Text of the letter sent to 2nd Judicial District Court by Bernalillo County DA Brandenburg

January 7, 2013

Honorable Ted Baca

Second Judicial District Court

400 Lomas Blvd. NW

Albuquerque, New Mexico  87102

   Re:  Presentation of Officer Involved Shootings to the Grand Jury

Dear Judge Baca,

I am writing to advise you that we intend to start presenting officer-involved shooting cases to the grand jury in February and March 2013. As you know, we have suspended presentations for the past eight months and utilized the time to rethink the process, making sure it is as good as it can be. We have consulted with prosecutors and District Attorneys’ Offices throughout the state and country, conducted independent research on the topic, met with the Courts, met with members of the law enforcement community and had discussions with civil rights lawyers representing families of victims.

For thirty years, under the administrations of Steve Schiff, Bob Schwartz, Jeff Romero and I, all fatal officer-involved shootings have been presented to an investigative grand jury. The reasons for this have been numerous, but the primary intention has always been to assure the public that the incident is carefully reviewed by the District Attorney’s Office and again reviewed by twelve independent citizens who hear all relevant testimony under oath. The Courts have supported this process, not once questioning its validity or integrity until it became the topic of recent media coverage.

This is a process that has been talked about and discussed publicly throughout the years. I understand it was a campaign issue in the District Attorney’s race in 1988, and I certainly can attest to the fact it was an issue in my 2008 race. Why it became such an issue in April 2012, with everyone feigning ignorance regarding it, one can only speculate.

New Mexico law does not provide us with any alternative to the grand jury presentation other than an internal decision being made within the District Attorney’s Office. If we were to review all officer-involved shootings internally, without any review by a citizen grand jury panel, we would not have the power to subpoena records, nor compel the attendance of witnesses. Further, there are no established means for testimony to be taken under oath. For sure, this process does not offer the public the same assurance of completeness and integrity.

It is important to note, officer-involved shootings have received the attention of the very best prosecutors, most of whom are Chief Deputies. Again, this is done to bring the utmost integrity to the process. The grand juries that hear these cases have served for 6-8 weeks prior to hearing an officer-involved shooting case. They are already very familiar with the grand jury manual and criminal statutes. They also understand the importance of their role as grand jurors and their independence to make the right decision. The presentations typically take up to a day and are very detailed, unlike the usual 30-minute presentation. At the conclusion of the grand jury presentation, the grand jury has a number of options. They can request additional information, recommend the case be presented to a subsequent (target) grand jury, or find that the use of deadly force was justifiable. (See attached form.)

Our extensive evaluation of the process has led us to conclude that the present process gives the public the greatest assurance of a careful and thorough review of all critical issues. We firmly believe by presenting every fatal officer involved shooting to an investigative grand jury provides citizen scrutiny and reminds us all that law enforcement does not believe its shootings are above citizen review. However, to further ensure everyone’s confidence in this process, some improvements will be implemented. Those include:

  

1)      As an introduction to all officer-involved shooting cases, the independence of the grand jury and importance of the case will be emphasized to further alert grand jurors to the significance of the case to our community;

2)       Grand jurors will be directed  to the page numbers of other criminal statutes that they may want to review, such as homicide, aggravated battery, etc;

3)      We agree there is “just cause” to allow the Courts to release the tapes of all grand jury proceedings in officer involved shooting cases, upon request by the media or members of the public; and

4)      Some structure will be created whereby the family members of anyone killed by police action can be kept better informed and helped in a meaningful way, as the review process takes place.

As has always been the case, our presentations of officer-involved death cases will not include any opinion of the presenting attorney, as it is our continuing responsibility to never argue for any specific result, but to act merely as a conduit of information and legal advice for the grand jury to independently decide the appropriate outcome of any case. The balance and fairness of the presentations are and will be reflected in the recordings from the grand jury presentations, which the Court can choose to release.

 

We present cases to an investigative grand jury because prosecutors are prohibited from presenting any case to a “target grand jury” without “probable cause.” New Mexico law and the National District Attorneys’ Association provide that to do so would be a severe ethical breach of our responsibility. Unfortunately for the same reason, preliminary hearings cannot be utilized because a criminal complaint alleging criminal wrongdoing needs to be filed in order to engage the Court’s jurisdiction to hold a preliminary hearing.

