Brandenburg sent a letter on Monday to Second Judicial District Court judges saying she will begin scheduling the first of 12 pending police shooting cases for grand jury presentations in February and March.
The judges, however, still aren’t so sure.
District Court Administrator Greg Ireland said in an interview Thursday that there’s still a lingering question as to whether Brandenburg has the legal authority to use grand juries for officer-involved shooting cases.
“We still don’t understand what legal authority exists,” Ireland said. “We have asked (for the DA’s) perception of this question, and we still haven’t heard back.”
“The law is unclear, but there’s certainly nothing that prohibits it,” Brandenburg said in an interview. “Since we’ve been doing this (nearly) 30 years, and there have been many, many judges involved … we think that gives us a really good track record.”
Journal stories last year revealed for the first time details of the grand jury presentations on police shootings. Brandenburg, after a series of meetings with judges and others, suspended the practice last spring.
Since 2010, Albuquerque police officers have shot at 27 men, striking 24 and killing 17. The high number of shootings and other high-profile use-of-of force incidents have led the U.S. Department of Justice to launch a sweeping investigation of APD.
Brandenburg’s suspension of the grand jury presentations left a dozen police shooting cases sitting in a backlog.
At a news conference on Thursday, she said those cases need to be decided, for the officers’ sake as well as the community’s. She said she prefers the grand jury presentations as opposed to the DA’s Office deciding itself whether police shootings merit criminal charges, as is done by most other district attorneys.
Local activists, civil rights lawyers, city councilors and others were surprised after reading the Journal stories to learn that grand juries hearing police shooting cases didn’t have the power to indict. Rather, they were simply asked to determine whether a shooting was “justified under New Mexico law.”
Criticism of the process centered around the way Brandenburg’s deputies presented the cases. For example, grand juries were given instructions only on justified shootings, and prosecutors met with officers to review their testimony prior to the presentments.
Brandenburg said in her letter to the judges this week that she plans to direct grand juries to statutes such as murder, aggravated battery with a deadly weapon and manslaughter in addition to providing instructions in justified shootings.
“We would emphasize the importance of the case and the grand juries’ independence,” she said.
Brandenburg also said she would support the court in releasing recordings of the proceedings to the public. The Journal obtained several of the recordings last year after a public records request.
But the question of legal authority to use “investigative grand juries” in police shootings remains. It was first raised in a civil wrongful death lawsuit filed in an APD officer’s fatal 2010 shooting of Iraq war veteran Kenneth Ellis III.
In that case, the state Supreme Court ruled that there is no “constitutional authority” for Brandenburg to present police shootings to the special grand juries. The high court, however, did not specifically prohibit her from doing so.
— This article appeared on page C1 of the Albuquerque Journal