ALBUQUERQUE, N.M. — Stymied by a judge’s order that indefinitely suspended the controversial use of “investigative grand juries” in police shooting cases, District Attorney Kari Brandenburg on Thursday outlined a new process she said would be more transparent and would resolve cases more quickly.
The new process will also provide a limited voice to the families of people killed by police.
Brandenburg for nearly a year has defended the previous system, under which a special grand jury that did not have the power to indict determined whether the case should be prosecuted. In the 25 years the system was in place, every police shooting case was found to be justified under New Mexico law.
Under the new process, Brandenburg’s office will determine whether there is probable cause to believe a crime was committed, and, if so, send it to a target grand jury for possible indictment.
Brandenburg described how the process would be transparent and include families.
“Our goal is to give as much (information) as possible” by making available on the 2nd Judicial District Attorney website a “findings letter” to the police chief, investigative reports, exhibits, the officer’s statement and other case documents. The website also has a description of the protocol.
Brandenburg said she is aiming to resolve 16 or 17 pending cases by July 1, and as a policy matter to have reviews completed within six months anytime there is an officer-involved shooting, accident or death in custody. In fact, she released on Thursday the first findings under the new process, a review of the fatal shooting of Mark Beechum, previously identified as Mark Macoldowna, by Albuquerque Police Officer Mario Perez.
Beechum was killed during the police callout to a burglary at the Archdiocese of Santa Fe Catholic Center in northwest Albuquerque in January 2012. In her letter of findings to the police chief, Brandenburg concluded no charges against Perez should be pursued.
Old process scuttled
After a series of Journal stories last spring, several critics of the earlier process emerged – including city councilors, civil rights attorneys, the American Civil Liberties Union, the news media and others.
The criticism centered on the perception that Brandenburg and her top prosecutors were using the investigative grand juries as rubber stamps for decisions they had already made and to deflect the responsibility of making difficult decisions about police shootings.
Among the complaints: Grand jurors were provided instructions on different versions of justified shootings but not on criminal statutes; prosecutors met with officers to review testimony, often without the officers’ attorney present, prior to grand jurors hearing the case; and Brandenburg’s chief deputies often asked leading questions of officers in the grand jury room, such as, “Were you afraid?” when asking why they shot someone.
Speaking at a press conference Thursday, Brandenburg said the new protocol underwent at least a dozen revisions.
“I think it’s going to be incredibly good,” she said. “I’ve always had faith in the (district attorney’s) office. But I want the public to have faith. They don’t know how many nights we don’t sleep.”
Now, the chief deputy DA on call when an officer-involved shooting occurs will go to the scene and will immediately open a file on the case. Next of kin will be allowed to submit a statement of relevant facts, up to 1,500 words, within a “reasonable” amount of time. The chief deputy may ask for more information, review submissions and decide if there is probable cause to believe a crime occurred.
That deputy DA will meet with Brandenburg for a preliminary conclusion, then the case will go back to the deputy.
If the two find probable cause, the case will go to a grand jury with authority to return an indictment.
“We’re doing something that to my knowledge hasn’t been done in the history of Bernalillo County,” and possibly the state, she said.
Prosecutors needed a new tack after 2nd Judicial District Court judges told Brandenburg in January to halt use of the “investigatory grand juries.” The judges cited the appearance that prosecutors are not impartial and noted a lack of legal authority authorizing the unique presentation.
Brandenburg said she still believes such grand juries were better equipped to review police killings, because they had the ability to subpoena witnesses, take testimony under oath and create a record. She also said it made sense “having 12 citizens who don’t have a dog in the fight” reviewing officer-involved shootings.
“Now, we’re exclusively involved in deciding probable cause,” she said.
Brandenburg said she fought for the investigative grand jury and laid out the pros and cons, but “no one seemed concerned about it.”
Law enforcement enjoys much broader latitude on deciding when to use lethal force than does an average citizen, Brandenburg said. She cited research that looked at officer shootings and found that one in 500 nationwide results in criminal charges.
— This article appeared on page A1 of the Albuquerque Journal