New Mexico Attorney General Hector Balderas says District Attorney Kari Brandenburg didn’t violate any criminal laws but created “an appearance of impropriety” when she contacted victims, and reimbursed one of them, in property crime cases in which her son was a suspect.
Balderas also blasted the Albuquerque Police Department in a letter to Chief Gorden Eden for its handling of the investigation and for making it public shortly after referring it to the Attorney General’s Office last year seeking guidance on how to proceed.
Balderas’ letter suggests there were political reasons for the way APD handled the investigation, linking the department’s actions to Brandenburg’s handling of the high-profile police shooting of homeless camper James Boyd in March 2014.
Brandenburg filed murder charges against two officers in January – the only time she has found criminal conduct in dozens of officer-involved shootings reviewed by her office.
Eden said that the investigation began in June 2013 before he became chief in 2014 and that “as the investigation progressed it led us to a public official.”
“We appreciate the attorney general completed the investigation and made prosecutorial decisions,” Eden said. “I think it’s important to remember we asked the attorney general to look into the case and advise us.”
The seven-page letter also concludes Brandenburg’s contact with potential witnesses and alleged victims of her son Justin Koch, while not criminal, “clearly created an appearance of impropriety.”
State District Judge Alisa Hadfield has granted a defense request to remove Brandenburg from prosecuting the case against the two officers, ruling there was an appearance of a conflict.
Brandenburg’s attorney, Peter Schoenburg, took issue with the attorney general’s characterization of his client’s actions.
“That finding is unfair to Kari,” Schoenburg said. “It is wrong on the law and wrong on the rules of ethics. There was no effort to intercede in the criminal justice system on her son’s behalf.”
He said he and Brandenburg were “pleased” with the criminal findings.
Political motive alleged
The AG’s report says it appears APD kept the investigations of Brandenburg and her son together for political reasons.
“Based on our investigation, we conclude there was no legitimate justification for delaying action on the Koch case. It would have been possible for your agency to separate the investigation into possible bribery by Brandenburg from the investigation into the illegal acts alleged to have been committed by Koch to ensure that justice was achieved in that case,” the letter says.
The letter says APD completed the investigation in July 2014 and didn’t submit it to the Attorney General’s Office until November 2014, with a request for guidance.
Brandenburg said APD turned the file over to the Attorney General’s Office only after she had discussed filing criminal charges against then-detective Keith Sandy and officer Dominique Perez in the Boyd shooting death.
Balderas said the timing raises questions about APD’s motivations, not only in deciding to refer the case to the attorney general, but also when it decided to pursue an investigation into Brandenburg in the first place.
APD Chief Eden said that APD detectives “did a very good investigation” but that because of Brandenburg’s involvement, it lacked prosecutorial guidance.
“As the case changed direction, they lacked prosecutorial guidance that slowed things down,” Eden said. “We have an obligation to follow the investigation where it leads, and this investigation led us to allegations involving a public official.”
The letter also criticizes APD for making the file public shortly after it was delivered to then-Attorney General Gary King’s office.
The Journal obtained the file in late November 2014 in response to a request filed by the newspaper under the Inspection of Public Records Act and published a story in December. The request was made more than a month before the file was sent to King.
No ethical breach
The Attorney General’s Office will not report Brandenburg to the State Bar Association Disciplinary Board for violating ethical rules for attorneys, said Balderas spokesman James Hallinan.
“Under our analysis of the Rules of Professional Conduct, Brandenburg’s conduct, although concerning due to her status as a public official, did not rise to the level of a reportable violation for an attorney under the ethical rules.” Hallinan said. Brandenburg insisted shortly after the Journal reported on the investigation last year that she had done nothing wrong in trying to make restitution to the victims, some of whom were family friends.
Brandenburg was unavailable for comment Thursday because she was attending her daughter’s graduation from law school in Oklahoma.
Schoenburg said Brandenburg’s actions were not unethical.
“She was trying to make family friends victimized by her addicted son, whole,” Schoenburg said. “Just like any mother would try to reimburse a neighbor for a window their child has broken.”
But Balderas’ letter said, “Also of concern in this matter were the actions taken by Second Judicial District Attorney Kari Brandenburg. While her conduct did not rise to the level of being criminal, her lack of disclosure and actions of personally engaging with potential witnesses and alleged victims clearly created an appearance of impropriety.
“Upon learning of a criminal investigation involving her son within her jurisdiction, District Attorney Brandenburg should have immediately arranged for a special prosecutor and refrained from personally engaging potential witnesses and alleged victims in this matter involving her son.”
She also should have notified the Albuquerque Police Department that she was aware of the investigation and that she had made arrangements for a special prosecutor.
“District Attorney Brandenburg’s position as chief prosecutor and law enforcement official for the Second Judicial District requires she avoid all appearances of impropriety,” the letter says.
Schoenburg said Brandenburg had already referred prior cases involving Justin Koch, larceny and shoplifting cases investigated by APD, to 13th Judicial District Attorney Lemuel Martinez.
“A system was already in place for handling cases involving her son,” Schoenburg said. “APD was aware of that.”
Inquiry: Victims contacted DA
Albuquerque police burglary detectives began investigating allegations that Brandenburg’s son, Justin Koch, 26, who has had prior trouble with the law, was involved in two larcenies and a burglary of two homes. Koch was friends of the two sets of victims, according to the APD investigation.
During their investigation, detectives were told by the victims in the crimes that they had been in contact with Brandenburg because they suspected Koch was the thief.
Koch has not been charged in any of the cases involved in the attorney general’s letter but faces larceny and shoplifting charges arising from other incidents.
Attorney General Hector Balderas in his letter to APD Chief Gorden Eden said that although Brandenburg arranged for one victim to receive $800 from Koch’s trust account, there were no threats or requests that the victim not report the theft or her son’s involvement to police.
In the other case, the Attorney General’s Office concluded that although Brandenburg was in contact with the victims, there was no evidence that she bribed, threatened or intimidated the victims into not cooperating with police. The investigation found that victims in both cases reported the crimes and cooperated with APD’s investigation.