Detective Geoff Stone shifted in his chair behind the witness stand and glanced at the defendants’ table where two former Albuquerque Police Department officers sat.
Stone knew the men well. He attended the police academy around the same time as one of the men, Keith Sandy, and worked the same late-night shift on the city’s northeast side with the other, Dominique Perez.
But with his two former colleagues on trial for murder after gunning down a mentally ill homeless man in March 2014 during an hours-long standoff in the Sandia foothills, special prosecutor Randi McGinn wanted to know whether Stone’s relationship with the officers was a problem when it fell on him to investigate them.
“No,” Stone told her after a moment. “At the time, it didn’t seem like a problem.”
Stone was McGinn’s own witness.
Yet over the course of two days, McGinn struggled to prize from Stone, the lead investigator, the sort of details that would ordinarily be basic elements of a prosecutor’s case. McGinn battled with other police witnesses, too, in an unusual display of fissures between testifying officers and a prosecutor.
Of course, this was not an ordinary case.
The killing of James Boyd by Albuquerque police ignited the city’s largest street protests in a generation and fueled criticism of a department with a record of using excessive force. Capping the furor was the three-week murder trial against the two officers whose bullets felled the 38-year-old man who was camping illegally and occasionally flashed two pocket knives while surrounded by nearly 20 police officers.
The trial ended in a hung jury in October after jurors could not reach a unanimous verdict. The officers’ defense lawyers called the outcome justice, noting that nine of the jurors voted to acquit. But a close examination of the proceedings and interviews with legal experts and the special prosecutor reveal a system that is fraught with conflicts of interest and ultimately ill-equipped to determine whether a police shooting has veered from negligent to criminal.
A review by New Mexico In Depth and The New Mexican shows a patchwork of policies in how police and prosecutors across the state investigate shootings by police officers. The policies are sometimes unwritten and depend on the discretion of officials. In the end, officers are often left investigating colleagues in their own department and prosecutors find themselves weighing charges against the very people they rely upon in other cases.
The inherent flaws in the system loom not just for incoming Bernalillo County DA Raul Torrez, who must decide whether to retry the two officers after he takes office in January, but for any prosecutor considering criminal charges against an officer for an on-duty shooting.
In the weeks after the trial, McGinn offered to drop the murder charges against the officers if Sandy agreed to plead guilty to conspiracy to commit aggravated battery, but Sandy rejected the deal.
McGinn later dropped the charges against Perez, saying it was the right thing to do but declining to discuss her motivations further.
The decision was the latest twist in the first prosecution of officers for an on-duty shooting in New Mexico in recent memory, one that McGinn, in an interview three weeks after the trial, called “completely upside down, 180 degrees” the opposite of how the criminal justice system traditionally works.
The lack of consistent policies is especially significant in a state like New Mexico, where police have fatally shot more people per capita than their peers in any other state since Jan. 1, 2015, according to data maintained by the Washington Post and analyzed by The New Mexican and New Mexico In Depth. But from the investigations of those shootings to the reviews by district attorneys around the state to the laws themselves, experts say law enforcement officers are treated very differently than other homicide suspects, even when there are questions about whether their actions constituted murder.
Criminal prosecutions of officers are rare around the nation: since 2005, just 78 officers have been charged with murder or manslaughter for fatal on-duty shootings, according to Philip K. Stinson, a researcher at Bowling Green State University. Of those, only 14 have been convicted by a jury, and another 13 have pleaded guilty.
In the past two years alone, police have shot and killed more than 1,800 people in the U.S.
Experts say state laws around the country, as in New Mexico, give officers a wide berth to use deadly force. U.S. Supreme Court decisions bolster those laws. Most states leave the investigations of police shootings to the shooting officers’ colleagues and district attorneys who rely on police testimony to make everyday cases.
Taken together, those and other factors create an often insurmountable barrier to successful prosecutions, experts say, even in the most egregious cases.
National pushes to create independent agencies to probe and review police shootings have moved in fits and starts, according to experts interviewed for this story. And a discussion about creating new laws under which to examine police shootings is just beginning.
FINDING A PROSECUTOR
How McGinn even ended up on the Boyd case was an anomaly.
