On March 21, 2013, the Bernalillo County District Attorney's office announced that it will convene a panel of senior DA's to evaluate all officer-involved fatalities. The evaluation process will replace the controversial investigative grand juries banned by Bernalillo County District Court judges. The judges banned the investigative grand jury, citing the appearance that prosecutors were not impartial and that New Mexico law does not support the process.
The announcement came nearly one week after Albuquerque's police chief said he's retiring after an eight-year tenure scarred by fatal police shootings, multimillion dollar lawsuits and a civil rights investigation. During the chief's tenure, the DA's office has been charged with determining the legality of approximately 30 officer-involved deaths.
District Attorney Kari Brandenburg said the new process will consist of a multi-step review process, where an Assistant District Attorney will overlook all aspects of the police investigation and decide if probable cause exists to charge the officer or officers with a crime.
The investigative grand jury process was a good one because it carried more weight during the fact finding process, Brandenburg said. She added the new process leaves her office somewhat toothless because of the absence of powers guaranteed by the now defunct investigative grand jury process.
“We don't think the process is as good as the investigative grand jury, but we don't have a choice because the courts have suspended it,” Brandenburg said. “We are doing the best we can do, given the options that we have.”
Under the new system for evaluating officer-involved shootings, the DA's office will no longer have the power to demand the presence of witnesses or compel testimony from the citizenry if they decline to participate.
The investigative grand jury process came under fire shortly after the city experienced a rash of officer-involved shootings—18 of them fatal—since 2010. When an officer shoots a person, the shooting is investigated by a task force involving several law enforcement agencies. The findings from the investigation are handed over to the DA's office to evaluate whether criminal charges are warranted or not. In nearly 30 years, the investigative grand jury has not found one officer-involved shooting unjustified—even in a case where APD acknowledged the officer's wrong-doing, and the city paid huge sums of money to settle the case.
The city's internal review officer ruled the 2009 shooting death of Roderick Jones, an unarmed U.S. Air Force veteran, by then APD officer Brandon Carr, unjustified and the city paid more than $950,000 to settle a wrongful death lawsuit. After more than five hours of testimony, including testimony that contradicted reports from crime scene investigators, the investigative grand jury ruled the shooting justified.
Former Fourth Judicial District prosecutor Dennis Montoya has presented cases to targeted grand juries (with the power to indict) in the past. He said after listening to segments of the investigative grand jury testimony, he sees why they ruled the shooting justified.
“The entire line of questioning is a series of ‘soft balls’ directed to an officer who is not even a first-hand witness to the actual event,” he said. “The questions and answers are designed to bias the grand jury in favor of the shooting officer and in favor of law enforcement, generally, while leaving the grand jury very cold about the deceased. He is not humanized in any way. The deceased's name is barely mentioned,” Montoya said.
Once the DA's officer gets the new system up and running, they will begin tackling a back log of approximately 12 fatal officer-involved shooting cases that have accumulated since District Court Judges first put a halt on the process back in May 2010.
One of the cases that was put on hold is that of 22-year-old Alan Gomez. An APD officer shot Alan Gomez while he held a black plastic spoon. His father Mike Gomez has been a vocal critic of both the police department and the DA's office since losing his son nearly 22 months ago.
“It's going to be two years on May 10 and it hasn't even went for an internal review. It's all politics. They are not going to bring up any of our shooting cases before the election. They are stalling,” Gomez said.
But Brandenburg said her office has worked long hours to develop the new protocol and will work just as diligently to get caught up on all the back-logged cases before July 1, 2013.
A Bernalillo County jury recently awarded Ken Ellis Jr. and his family more than $10 million in damages in a wrongful death lawsuit. Since November, Ellis and the families of other men killed by APD have circulated a petition, hoping to change how the county looks at officer-involved fatalities. If they are successful, by law, the courts will have to present all officer-involved shootings to a target grand jury with the power to pursue criminal charges.