First Judicial District Attorney Jennifer Padgett says she has been in the middle of a “paradigm shift” over how best to decide whether police officers acted lawfully in shooting citizens.
For more than a decade, Padgett’s predecessors had presented police shooting cases to “investigative grand juries” for review. In all but two cases, the panels determined the shooting officers were “justified” under New Mexico law.
But the practice in recent years has become increasingly controversial, primarily because of prosecutors’ lack of impartiality and the grand juries’ inability to return indictments even in cases they found unjustified. It has drawn the ire of families of people shot by police, civil rights groups, legal scholars and even judges, who shelved the use of investigative grand juries in Albuquerque.
“Only recently has that been questioned. So, I feel like I am at a really good point to actually examine the policy behind how we are going to treat this in the 1st.”
That’s what Padgett, the newly appointed top prosecutor for Santa Fe, Los Alamos and Rio Arriba counties, told SFR and New Mexico In Depth during an interview on March 17 for a story about the use of investigative grand juries. She said she anticipated taking a January police shooting by a Santa Fe city officer to an investigative grand jury but had not made a final decision.
Further, Padgett said she had not decided on a more permanent policy for her office.
What she didn’t say was that another police shooting case—involving NM State Police officers from April 2015—was already scheduled for an investigative grand jury on May 31. That fact came to light in an affidavit Padgett swore out on March 14, three days before her interview with SFR and NMID.
“It is the standard policy of the First Judicial District Attorney’s Office to convene a grand jury to investigate all officer involved shootings that result in death,” Padgett swore in the affidavit.
SFR and NMID obtained a copy of the affidavit this week. The DA swore it out as part of a public records lawsuit filed by the family of Ethan Noll, a 34-year-old former Marine who was fatally shot last April by state police officers in Edgewood.
According to state police, Noll refused to get out of his car following a traffic stop on April 4, 2015. That led to several hours of attempted negotiations, which included Noll threatening to shoot officers. Eventually, he got out of the car. According to a state police news release issued around the time of the shooting, he pointed an assault-style rifle at officers. Five state police officers fired at Noll, killing him.
Noll’s family has sought records—including 911 recordings, police reports, audio and video of the shooting—from state police, the Santa Fe County Sheriff’s Department and the Edgewood Police Department since days after the shooting. The agencies have refused to turn over the records, saying then-District Attorney Angela “Spence” Pacheco did not want them released until after the grand jury presentation.
In her affidavit, Padgett reiterated that position, saying release of the information could prejudice the grand jury.
Reached by telephone this week, Padgett told SFR and NMID she didn’t mention the scheduled grand jury presentation in the Noll case during her March interview because “it wasn’t on my forefront.”
“It was not an intentional omission,” she said, adding that SFR and NMID did not ask about the Noll case during the interview.
SFR and NMID did ask several questions about whether Padgett intended to use investigative grand juries for any police shooting cases and what she thought of the process as it has been used in New Mexico.
Despite her sworn affidavit, Padgett said she may not use an investigative grand jury to review the Noll shooting.
“It is an incredible disservice to the law enforcement officers and the decedent’s family to have this pending for more than a year,” she said. “So, I felt it was important to get that grand jury setting. … I didn’t want to pull the case from the grand jury and stop that momentum.”
Padgett said she has met with her top prosecutors and will meet with state police next week to discuss how her office will proceed with the Noll case. She said she hopes to decide by the end of next week whether she will use an investigative grand jury or decide herself whether the officers who shot Noll acted lawfully.
She said her statement in the affidavit about the “standard policy” of the DA’s Office referred to the “longstanding policy” of her predecessors. Padgett has not yet decided on a formal policy for reviewing police shootings.
The SFR and NMID story about investigative grand juries published March 23 “definitely got my wheels turning,” Padgett said.
“I thought at first that using the grand juries was going to be my policy as well,” she said. “But the Reporter bringing it to my attention triggered me to do a lot of research and educate myself. … My perspective has totally changed.”
Gov. Susana Martinez appointed Padgett to serve the final year of Pacheco’s term after the latter stepped down at the end of last year. Padgett has two opponents in the upcoming June Democratic primary.