Copyright © 2021 Albuquerque Journal
Prosecutors are constitutionally required to disclose evidence that could be favorable to a defendant to defense attorneys, including whether their law enforcement witnesses have been found to be unreliable or biased. If they don’t, they can be penalized and even disbarred.
But law enforcement officers don’t face penalties for not sharing their misconduct with prosecutors.
Senate Bill 192 would change that.
The bill – drafted by the 2nd Judicial District Attorney’s Office and sponsored by Senate Majority Whip Linda Lopez, D-Albuquerque – would require officers and agencies to disclose exculpatory or impeachment evidence to prosecutors.
This material – called Giglio disclosures after the 1972 Supreme Court case Giglio v. United States – covers “dishonesty, conduct establishing a lack of integrity in investigation, discriminatory bias against a protracted class of persons, bias in favor of or against a participant in the proceeding and criminal charges and convictions.”
Under the bill, if officers don’t comply, they could face suspension or revocation of their law enforcement certification.
“It’s in the constitution that prosecutors have to enquire and disclose the information,” District Attorney Raúl Torrez said. “What is not clear and is not set forth by the Legislature is to what extent law enforcement partners have to cooperate in that process. If they decided … that they’re going to interpret the constitution a different way and not comply, that’s not something that will be permitted under this bill.”
Representatives of the Law Offices of the Public Defender, the New Mexico Criminal Defense Lawyers Association and the American Civil Liberties Union of New Mexico all spoke in support of the bill at the Senate Health and Public Affairs committee.
The committee advanced the bill without recommendation on Monday, a motion Sen. Liz Stefanics, D-Cerrillos, made because she said it’s a complicated measure and the committee couldn’t give it a “full, robust hearing” since members were coming and going.
Last fall, Torrez launched an initiative to send officers questionnaires to determine if they have any Giglio disclosures.
He said that, of about 265 questionnaires his office has distributed so far, they found five officers with conduct that needed to be disclosed to the defense. However, Torrez stressed, this does not necessarily mean that his prosecutors won’t call those officers as witnesses, especially if they are essential for the case.
The officers and the cases they are involved in are listed on the DA’s website.
Torrez said his office began working on the bill due to the Bernalillo County sheriff’s opposition to the initiative. Sheriff Manuel Gonzales initially directed his deputies not to respond to the questionnaire and instead answer two questions about whether they had been found to have been untruthful or provided false or deliberately misleading testimony.
The two agencies say they are now working together to find common ground.
In a statement, Sheriff Gonzales suggested the bill is unnecessary and called it “little more than a symbolic repeat of what is already established case law.”
“Citizens would rather see legislatures spending their time on bills that help hold criminals accountable,” Gonzales wrote in a statement. “For some reason, that doesn’t seem to be the focus, and it should be.”