The above amendments to the procedure include all suggestions offered by the Courts in our discussions. However, during our last meeting there was a comment that the procedure was possibly flawed because no law enforcement officer had been indicted for an officer-involved shooting. Such a proposition is fraught with too many issues to address here. I ask what shooting should have resulted in an indictment? Does the value of a process depend solely on an outcome, without consideration and a review of the facts and circumstances of each case? Secondly, as prosecutors and judges, we are cautioned against judging anything by an outcome. Clearly, our job is to seek justice and that cannot be defined by a specific outcome.

In our research we have found, regardless of the process utilized, officers are rarely indicted in officer-involved shooting cases. Though the research on numbers appears to be lacking, below are some statistics we were able to find.

1)      “Deadly force is rarely ruled unjustified- the investigation noted that in Maine,                           for example, the Attorney General’s Office has justified every single police shooting since 2000. Corroborating statistics in other states, although rarely collected, attest to the near-ubiquity of justification of use of deadly force.”

2)      Harris County (Houston, Texas), often number one in the nation in officer-involved shootings, had 229 officer-involved shootings from 2002-2008, 105 resulting in a fatality. Only 2 indictments were returned charging an officer with wrongdoing. One officer served a 6-month jail sentence and the other officer was acquitted.

3)      In Roanoke, Virginia, Caldwell, the commonwealth’s attorney for 27 years, sought only once to charge a city police officer for shooting someone. In that 1982 case, the officer was off duty when he wounded a shoplifting suspect. A grand jury chose not to return an indictment.

4)      Bumcrot, a retired investigator from the Los Angeles County Sheriff’s Department said that more than 1,000 officer-involved shootings were investigated by the department during his 34-year tenure and only one resulted in the prosecution of an officer.

5)      Of 442 officer-involved shootings reviewed since January 2001, Los Angeles County District Attorney Steve Cooley has not brought a single criminal case.

6)      A Clark County, Nevada inquest jury hasn’t ruled a fatal officer- involved shooting “criminal” in 34 years.

7)      The Erickson Commission, formed to study officer- involved shootings in Denver, Colorado, released its report in 1997 revealing only one in every 500 cases of fatal shootings in the 1970’s resulted in criminal charges.

As is obvious from the above statistics, the results in officer-involved shootings in Bernalillo County are consistent with those across the country and over the past four decades. The US Supreme Court, in its 1989 ruling in Graham v. Conner, 490 U.S. 386, 109 S.Ct. 1865,  gave a tremendous amount of latitude to officers, stating “… the calculus of reasonableness must allow for the fact that police officers are often forced to make split-second judgments, in circumstances that are tense, uncertain and rapidly evolving…” In State of New Mexico v. Mantelli, 131 N.M. 692 (App.), the Court asserted that Section 30-2-6(B), NMSA 1978, was “intended to provide police officers a wider scope of privilege than the general public with regard to the use of deadly force.”

There is no process that will satisfy all the critics, and especially those who have a monetary stake in creating controversy. However, I feel duty bound to proceed in a manner that assures the public all officer-involved shootings will be handled with the utmost integrity. Our office will carefully and thoroughly review each case, making an initial determination of probable cause. When we feel there is no probable cause, we will present the case to an investigative grand jury. When we feel there is probable cause, the case will proceed directly to a “target” grand jury. The citizen review of our decision will serve as an additional precaution to ensure the public gets a just decision. It is a process that is extremely demanding and time consuming, but one the public deserves.

I will be happy to provide you the documents we pulled the above statistics from and perhaps you can find additional statistics, as well. We also want to thank you for your time in meeting with us to better the process and address concerns.

Yours very truly,

Kari E. Brandenburg

District Attorney

xc:  Gregory T. Ireland, Court Administrator

Second Judicial District Court Judges:

   Judge Christina Argyres

   Judge C. Shannon Bacon

   Judge Beatrice Brickhouse

   Judge Charles Brown

   Judge Carl J. Butkus

   Judge Clay Campbell

   Judge Jacqueline Flores

   Judge Alisa A. Hadfield

   Judge Valerie A. Huling

   Judge Gerard Lavelle

   Judge Brianna Zamora

   Judge Alan Malott

   Judge Kenneth H. Martinez

   Judge Nan G. Nash

   Judge William E. Parnall

   Judge John J. Romero

   Judge Ross C. Sanchez

   Division IX Judge - Vacant

   Judge Denise Barela Shepherd

   Judge Reed Sheppard

   Judge Deborah Davis Walker

   Judge Stan Whitaker

   Judge Benjamin Chavez

   Judge Elizabeth Whitefield

   Division 3 Judge – Vacant