The officers’ defense lawyers had won the removal of Bernalillo District Attorney Kari Brandenburg for the appearance of a conflict because she had been the target of a failed APD investigation. Brandenburg asked district attorneys around the state to step in. Citing heavy caseloads and political considerations, they all turned her down. Even Attorney General Hector Balderas, in a letter to Brandenburg, said he couldn’t take the cause because he had his own conflict. Asked by a reporter what that was, he declined to say.
So Brandenburg turned to McGinn, one of the state’s best-known private trial lawyers who began her career as a prosecutor in the 1980s.
The Boyd case could serve as a model for other police shooting cases in some respects, McGinn said. She presented the case in an open preliminary hearing for a judge to decide if the officers should be tried, rather than to a secret grand jury.
But “it wasn’t like being a prosecutor,” she said in an interview. In the Boyd case “everything was against you from the start.”
That is by design and demonstrates why it is so uncommon for prosecutors to pursue charges against police, McGinn said.
“They start off not investigating a homicide but asking what did this guy [Boyd] do to assault these peace officers before they shot him?” McGinn said.
In a normal homicide investigation, she said, police would recreate the scene to figure out which officer’s bullets struck the victim and where. That didn’t happen, McGinn said. Investigators didn’t even wash off the bullets to test them.
The weapons were not in evidence, either. That’s because police returned the firearms to Sandy and Perez. And that meant a murder trial without the murder weapons.
Researchers and other experts say the investigation of a shooting by police presents just the first of several conflicts in such cases. But from review to prosecution, there are no broad standards.
Albuquerque is hardly the only city where law enforcement agencies investigate their own officers’ use of deadly force. New Mexico State Police does the same. Other agencies contract with the state police. Some departments have a policy against investigating their own officers but turn to other agencies in the same community.
Once investigators have completed their review, they typically hand it off to the local district attorney. But there is no standard policy dictating what prosecutors should do next.
Some district attorneys believe their relationship with law enforcement is too close for their offices to handle such cases and defer instead to an independent prosecutor.
Other district attorneys exercise near total discretion.
Lemuel Martinez, district attorney in Sandoval, Valencia and Cibola counties, said he decided soon after taking office in 2001 that he would not handle cases involving officers from his jurisdiction. Instead, he sends those cases to another DA.
“I don’t want to be accused of either going hard on a cop because they’re a cop or easy on a cop because they’re a cop,” Martinez said.
Down in Socorro, Sierra, Catron and Torrance counties, District Attorney Clint Wellborn maintains cases involving police do not necessarily pose a conflict of interest.
He will ask another district attorney to handle a case if he has doubts a shooting by an officer was justified, Wellborn said.
In Santa Fe, Río Arriba and Los Alamos counties, the recently elected district attorney promises to shake up the procedures for investigating the use of deadly force by police.
Marco Serna pledged during his campaign to appoint a special prosecutor to review each fatal shooting by law enforcement. That’s a change from his predecessors, who used secret, special grand juries that did not even have the power to indict officers to review police shootings.
CONFLICTS OF INTEREST
Legal scholars point to such conflicts — real or perceived — as reason alone for district attorneys to rethink how they handle investigations of law enforcement officers.
“Defendants just aren’t treated alike,” said Kate Levine, an assistant professor at St. John’s University School of Law in Queens, New York.
No group is more closely linked to prosecutors, she said. That presents a conflict of interest whenever a district attorney has the discretion and responsibility to pursue a case against a law enforcement officer.
When prosecutors pursue charges against law enforcement, trial after trial around the country has shown these are particularly difficult cases to win, said Walter Katz, a police oversight expert and the independent police auditor for the city of San Jose, Calif.
“There are a number of inherent biases — both conscious and unconscious — built into the investigation and review systems and the legal standard,” Katz said. “The natural outcome is a very low likelihood of ever bringing prosecutions in the first place. There is an even lower likelihood of these cases ending in conviction.”
Katz said watching a police shooting case play out in court can give the impression that the justice system “has been flipped on its head.” For one thing, prosecutors are placed in a role more commonly associated with defense lawyers and public defenders, against whom the system is stacked.
“Usually the prosecutor is in lock step with the police officers who are testifying,” Katz said.
