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Grand Jury Probe Into Deadly Force Urged

This article appeared on page A1 of the Albuquerque Journal

By Jeff Proctor / Journal Staff Writer
PUBLISHED: Thursday, August 23, 2012 at 12:05 am

Two families of men shot by Albuquerque police officers and their lawyers have launched a citizens' petition drive to empanel a grand jury that would look at police shootings involving deadly force.

If attorney Joe Kennedy, who is representing the family of Iraq war veteran Kenneth Ellis in a wrongful death lawsuit against APD, and the others can gather about 8,000 signatures, they also plan to ask the judge who seats the grand jury to disqualify District Attorney Kari Brandenburg and her staff and appoint a special prosecutor.

The grand jury would "investigate all Albuquerque police officers who used deadly force resulting in death in Bernalillo County" to determine whether any of the officers committed murder, involuntary or voluntary manslaughter or perjury.

The special prosecutor, Kennedy said, would decide whether probable cause exists to present a proposed indictment.

Acknowledging that some might question the motive of a plaintiff's attorney, Kennedy said: "If Kari Brandenburg did her job, there would be no role for me here."

Brandenburg questioned whether there was any legal authority to remove her from the process and said she is considering moving to a revised version of the way her office had presented police shooting cases to "investigative grand juries" until earlier this year.

Kennedy said the old process stacked the deck in favor of officers.

"For the families of those who have never had the opportunity of a true investigation, we are seeking to convene for the first time a real grand jury for police shooting cases," he said. "No one is looking to be vindictive here. Officers still have all their rights, and the system still presumes they were operating under the law unless proven otherwise.

"But there's a real loss of trust that the families feel, having been presented with the illusion of an objective investigation only to find out later ... that it was nothing more than a dog and pony show geared toward the exoneration of police officers."

Brandenburg and her chief deputies came under fire earlier this year after a series of Journal stories revealed for the first time details of a decadeslong practice of taking police shooting cases to "investigative grand juries" that don't have the power to indict, but are instead simply asked to decide whether each shooting was "justified."

No police shooting, including APD officer Bret Lampiris-Tremba's January 2010 shooting of Ellis, has ever been ruled unjustified.

Following the stories, on May 24, Brandenburg agreed to suspend the practice after receiving a letter from Judge Ted Baca, chief of the Second Judicial District Court in Bernalillo County.

"Please let this confirm our recent discussions during which you agreed to suspend, for an unspecified period of time, the use of investigative grand juries for officer involved shootings," Baca wrote. "During this time we will meet to address the questions and concerns about these proceedings that have appeared recently in the public discourse."

On Wednesday, Brandenburg said in an interview that she has met with Baca and Judge Reed Sheppard once and plans to do so again next week.

Though no final decision has been reached regarding a different course forward, Brandenburg said she and her deputies are leaning toward a system that's mostly unchanged from the old one.

"We are proposing to go to a grand jury and better describe the process: what we're doing and why we're doing it, emphasize the grand jury's independence and alert them to other statutes that may be applicable," she said. "We believed in the integrity of the old process."

Part of the consternation from critics of the old process came from the way local prosecutors presented the cases to grand jurors: They said they typically provided them with instructions on pertinent statutes, all related to justifiable shootings: for self-defense, defense of another and justifiable homicide by a public officer or employee.

Jurors were not provided instructions on any criminal statutes, such as what constitutes voluntary or involuntary manslaughter.

Since January 2010, APD officers have shot 25 men, 17 of them fatally. Fourteen of those cases were either justified under the old grand jury process or not presented because the person shot survived and pleaded guilty to a crime.

Brandenburg said she wasn't aware of the proposal by Kennedy and others until contacted Wednesday by a Journal reporter.

"We have been involved in a search for the best process to ensure integrity," she said. "We are open to suggestions, and we haven't been contacted by (the group seeking the signatures.) We believe the way they wish to proceed may be obstructed by the law - we're not sure they can do it."

Kennedy's petition names the Ellis case, the April 2011 case in which Christopher Torres was fatally shot by APD officer Christopher Brown and "all other police shooting cases within the statute of limitations."

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