re-start of the grand jury system is acceptable, Brandenburg said her prosecutors would remind grand jurors of statutes in their manuals for homicide, voluntary manslaughter, involuntary manslaughter and aggravated battery.
And she said she would favor making grand jury transcripts public in police shooting cases.
Normally, grand jury proceedings are secret. The state Supreme Court ruled earlier this year that a plaintiff’s attorney could have access to recordings of a grand jury that investigated a January 2010 APD shooting. Subsequently, recordings of that and other police shooting grand jury proceedings were released to the Journal after a public records request.
If the judges permanently ban the practice, Brandenburg said her office would review each police shooting case in-house to determine whether probable cause exists to charge the officer with a crime.
“I stand by the old process,” Brandenburg said. “With the grand jury, everything is done under oath. That’s a huge benefit to all the parties, and it’s in the interest of justice. If we did an internal review, nothing would be done under oath. … It may be that the public is denied that. I think that would be a shame.”
Internal reviews of police shootings are common practice across the country. In Denver, for example, prosecutors try to announce their findings within a few weeks.
“That’s not practical here,” Brandenburg said, “because sometimes we don’t get police reports (on officer-involved shooting cases) for a year or more from APD.”
A multijurisdictional team with members from APD, the Bernalillo County Sheriff’s Office and State Police conducts criminal investigations of police shootings in Bernalillo County. It was formed in 2004, not long after 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.
In two of the 10 pending cases — one from April of this year, the other from August — the DA’s Office hasn’t yet received a final report.
And it’s unclear whether a multijurisdictional investigation even was conducted for a June 20 incident in which an APD SWAT officer exchanged gunfire with a suspect. According to APD, neither man was struck.
Two families of men shot by APD officers and their lawyers have launched a citizens’ petition drive to empanel a grand jury that would look at police shootings involving deadly force.
This grand jury, unlike the previous “investigative” grand juries, would have the power to indict.
Joe Kennedy, who is representing the family of Iraq war veteran Kenneth Ellis in a wrongful death lawsuit against APD, said Wednesday that about 3,000 of the 8,000 needed signatures have been obtained.
If the petition drive is successful, the group also plans to ask the judge who seats the grand jury to disqualify Brandenburg and her staff and appoint a special prosecutor.
“We understand that the financial and political realities may not accommodate appointing a special prosecutor,” he said. “This is also an effort to force Kari Brandenburg to make a decision and say in public that there was no probable cause to indict officers if that’s what she believes. That’s her job.”