Last year, Katz published a paper in the Harvard Law Review that examined alternatives to the systems used in most American cities — systems in which officers investigate their colleagues, and local district attorneys review those investigations for criminal wrongdoing. He found independent agencies that investigate police shootings, review them or both in Norway and Northern Ireland.
In the U.S., Wisconsin passed a law in 2014 that requires police chiefs to bring in investigators from another agency to probe police shootings. Gov. Andrew Cuomo signed an executive order in 2015 allowing the state attorney general to review all deaths at the hands of police officers in which the victim was unarmed, rather than leaving those decisions to local district attorneys.
Katz cautions that ideas for independent review and investigations often become fixated on outcomes. A thorough, fair, objective and transparent process is more likely to increase public trust, he said.
UPSIDE DOWN SYSTEM
Part of the reason cases against officers for on-duty shootings might seem so strange or upside down is that the laws were not really written to account for a police officer committing murder or manslaughter on the job.
Michael Gennaco, a California-based police practices expert, said the intent standards inherent in murder or manslaughter charges make prosecuting police officers for on-duty shootings difficult.
A prosecutor may have an easier time proving an officer intended to cause harm if an officer is filmed beating a suspect with a baton instead of shooting the suspect with a gun, Gennaco said.
“It’s a harder case to make when they’re using a gun, because it often happens so quickly. A clip can be emptied in a matter of seconds.”
Gennaco said there has been some discussion in the states about creating new laws to examine whether police shootings crossed the line into criminal acts. But the efforts have been limited because most state legislatures are aware of the U.S. Supreme Court protections officers have in making split-second decisions to shoot.
Levine has studied a range of alternatives, including the appointment of federal prosecutors and removing prosecutors from the process entirely by creating civilian oversight boards to investigate misconduct by police.
The least costly solution, Levine said, would be to automatically remove each case involving police to another district. Still, a prosecutor from another district will also be less accountable to the community most concerned with the case, she added.
Perhaps the best alternative, according to Levine, is to leave prosecutorial decisions about police to state attorneys general, who are accountable to the community but are less likely to have a direct connection to local law enforcement.
A spokesman for Attorney General Hector Balderas said his office is reviewing policies on investigating and prosecuting shootings by police in New Mexico.
Meanwhile, lawmakers in Santa Fe and Washington, D.C., are drafting legislation they said would guarantee independent prosecutors for such cases. U.S. Rep. Michelle Lujan Grisham co-sponsored a bill in 2015 that would have pressured states to enact policies requiring the appointment of an independent prosecutor for any case involving the use of deadly force by a law enforcement officer.
But the proposed Police Training and Independent Review Act has not gone far in Congress and law enforcement organizations have lined up in opposition.
At the state Legislature, Rep. Patricia Roybal Caballero is proposing a bill that would task the Attorney General’s Office with investigating shootings by police. The Albuquerque Democrat’s bill would also force prosecutors to present the evidence in open court, rather than to a grand jury behind closed doors.
The prospects for both bills are dim, however. Republicans are unlikely to advance the Police Training and Independent Review Act, particularly with Donald Trump soon to assume the presidency after campaigning against the “war” on law enforcement. And the approximately $1.5-million-a-year price tag on Roybal Caballero’s bill will likely doom it at a time when state legislators are grappling with a budget crisis.
In the meantime, these cases will continue to be nightmares for prosecutors, particularly when there is video evidence that raises clear questions about whether a shooting was criminal, such as in the Boyd case.
“Those are the types of cases that thank god we haven’t had here,” said Mark D’Antonio, the district attorney for Doña Ana County, where several agencies are involved in investigating shootings by police though it would ultimately fall to him rather than a grand jury to press charges.
McGinn is not sure whether New Mexicans really want to see more officers put on trial.
“We want to believe that they’re heroes, and that’s why it takes such an extraordinary amount to prove the opposite and that they should be convicted,” McGinn said.
But she is also fearful of what that mindset might mean for the justice system.
“If people don’t have confidence that if a police officer crosses the line, they’ll be held accountable, they lose all confidence in both the police and in the criminal justice system. That can’t be how it works here,” she said. “If that’s how it works, then we’re going to have more police shootings and more people attacking police because they’re afraid of them when they show up.”